author: Mr. Justice Hatchett

text:
    Abraham Weinberg, Appellant, v. Fanny Sterman Weinberg, Appellee.
    Gen. No. 30,890.
    1. Marriage — nullity of marriage of first cousins. Under Ca-hill’s St. ch. 89, 11, and ch. 38, K 357, a marriage in this State between persons who are cousins of the first degree is absolutely void, and ineffectual under any circumstances to bind the parties or to confer marital rights.
    2. Marriage — nullity of marriage of first cousins solemnized without State in violation of Uniform Marriage Evasion Act. Where persons prohibited to intermarry because of consanguinity by Cahill’s St. ch. 89, If 1, being residents of this State, leave it for the sole purpose of having their marriage solemnized under the laws of a State wherein such marriages are not prohibited, and thereafter return to and continue their residence in this State, their marriage is null and void.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding. Heard iff the first division of this court for the first district ai; the March term, 1926.
    Reversed and remanded with directions.
    Opinion filed November 29, 1926.
    Henry J. Brandt, for appellant.
    No appearance for appellee.
   Mr. Justice Hatchett

delivered the opinion of the court.

This is an appeal by the complainant from a decree which dismissed his bill of complaint for want of equity.

The bill of complaint alleges that the complainant was married to the defendant in the city of Louisville, Kentucky, on August 27, 1924; that they immediately returned to Chicago after the said marriage; that they never cohabited, it having been agreed between them that they should not live together until said marriage was celebrated according to the Hebrew rites, which was never done; that on September 6,1924, defendant returned with her mother to Buenos Aires, Argentine, South America, where she has continued to reside ever since.

The bill further avers that the defendant is a> first cousin of said complainant; that neither the defendant nor the complainant was ever a resident of the State of Kentucky, and that at the time of the marriage both, were residents of the State of Illinois; that they never intended to reside in the State of Kentucky, and that at the time of the said marriage there was a statute in force in the State of Illinois declaring marriages between cousins incestuous and void; that said statute, being section 1, chapter 89, Illinois Revised Statutes [Cahill’s St. ch. 89, [[1] provides:

“That hereafter marriages between parents and children, including grand-parents and grand-children of every degree, between brothers and sisters of the half, as well as of the whole blood, between uncles and nieces, aunts and nephews, and between cousins of the first degree, are declared to be incestuous and void. This section shall extend to illegitimate as well as legitimate children and relations.”

The bill prayed that the marriage between complainant and defendant might be decreed to be null and void ab initio and for other relief. Defendant was served by publication, but has not appeared.

Upon the hearing the complainant testified that he had lived in Chicago, Illinois, for 18 years; that the defendant was his first cousin, being the daughter of the sister of his mother; that he was 26 and she 21 years of age at the time of the marriage .which was celebrated at Louisville, Kentucky; that they did not intend to reside in Kentucky but “just went there for the ceremony and came right back to Illinois”; that they went to Kentucky because he had been told that the marriage of cousins in Kentucky was legal but that it was illegal in Illinois; that he knew that he went to Kentucky to avoid the law; that the marriage took place in Louisville on August 27, 1924; that both parties resided in Chicago and returned to Chicago immediately after the ceremony. In fact, every material allegation of the bill seems to have been sustained by the evidence of complainant and other witnesses.

That section of the statute which is above quoted as part of the bill has been construed in this State in Arado v. Arado, 281 Ill. 123, and it was there held that a marriage between cousins of the first degree was void in the sense of being a nullity; that it was ineffectual undér any circumstances to bind the parties or to confer marital rights; that it was not to be construed as being voidable or possessing validity until disaffirmed, and that the right to disaffirm might not be lost by conduct creating an equitable estoppel. The reasoning in that case was based to a great extent upon paragraph 357 of chapter 38 of the Criminal Code [Cahill’s St. ch. 38, ft 357] which provides in substance that marriages between persons within the degrees of consanguinity are incestuous and void, and that persons entering into such marriages shall be punished by imprisonment in the penitentiary.

Moreover, there was in existence at the time these parties left the State of Illinois for the purpose of having their marriage solemnized in the State of Kentucky, another statute known as the Uniform Marriage Evasion Act, approved June 25, 1915 (chapter 89, page 1670, Smith-Hurd’s Illinois Rev. St. 1925; Cahill’s St. ch. 89, If 20), which act provides:

“That if any person residing and intending to continue to reside in this State and who is disabled or prohibited from contracting marriage under the laws of this State shall go into another State or country and there contract a marriage prohibited and declared ” void by the laws of this State, such marriage shall be null and void for all purposes in this State with the same effect as though such prohibited marriage had been entered into in this State.”

This statute has not been repealed and must, we think, be held, in cases where it is applicable, to have changed the general rule that the validity of a marriage is determined by the law of the place where the contract is entered into. We think the complainant is entitled under the evidence to the relief prayed

for in Ms bill. The decree will therefore be reversed and the cause remanded with directions to enter such a decree.

Reversed and remanded with directions.

McSurely, P. J., and Johnston, J., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Max Hirsch, Appellee, v. Home Appliances, Inc., Appellant.
    Gen. No. 30,973.
    1. Landlord and tenant — duty of landlord to relet premises after abandonment thereof by tenant before expiration of term. The abandonment of leased premises before the expiration of the term places no obligation upon the landlord to relet them, or to exercise any diligence in that behalf, as a prerequisite to his right to enforce the covenants of the lease respecting the payment of rent for the unexpired portion of the term.
    2. Landlord and tenant — sufficiency of affidavit of merits' to secure vacation of judgment by confession for rent procured after abandonment of premises on refusal of landlord to permit sublease. Where a lease conditioned the right of the lessee to sublet upon the consent of the landlord, and further provided that if the tenant abandoned the premises before his term expired the right of the landlord to enforce the covenant to pay rent as to the unexpired portion of the term should not be conditioned upon the exercise by him of any diligence to relet the premises, no meritorious defense requiring the setting aside of a judgment by confession in an action for rent under such covenant, was presented by an affidavit of merits alleging that the landlord had refused to permit the lessee to sublet except under impossible conditions, where there was no allegation of facts warranting an inference that the landlord consented to a surrender of the leased premises, or that after abandoning the premises the lessee tendered a tenant who would take the premises for the same use and for the balance of the lessee’s term.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed November 29, 1926.
    Winston, Strawn & Shaw, for appellant; Harold A. Smith, of counsel.
    Eisendrath, Solomon & Borden, for appellee; David S. Eisendrath, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by the defendant in the trial court and from an order denying its motion to set aside a judgment theretofore entered by confession upon a written lease.

By the lease plaintiff demised to defendant certain premises in the city of Chicago for a period of two years, beginning May 1, 1924, for a monthly rental of $250, payable in advance.

The judgment was for the sum of $850, including $100 for attorneys ’ fees.

By the terms of the lease the premises were demised to defendant “to be occupied for a store-room for the storage and sale of Household Appliances & Electrical Fixtures and for no other purpose whatever.”

By another paragraph the lease provided: “Said premises shall not be sublet in whole.or in part to any person other than Lessee, and Lessee shall not assign this lease without in each case the consent in writing of Lessor first had and obtained.”

By the twelfth paragraph thereof the lease provided that if the lessee vacated or abandoned the premises, or permitted the same to remain vacant for 10 days, or failed to pay rent, or violated any other covenant, “lessee’s right to the possession of the demised premises thereupon shall terminate with or without any notice or demand whatever * * * and if the lessor so elects, but not otherwise, and with or without such notice of election and any notice or demand whatsoever, this lease shall thereupon terminate, and upon the termination of lessee’s right of possession as aforesaid, whether this lease be terminated or not, the lessee agrees to surrender possession * * * and hereby grants to lessor full and free license to enter into and upon said premises, or any part thereof, to take possession thereof * * * but such entry of said premises shall not constitute a trespass or forcible entry or detainer nor shall it cause a forfeiture of rent due by virtue thereof, nor waiver of any covenant, agreement or promise in said lease contained to be performed by lessee.”

In another paragraph the lease provided:

“If lessee’s right to the possession of said premises shall be terminated in any way said premises, or any part thereof, may, but need not be, relet by lessor, for the account and benefit of lessee for such rent and upon such terms and to such person or persons and for such period or periods as may seem fit to the lessor, but lessor shall not be required to accept or receive any tenant offered by lessee nor to do any act whatsoever or exercise any diligence whatsoever in or about the procuring of another occupant or tenant to mitigate the damages of lessee, or otherwise, the lessee hereby waiving the use of any care or diligence by lessor in the re-letting thereof; and if a sufficient sum shall not be received from such re-letting * * * lessee agrees to pay and satisfy all deficiency, but the acceptance of a tenant by lessor in place of lessee shall not operate as a cancellation hereof nor1 to release lessee from the performance of any covenant, promise or agreement herein contained and performance by any substituted tenant by the payment of rent or otherwise shall constitute only satisfaction pro tanto of the obligation of lessee arising hereunder.”

The amended affidavit, which was filed on behalf of the defendant and in support of its motion to set aside the judgment, sets up the execution of the lease and alleges by way of defense to the claim for rent:

“That on, to wit, June 22, 1925, and at other times prior thereto, the defendant, finding that its occupancy of said premises was costly and unprofitable and causing a net loss to the defendant of approximately $500 per month, and being desirous of vacating said premises conferred with the plaintiff with reference to subletting or assigning said leasehold and submitted to the plaintiff one C. Lukis, as a thoroughly reliable, satisfactory assignee or sublessee, who was ready, willing and able to lease said premises from the plaintiff or defendant for the purpose of conducting a candy and confectionery store and otherwise to undertake the performance of all of the defendant’s covenants under said lease;
“That the plaintiff stated that the defendant’s business was satisfactory to the plaintiff and that he was willing to> accept said C. Lukis as a tenant but only provided he should enter into a lease directly with the plaintiff at a large increase in rental, to wit, a rental of $500 per month, and refused to accept said C. Lukis as an assignee or sublessee from the defendant;
“That said C. Lukis refused to pay the exorbitant rental of $500 per month, but offered to perform the covenants and conditions of the lease from the plaintiff to the defendant, and also offered to enter into a lease with the plaintiff for the balance of defendant’s term or for a longer term up to five years, based upon the then market value of said premises, which rental was estimated by said C. Lukis at the sum of $300 per month, and this the plaintiff refused to do.
“Affiant further states that on, to wit, the 30th day of June, 1925, it vacated the premises, removed its property therefrom, and placed the keys in the hands of the plaintiff personally.
“That within a day or two after the first day of July, 1925, plaintiff placed upon said premises a sign ‘To Let’ and thereafter continued to demand as rental for said premises a rental greatly in excess of the rental provided in defendant’s said lease.
“Affiant further states that by reason of the facts aforesaid, and the refusal of the plaintiff to accept a thoroughly responsible, reliable and satisfactory assignee of the remainder of the defendant’s term, there is nothing due under said lease to the plaintiff.”

The briefs of the parties to this cause do not disclose any disagreement as to the rule to be applied upon motions to open up a judgment by confession. Such a motion is addressed to the sound discretion of the court, and the order of the court will be reversed only for an abuse of discretion.

The affidavit in support of the motion must disclose a meritorious defense, and it is construed most strongly against the defendant. C'ounteraffidavits are not received, and if a meritorious case is disclosed, the judgment will usually be set aside upon such terms as the court may deem just, and a trial granted. These rules are so well settled that a citation of authorities is deemed unnecessary.

The briefs further disclose divergent views upon the rule of law applicable when a tenant abandons the leased premises and the landlord re-enters under the terms of the lease.

The theory of the defendant is that in such case, in compliance with the general rule, it is the duty of a damaged party to use reasonable diligence in order to mitigate the damages sustained (see Peck v. Chicago Rys. Co., 270 Ill. 34; Sutherland on Damages [4th Ed.] vol. 1, sec. 88, p. 311; 17 C. J. 767); and that it is the duty of the landlord lessor in such case to relet the premises, if possible, and apply the rent received in mitigation of the damages sustained.

It is conceded that the authorities on this proposition are conflicting, defendant contending that its theory has been approved by the Supreme Court of Illinois in West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill. 156, and by the Supreme Court of the United States in International Trust Co. v. Weeks, 203 U. S. 364, following Edmonds v. Rust & Richardson Drug Co., 191 Mass. 123.

It is also pointed out that the decisions of the Appellate Court on this question have been conflicting.

The rule for which defendant contends seems to have been first announced in a case arising in the Second District (Resser v. Corwin, 72 Ill. App. 625), where the rule was asserted without the citation of any authority tending to support it. The law as there stated has also been followed in two cases by the Appellate Court of the Fourth District, namely, Hinde v. Madansky, 161 Ill. App. 216, and Contratto v. Star Brewery Co., 165 Ill. App. 507.

Also, the Second Division of this court in two abstracted opinions, namely, Sears v. Curtis, 189 Ill. App. 420, and Levy v. Burkstrom, 191 Ill. App. 478, seem to have approved of the same rule, while in the later case of Marling v. Allison, 213 Ill. App. 224, that court adheres to the same rule, citing with approval International Trust Co. v. Weeks, supra, and Woodbury v. Sparrell, 198 Mass. 1, 84 N. E. 441. That the Second Division, however, is not committed to this statement of law in the broad way for which defendant contends, is indicated by the opinions of that court as rendered in Consumers Market House Co. v. Powers, 192 Ill. App. 89, and West v. McNaughton, 211 Ill. App. 261.

In Harmon v. Callahan, 214 Ill. App. 104, the Third Division of this court, while expressing the opinion that the law was not “altogether plain,” says: “It would seem to be the law that where a lease is made, and subsequently the premises are abandoned by the tenant, and following that there is merely a re-entry by the landlord, the original contract still stands and the tenant is liable on his promise to pay rent; that mere abandonment and re-entry do not cancel the lease; and, further, that, under such circumstances, the mere abandonment of the premises by the tenant and re-entry by the landlord does not give rise to an obligation on the landlord to endeavor to re-rent. Of course, after re-entry, the landlord may by writing make himself liable to exercise diligence in re-renting, or he may re-enter and relet and be chargeable with the rents he actually obtains.”

That opinion also states that the question as to the liability of the landlord for a negligent failure to endeavor to rerent the premises was not involved in West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., supra.

In so far as this Division of the Appellate Court is concerned, it has, we believe, at all times consistently held that there was ordinarily no obligation upon a landlord to rerent the premises where the same were abandoned by the tenant before the expiration of the lease.

In Rau v. Baker, 118 Ill. App. 150, in an opinion by Mr. Justice Adams, this court discussed the case of West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., supra, saying: which the lessee was liable,’ ” citing Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514.

“In that case the lessee sent to the agents of the lessor the keys of the demised building, with a letter to the effect that the lessee could not use the building, to which the agents replied that they would not consent to a cancellation of the lease. After the agents received the keys they put up ‘to rent’ signs on the building, and the lessee claimed that this showed a surrender of the property. The court held to the contrary, saying, among other things: ‘Upon the abandonment of the leased premises by the tenant, it was the right and the duty of the landlord to take charge of the premises, preserve them from injury, and, if it could, re-rent them, thus reducing the damages for

This court further said:

“ ‘In case of an abandonment, without fault of the landlord, or as the result of his acts, he may re-enter and again rent the premises, and credit the lessee with the proceeds; and his so taking possession does not relieve from the payment of rent. ’ This was said in answer to the claim by the tenant that the landlord’s entry was an eviction. While in case of abandonment by the tenant the authorities are that the landlord may re-enter and re-rent, if he can, we know of no case in which it has been held that the landlord must, if he can, re-rent or lose his remedy against the lessee on the lease; nor do we think any such case can be found. The contract remains in force, notwithstanding the abandonment of the premises by the tenant, and the tenant’s covenant to pay rent is unimpaired ; and we cannot understand how the tenant, by his own wrongful act, can impose on his landlord the alternative of diligently seeking another tenant or losing his remedy on the covenant.”

To this construction of the language used by the Supreme Court in West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., supra, this court has since uniformly adhered, as will be indicated by a consideration of Scanlon v. Hoerth, 151 Ill. App. 582; Porter v. Duzeski, 182 Ill. App. 6, and Millers Mut. Casualty Co. v. Insurance Exchange Bldg. Corp., 218 Ill. App. 12; and that such is the better rule by weight of authority, see 16 R C. L., § 483, p. 973, and 13 L. R. A. (N. S.) 405.

The decisions of this court, therefore, as well as the weight of authority, commit us against the rule for which defendant contends, and against the theory of the defense upon which the affidavit of merits was based, and, while the question has never been squarely passed upon by the Supreme Court of this State, we are disposed to follow the reasoning in Muller v. Beck, 94 N. J. L. 311.

But whichever theory or rule should be adopted in this respect, it seems to us (construing the affidavit of defendant most strongly against it, as we must) that it fails to set up a meritorious defense. In the statement of facts we have recited at length the provisions of the lease in anticipation of this point. No case is cited from any court of any State from which it would not be easy to distinguish the record which we must here consider. No case holds, so far as we are aware, that the parties to a lease may not enter into a valid agreement with respect to this question by which the parties would be bound (and when we come to examine the lease it is at once apparent that the parties have specifically agreed that the landlord shall in no case be bound) to do the thing which defendant now contends plaintiff is obligated to do. If there is any decision anywhere which holds that the parties may not contract freely with each other with respect to such a situation as is disclosed by the affidavit of merits, that decision has not been called to our attention.

Again, if we examine closely the amended affidavit submitted in support of the motion, it appears therefrom that the request of the defendant to be released from its obligations of the lease was made on June 22, 1925, and that it was not until eight days thereafter, namely, June 30,1925, that it vacated the premises, removing its property therefrom and placing the keys in the hands of the plaintiff. The lease, by its terms, was not assignable, except by the consent of the plaintiff given in writing; yet according to this affidavit the tenant in possession made demand upon his landlord that he accept a tenant other than himself and a tenant who proposed to conduct in the premises of the plaintiff a business other and different from that which, according to the terms of the lease, might be conducted therein. It would certainly be a novel proposition to hold that a tenant in possession might thus force consent to an assignment from a landlord. It is true that the affidavit states that plaintiff said that the proposed tenant’s business was satisfactory and that he was willing to accept him as a tenant, provided he would pay a larger rental per month. For aught that is disclosed by this affidavit, the use of plaintiff’s premises for the purpose to which the proposed tenant was to devote it, would have been worth the higher rent which was demanded.

The only acts alleged to have taken place after defendant vacated the premises are: First, that the keys were placed in the hands of the plaintiff personally ; second, that within a day or two after July 1 the plaintiff placed upon the premises a sign “To Let”; and third, that he thereafter continued to demand as rental for the premises a sum greatly in excess of the rental provided in defendant’s lease.

There is no allegation that the landlord accepted the keys, nor any other fact from which a surrender and acceptance by the landlord, plaintiff, could be inferred. The placing of a sign “To Let” upon the premises is not shown to be in any way inconsistent with the provisions of the lease. The precise amount of increase in rent demanded is not alleged, nor is there any assertion that after the abandonment a tenant, who would take the premises for the same use and for the balance of the defendant’s term, was tendered. Even if wé adopt the rule laid down by the Massachusetts courts, this affidavit tendered in support of the motion to set aside the judgment failed to show a meritorious defense.

The order is therefore affirmed.

Affirmed.

McSurely, P. J., and Johnston, J., concur.


author: Mr. Justice Matchett Mr. Justice Johhstoh

text:
    Foreman Trust & Savings Bank, Administrator of the Estate of Kazimir Proscievich, Deceased, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 31,097.
    1. Master and servant — exclusion- of other remedies where Federal Employers’ Liability Act applicable. Where the Federal Employers’ Liability Act applies, all other remedies are excluded.
    2. Master and servant — question as to engagement of employee in interstate commerce as one for jury. The question whether an employee of an interstate carrier by railroad was, at the time of his injury, engaged in interstate commerce, is one1 for the jury.
    3. Statutes — controlling effect of Federal construction of Federal statute. The construction placed upon a Federal statute by the Federal courts is controlling upon the State courts.
    4. Master and servant — test as to whether employee of carrier by railroad engaged, in interstate commerce when injured, under Federal Employers’ Liability Act. The test as to whether an employee of a carrier was engaged in interstate commerce at the time of his injury, so as to render applicable the Federal Employers’ Liability Act, is, Was the employee, at such time, engaged in interstate transportation, or in work so closely related thereto as to be practically a part of it?
    5. Master and servant — burden of proof in action under Federal Employers’ Liability Act as to engagement of injured employee in interstate commerce. In an action for injuries to an employee of a carrier by railroad, the burden of proof that at the time of such injury he was engaged in interstate commerce, so renders applicable the Federal Employers’ Liability Act, rests upon the plaintiff.
    6. Master and servant — when employee not engaged- in interstate commerce. An employee of a railroad, injured while performing services in the course of his émployment as light car inspector, was not, at the time of such injury, engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act, where his injury occurred while he was making temporary repairs upon a car of a foreign railroad while it was standing upon a sidetrack in the employer’s yards whereon it had been placed after an interstate shipment had been unloaded therefrom because the defective condition of the car rendered its further movement unsafe, and where following the making of such temporary repairs the car was hauled to another part of the yards by a train carrying both interstate and intrastate freight, and there was no evidence as to the intention of the carrier with respect to the further use of the car after such interstate shipment was unloaded therefrom.
    Johnston, J., dissenting.
    Appeal by defendant from the Superior Court of Cook county; the Hon. James S. Baldwin, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed November 29, 1926.
    Rehearing denied December 13, 1926.
    Kretzinger, Kretzinger & Smith, for appellant.
    Morse Ives, H. H. Patterson and C. C. Bodenstab, for appellee; H. H. Patterson, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action brought under the Federal Employers’ Liability Act, Barnes Federal Code, § 8069 [Cahill’s St. ch. 114, fifí 321-329], and on trial by a jury, the plaintiff administrator had a verdict for $18,000, on which the court, overruling motions for a new trial and in arrest, entered judgment.

At the close of plaintiff’s evidence and again at the close of all the evidence, there were requests by the defendant for an instructed verdict in its favor, which motions were denied, and it is argued here that the jury should have been so instructed and that the plaintiff cannot recover because its intestate, at the time when he received the injuries which resulted in his death, was not employed in interstate commerce. After a careful consideration of the evidence we are of the opinion that this is the controlling question in the case.

For the most part the facts bearing upon that issue were placed in the record by stipulation, and the material facts are, we think, undisputed and as follows:

The defendant was and is a common carrier engaged in intrastate and interstate commerce. The accident, which resulted in the death of plaintiff’s intestate, occurred on April 24,1924, on one of the tracks of defendant’s yard near Twelfth Street in Chicago. The intestate was at that time employed by defendant and was performing services for it as a light car inspector. At the particular time that he received his injury he was in the course of his employment making repairs upon an empty freight car No. 2363, which belonged to the Chicago River and Indiana Railroad. The empty car in question was then standing on what was known as the long or “C” track of defendant’s yard. The injury, which resulted in the death of the intestate, was caused by a train of cars moved backward by an engine under the control of defendant’s employees upon this track and against certain other cars, to which said car No. 2363 was at that time coupled. This car No. 2363, upon which the intestate was working, had on that day been used to bring an interstate shipment of meat from the Union Stock Yards of Chicago, and this shipment, after its arrival, was unloaded at defendant’s freight house at Twelfth Street. The meat was later reloaded and continued its interstate journey, but not in this car No. 2363.

In the course of his employment the deceased inspected car No. 2363 at the freight house and put abad order card on it. There was evidence, to which defendant objected, tending to show that the deceased then told the conductor that he would have to do some more work on the car and asked the conductor where he was going to put it, to which the conductor replied that he was going to put the car on the long track, and the empty car was then placed upon said track, where the deceased commenced to make the repairs and where, while making the same, he was injured.

On the same day this car No. 2363 was moved by the defendant from the long track and hauled out to what was known as the Elsdon yards, belonging to defendant. It was hauled out by what was known as the midnight transfer train, and this train carried freight and merchandise which were in transportation by defendant to points outside the State of Illinois. That train contained both interstate and intrastate cars, and it was being made up on the long track at the time the accident occurred, at about 5.45 p. m. There is no evidence tending to show whether the Chicago River and Indiana Railroad was doing interstate or intrastate business.

There is evidence in the record tending to show that car No. 2363, at the time of its arrival, was in such condition that it could not be safely removed in a train. The iron strap that held the draw bar and coupler up was loose so as to drop down about three inches, and the brake beam was broken so that it was necessary to wire it up. There were from Twelfth Street to the Elsdon yards tunnels subways and crossovers which, the evidence tended to show, would make the movement of the car unsafe unless it was repaired. There were no repair tracks at Twelfth Street, and only one car repairer was on duty there at a time. The custom was to make light repairs only at Twelfth Street so that the cars might be moved to the Elsdon yards at Fifty-first Street, where the general repair work was done. Car No. 2363 was dropped off at Elsdon yards, and there is no further evidence in the record indicating its next movement, nor is there any evidence in the record tending to show what the intention of the defendant company was with reference to its use after the interstate shipment of meat was unloaded at defendant’s freight house on Twelfth Street.

As in all cases where rules of law prescribed by one sovereign power obtain within the territorial jurisdiction of another sovereignty and where the rule operating on the subject matter within the one jurisdiction is exclusive of the other, so in the construction of the Federal Employers’ Liability Act it often becomes a difficult question to determine when the statute is and when it is not applicable. The confusion results from the inherent difficulty of determining the rule that should be applied under different circumstances. The constitutional power to enact such legislation as the Federal Employers’ Liability Act is derived by the National Congress from the interstate commerce clause of the Constitution of the United States, and a law of Congress which would assume to impose the obligations of that statute upon carriers engaged in a purely intrastate commerce, would be invalid. Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1. The act, however, where it does apply is exclusive of other remedies. Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U. S. 611, 70 L. Ed. 757, 46 Sup. Ct. 420, and the question of whether a plaintiff’s intestate was engaged in interstate commerce at the time of receiving injuries resulting in his death is a question for the jury. Brown v. Illinois Terminal Co., 319 Ill. 326; Pennsylvania Co. v. Donat, 239 U. S. 50; North Carolina R. Co. v. Zachary, 232 U. S. 248. However, as the statute under which the action is brought is distinctly a Federal one, the construction placed upon the act by the Federal courts is at all times controlling and an examination of the many cases cited in the briefs indicates, as was stated in Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, that, “The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?” Or as was said in Shanks v. Delaware, L. & W. R. Co., 239 U. S. 536: “The true test of employment in such commerce in the sense intended is, Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?”

In so far as we are advised by the briefs, no more comprehensive definition has been attempted by the Federal courts, and most of the cases cited seem to turn on the question of whether the particular circumstances bring the case within, or leave it without, the definition as thus stated.

Indeed, in a comparatively recent case, Industrial Accident Commission of State of California v. Davis, 259 U. S. 182, the Supreme Court of the United States said that it has not attempted to lay down “a precise ruling” that would enable “an instant undisputed application,” and in that connection again repeated the rule as laid down in Shanks v. Delaware, L. & W. R. Co., supra, stating that this test was followed in Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, and Southern Pac. Co. v Industrial Accident Commission of State of California, 251 U. S. 259.

The plaintiff in the Shanks case received injuries while working in the repair shop of a common carrier upon an engine which had been employed in interstate commerce and was, as the court says, “destined to be so employed again.” It is pointed out in that opinion that there is a difference in the instrumentalities of interstate commerce, and it is said: “Equipment out of use, withdrawn for repairs, may or may not partake of that character, according to circumstances, and among the circumstances is the time taken for repairs — the due relation of the withdrawal from use. ’ ’ The particular circumstances there were that the engine upon which the plaintiff worked was sent to the shop for overhauling on December 19, 1918; that the work upon it was not completed until February 25, 1919, and that the accident occurred while the work was being done on February 1,1919. The court clearly distinguishes that from another case, saying of the engine: “It was not interrupted in an interstate haul to be repaired and go on,” citing Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353, and Chicago, K. & S. R. Co. v. Kindlesparker, 246 U. S. 657, on one of which cases the plaintiff here relies.

It is practically impossible and would probably not he helpful to attempt a review of the particular circumstances under which the courts have held that a given employment was either within or without the rule, as in Kinzell v. Chicago, M. & St. P. R. Co., 250 U. S. 130, where an employee in charge of a car attached to a dump train used in filling in earth in the replacement of a railroad trestle of an interstate carrier (the employee also being engaged in the work of removing dirt and stone from between, the rails of the track) was held to be engaged in interstate commerce; or as in North Carolina R. Co. v. Zachary, supra, where it was held that the hauling of empty cars from one State to another is interstate commerce, and that an employee who was working on an engine presently to be used in hauling an interstate train, was likewise engaged; or in Baltimore & O. R. Co. v. Fletchner, 300 Fed. 318, where a switchman coupling up intrastate and interstate cars was held to be so engaged; or in Pedersen v. Delaware, L. & W. R. Co., supra, where a plaintiff, carrying bolts and rivets from a tool car to a bridge spanning an interstate road, to be used the next day in repairing the bridge, was likewise held to be so employed; or in Erie R. Co. v. Szary, 253 U. S. 86; Erie R. Co. v. Collins, 253 U. S. 77, and New York Cent. & H. River R. Co. v. Carr, 238 U. S. 260; all of which follow that decision; or Southern R. Co. v. Puckett, 244 U. S. 571, and Seaboard Air Line Ry. v. Koennecke, 239 U. S. 352, where it was held that a plaintiff engaged in repairing a disabled car which blocked a line used in interstate commerce was working in interstate commerce within the meaning of the act.

The cases seem to agree that the burden of showing that the sovereignty of the State abates in favor of that of the National Government is upon the plaintiff. Chicago & A. R. Co. v. Industrial Commission, 290 Ill. 599, and the cases also seem to draw a clear distinction between original construction work in the preparation of instrumentalities which may thereafter be used in interstate commerce and work done in the way of repairing such instrumentalities after the same have been actually constructed and devoted to an interstate use, holding in the first instance that one employed in doing such work is not engaged in interstate commerce, and in the latter case that he is.

A further distinction seems to run through all the cases between instrumentalities which are permanently devoted to interstate commerce and those which are so devoted only in a transitory way, it being held that in the case of those which are permanent, work done upon the same by way of repair is to be considered as in interstate commerce, while as to those used transitorily, the work will be considered as interstate or intrastate, according to the particular circumstances which indicate a purpose that the movement of the instrumentality is for an interstate or intrastate purpose. Schauffele v. Director General of Railroads, 276 Fed. 115; Minneapolis & St. L. R. Co. v. Winters, supra.

This court was required to consider such question in Bishop v. Chicago, M. & St. P. Ry. Co., 217 Ill. App. 96, in a case where the plaintiff was injured while repairing a car, the last commercial service of which had been in interstate commerce and which after the repairs were made (it was disclosed by the evidence) was next used in interstate commerce, and where the evidence failed to disclose that during the interval between these two interstate services, while the car was undergoing repair, it was designed or intended to be next used in interstate commerce. The evidence there tended to show that it might have been designed to use the car next in either interstate or intrastate commerce. It was held that the plaintiff, under such state of facts, failed to establish a case under the statute.

In Roach v. Chicago, R. I. & P. Ry. Co., 227 Ill. App. 240, a plaintiff switchman was injured while performing switching services in and about the defendant’s freight house and adjoining yards in Chicago, where it appeared from the evidence that there were a number of empty cars and some partially loaded standing on a certain track. One of these cars had arrived from Springfield, Ohio, carrying United States mail, which was unloaded on the morning of the day of its arrival, and the car was immediately reloaded and started with mail destined for St. Paul, Minnesota. The switching crew, wishing to place some more empty cars upon the track upon which this mail car stood, started to couple an engine to the mail car, intending to pull it out of the way of an intrastate movement of other cars, and in so doing the plaintiff was injured.

We said in that case: “The purpose of the movement of the interstate mail car was wholly unrelated to its interstate transportation,” and held plaintiff could not recover under the statute.

Prom this review of the decisions, we are persuaded the evidence in this case fails to make prima facie proof of a case for plaintiff under the statute. When the interstate shipment of meat was unloaded at Twelfth Street, so far as the evidence here discloses, the interstate movement of the car ceased. Other movements, first to the track and later to the yards for repair, were presumptively intrastate movements, and there is no evidence from which a jury could reasonably find that such movements were other than intrastate movements. In fact, there is not a scintilla of evidence in the record showing that the movements of the car, first to the track and afterwards to the yards, were in connection with any interstate purpose. The plaintiff cannot establish her case by a guess. It may or may not have been that the movement of the car to the track and afterwards to the yards for repair was only the interruption of a general interstate movement; but if such is the case, this record is wholly devoid of any testimony tending to show that material fact.

While there are some cases cited which, carried to a logical conclusion, might lead us to hold otherwise, in view of the clear statements in Industrial Commission v. Davis, supra, which has been followed in the more recent case of Davis v. Baltimore & O. R. Co., 10 F. (2d) 140, we think the evidence wholly insufficient to establish a case for plaintiff; and since the judgment must for this reason be reversed, it will be unnecessary to discuss other alleged errors assigned and argued.

Reversed cmd remanded.

Mr. Justice Johhstoh

dissenting: The question whether the plaintiff’s intestate was engaged in interstate commerce was a question of fact for the jury. And I do not think that the verdict of the jury is manifestly against the weight of the evidence. I disagree with the conclusion of the majority opinion that the evidence is “wholly insufficient to establish a case for the jury.” I think that the question is a close and doubtful one. But the rule is that a reviewing court should not set aside the verdict of a jury merely because there may be a doubt of the correctness of the verdict, unless the verdict is manifestly against the weight of the evidence. Illinois Cent. R. Co. v. Cowles, 32 Ill. 116, 121; De Forrest v. Oder, 42 Ill. 500, 501. In my view there is sufficient evidence to sustain the verdict. The jury reasonably might have found that the car still retained its interstate character at the time of the accident; that the mere unloading of the car at the freight house at Twelfth Street did not terminate the interstate character of the car; that the ultimate destination of the car was the Elsdon yards at Fifty-first Street, and that the interstate character of the car was not terminated until the car reached its ultimate destination; that it was the custom to make only light repairs at Twelfth Street and to make the complete repairs at the Elsdon yards; that when the car was being unloaded at the freight house at Twelfth Street, it was still an interstate car; that the car could not be left permanently on the track at the freight house at Twelfth Street after it was unloaded, but had to be moved to Elsdon yards; and that while the car was in transit from Twelfth Street, a temporary location, to the Elsdon yards, the permanent ultimate destination, it retained its interstate character.

Mr. Presiding Justice McSurely specially concurring : In my opinion, the unloading of the interstate freight terminated the interstate character of the car, and in the absence of any proof as to whether its next movement would be interstate or intrastate, the legal presumption that it would be intrastate prevails. Any other rule would lead to confusion.


author: Mr. Presiding Justice Crow

text:
    Johnson Oil Refining Company, Appellant, v. C. E. Smoot, Appellee.
    Gen. No. 7,970.
    1, Pleading — right of plaintiff, under leave to reply double, to abide by demurrer to part of plea while filing replication to another part thereof. Where a demurrer to a plea, grounded upon the theory that it attempted to plead two distinct defenses, was overruled, plaintiff could not, under leave to reply double, elect to abide his demurrer as to one of such defenses and join issue as to the other.
    2. .Saving questions fob review — failure to- assign error upon overruling of demurrer to plea as precluding reliance upon defectiveness thereof. The validity of a plea is not before the court, on appeal, where plaintiff fails to assign error upon the order of the trial court overruling his demurrer thereto.
    3. Guaranty — when signer of employee’s fidelity bond assumes liability of guarantor. Where a contract between principal and agent provided that the agent would furnish a personal bond in a named sum “guaranteed by some responsible person * * * insuring” the principal against the fraud or dishonesty of the agent, etc., and against loss by reason of the agent’s violation of the terms of the contract, one who signed such a bond became a guarantor of the performance of all the terms of the contract, and his obligation was a continuing one, covering the liability of the principal for a succession of periods.
    4. Guaranty — duty of obligee of fidelity bond to notify surety of breach by principal warranting discharge before continuing him, in service. There is an implied undertaking upon the part of the obligee of a bond guaranteeing the fidelity of an employee that he will riot knowingly retain such employee in his service after a breach of the guaranty justifying his discharge, and if he elects to so retain him, without the guarantor’s consent, the latter will not be liable in the event of a further breach.
    5. Guaranty — right of surety of employee’s fidelity bond to release after failure of obligee to notify of principal’s default, as affected by provision of bond against release because of forbearance to enforce default. A provision in a bond guaranteeing the fidelity of an employee that no forbearance on the part of the obligee towards the principal in respect of his failure to perform any of the obligations of his contract or the bond should operate to release the surety thereunder, does not prevent exoneration of the surety by reason of the fact that the obligee retained the principal in his service after a breach of the guaranty justifying his discharge, without notifying the surety of the default.
    6. Words and phrases — forbearance defined. Forbearance means delay in enforcing rights, and includes the act by which a creditor waits for the payment of a debt by his debtor after it becomes due.
    7. Guaranty — when allowance for attorney’s fees properly omitted from judgment against surety under fidelity bond. In an action upon a bond guaranteeing the fidelity of an employee it was not error to refuse to allow plaintiff attorney’s fees, in addition to the amount in which the surety was found indebted under the bond, where the undertaking of the guarantor in that behalf was to indemnify the obligee against any loss, etc., including attorney’s fees, which the obligee “may pay or sustain or be put to” through a breach of the bond, where it was admitted that no counsel fees were due at the time the suit was brought.

      Appeal by plaintiff from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed November 6, 1926.
    Love & Kilgore, for appellant; Charles Y. Freeman, of counsel.
    Jones, MoIntire & Jones, for appellee.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

On this appeal there is no controversy as to the facts. The action was begun to recover the sum of $589.99 and attorneys’ fees upon the facts herein stated. A judgment was rendered by the court trying the case without a jury.

Lawrence Harry began work for appellant under a contract as one of its agents selling oil and its products. To secure the performance of the contract he entered into bond in the sum of $2,000 with appellee as surety. It is provided in said bond that if the said Lawrence Harry shall, so long as he continues in the employ of the plaintiff, faithfully, honestly and diligently perform all of his duties as such agent and shall duly account to plaintiff or its successors and assigns for all moneys, merchandise and. property whatsoever, the said Lawrence Harry may have had or has and shall, when required, deliver all of said moneys, merchandise and property to the plaintiff and shall at all times keep the plaintiff indemnified against all loss, costs, damages and expenses, including attorneys’ fees, which the plaintiff may pay or sustain or be put to by reason of its taking the said Lawrence Harry into its employ, or by reason of any account, embezzlement, mismanagement, neglect or default of the said Lawrence Harry while in the employ of the plaintiff and shall fully perform all the obligations of his contract, then this obligation to be void.

It is averred in the declaration that the said Lawrence Harry entered upon his employment as such agent, and continued to act as such agent of the plaintiff until the third day of March, 1924, at which time it was discovered by the plaintiff that the said Lawrence Harry was in default of the discharge of his duty as agent of the plaintiff on his failure to account for moneys received by him in the course of such employment in the sum of $589.99, an itemized statement of which is attached and marked Exhibit “C” to the said declaration; that thereupon on the said date mentioned, the plaintiff demanded that the defendant, Lawrence Harry, pay to it the sum of five hundred eighty-nine and 99/100 ($589.99) dollars and that the said Lawrence Harry refused to pay same and that thereupon he checked out on the said date as the agent of the plaintiff and though often requested since, he has failed and refused to pay the said sum or any part thereof; that on like demand, the defendant, C. E. Smoot, surety on the said bond, has failed and refused to pay the said money or any part thereof; that by reason of the foregoing, it has been compelled to and has employed attorneys at law to bring suit upon the bond herein set out against the principal and surety on the said bond and that in relation thereto, it has paid or become liable to pay the attorneys so employed the sum of one hundred ($100) dollars in its attempt to enforce the bonds and the obligations of the principal and surety hereinbefore referred to, to the damage of plaintiff in the sum of seven hundred fifty ($750) dollars, whereby an action has accrued to the plaintiff to demand of the defendants the sum of two thousand ($2,000) dollars.

To the second amended declaration upon which the cause was heard, defendant filed three pleas. The first was nil debet, the second non damnificatus. The third plea averred that while the said Lawrence Harry was in the employ of the plaintiff as its agent on, to wit, December 3, 1923, the plaintiff caused an audit to be made of the accounts of the said Lawrence Harry with the plaintiff and discovered the said agent Lawrence Harry was then and there short and in default in his said accounts with the plaintiff in the sum of $40.50, yet the plaintiff well knowing of the shortage and default did not notify the surety, the defendant, C. E. Smoot, thereof, but retained the said Lawrence Harry in its employ without the consent of the defendant, C. E. Smoot, surety on said bond, by reason whereof the surety was released and discharged from any and all liability on said bond after the date of the said audit on, to wit, December 3, 1923; that the defendant paid to the plaintiff the said sum of $40.50 prior to the commencement of his suit, and that the balance of the shortage and default in the said declaration occurred after the date of said audit of December 3, 1923.

To the last plea the plaintiff filed a demurrer, and for special ground alleged that said plea “sets up two distinct defenses, one by way of payment and the other by way of bar for the alleged laches of the plaintiff.” The demurrer to the plea having been overruled the record shows “leave is granted plaintiff to reply double and plaintiff elects to stand by its demurrer as to said plea except as to forty dollars alleged payment and as to that it files its replication.” The replication is:

“And the plaintiff as to that part of the plea of the defendant by him thirdly above pleaded by way of payment, says, that it, the plaintiff, by reason of anything in that plea alleged, ought not be barred from having its action aforesaid, because it says that the defendant did not pay to the plaintiff the said sum of Forty Dollars and Fifty Cents ($40.50) in his said third plea in that behalf mentioned in manner and form as the defendant has in that plea alleged.”

The court heard the evidence and found for the plaintiff for the sum of $40.50 and rendered judgment for that sum and for costs, to reverse which this appeal is prosecuted.

The evidence is in small compass and shows substantially the following facts: Lawrence Harry was appointed agent for plaintiff and entered upon his duties as such, in the sale of oil, gasoline and other articles usually sold at such stations. The appointment was made on the third day of October, 1922. On the third day of December, 1923, Alsen, an auditor for the plaintiff auditing the account of Harry, ascertained therefrom that he was short in his accounts at that time in the sum of $40.50. No notice of that shortage was sent to Smoot. Another audit was made on the third day of March, 1924. At that time the audit disclosed that Harry was short in his accounts in the sum of $468, not including money advanced to him by his employer. The fact of this shortage was communicated to Smoot by letter dated March 11, 1924, after Harry was discharged. The letter contained the following paragraphs:

“We hope Mr. Lawrence Harry will arrange to pay this shortage himself, however, we are informing you of the shortage at this time so that you may use your influence in getting him to pay it himself, thereby making it unnecessary for us to call on you as his bondsman for payment.
“Trusting we may count on your co-operation in the collection of this shortage we remain. ’ ’

To this letter Smoot replied under the date of March 16, 1924:

“As I have been away from home for the last three days I did not have a chance to answer your letter of March 11th, sooner.
“I have not got to see Mr. L. Harry in regard to the shortage that is due you but as I see it, there is only one way to handle a case of this kind and that is by way of the law, whatever may be the result.
“I assure you I will cooperate with you in every way about this matter and hope you will appreciate my position to such an extent that you will lend a hand to see that all concerned will be justly dealt with.
“If the outstanding accounts can be collected, it will reduce the shortage about $100. Will you notify them not to pay their accounts to Mr. Harry as he is not in your employ.
“If I have to lose this money I expect to make Lawrence Harry suffer for it and through your company is the way I will have to go. ”

The record presents an anomalous situation, arising, as we think, out of a misapprehension of the pleadings. To defendant’s third plea of release or discharge from liability demurrer was overruled. The ground of demurrer was that the plea was double in that it attempted to plead two distinct defenses — one in bar by delay and the other by payment. The demurrer having been overruled, plaintiff asked and obtained leave to reply double. Thereupon it elected to abide its demurrer as to said plea except as to $40 alleged payment and as to that protested the bar and denied the payment as alleged. The misapprehension was as to the nature of the plea. Defendant’s theory of the law governing his case was that, being a guarantor in an indefinite and continuing contract of guaranty, and the guarantee having failed to notify him of a breach ascertained by it on the third day of December, 1923, $40.50 being then due, he was discharged from all liability on his contract for damages occurring after that time. But under the rules of good pleading, it was necessary to aver payment, or a readiness to pay that amount. Under his theory of legal right that was the limit of his responsibility under his contract.

Upon hornbook learning relating to common law pleading the plea must extend to the whole count. If it answered only a portion, but professed to answer the whole, judgment nil dicit should have been entered against him because he had not effectually answered the whole count or declaration, or so much of it as it purported to answer if purporting to answer part. It is apparent, therefore, that the plea did answer the whole declaration. The demurrer to it having been overruled, plaintiff could not abide part and join issue on part. Plaintiff, appellant here, has not assigned error upon the court’s ruling on its demurrer. The plea being good or bad in its entirety, and no error assigned upon the court’s judgment as to its validity, we are not permitted on appeal to review its ruling in that respect.

Concisely stated, the question presented upon the record is, Was defendant liable for a greater sum than that for which judgment was rendered? Appellee’s contention at the trial was that he was not, because there had been a previous default by the principal to pay to plaintiff the sum of $40.50 and that plaintiff did not notify him of that default, but permitted the principal to continue to act as its agent three months longer when the shortage amounted to $468. Appellant contests appellee’s contention on the ground that under the instrument in suit the law imposed no duty to notify defendant of default. It insists that it was the duty of the surety to ascertain the condition of the principal’s account and therefore notice to him must be imputed.

In determining the question of liability it is necessary to ascertain the status created by the transaction between parties. A contract of 23 paragraphs was entered into between appellant and Lawrence Harry by which he became the sales agent for it. By paragraph 15 it was stipulated among others that agent will furnish a personal bond for $2,000, guaranteed by some responsible person satisfactory to the company, insuring the company against the fraud or dishonesty of the agent, his agents, or servants with respect to the property or proceeds thereof belonging to the company in his own or their hands under the terms of this agreement, or against any loss or damage which the company may suffer by reason of the violation by the agent of any of the provisions of this agreement. Official audits of the station will be made and net commissions will be figured as follows: Unpaid balance due general office from Johnson Oil Refining Company, Sadorus, Illinois, deducted from merchandise inventory plus cash in bank.

By other paragraphs, sales made by the agent or his agents were required to be paid for cash on delivery; cash received from sales, collections or otherwise, by the agent, shall be deposited in the bank at Sadorus to the credit of the company in an account to be opened in its name, from which the agent “shall possess the right to draw the funds so deposited to cover invoices to the Johnson Oil Refining Company at Sadorus and for commissions earned and due the agent,” with restrictions now immaterial, contained in the clause. All expenses of sale and handling shall be borne by the agent who shall furnish all equipment necessary for carrying on the business, with exceptions stated, the agent to be responsible for all repairs and renewals to entire equipment used by the agent at his own expense. A further requirement is, furnishing weekly inventories of gasoline and kerosene, lubricating oils and grease at the end of each month. The agent was required to reimburse the company for any loss by sales made for unauthorized prices or on credit or by any other act or omission by the agent, his agents or employees. There are other clauses in the contract which might involve pecuniary responsibility on the part of the agent.

The instrument upon which suit was brought bears the same date as the contract, October 31, 1922. The contract is expressly referred to in the bond and made part of it. The nature of the undertaking of appellee is fixed by the stipulation of the parties and by the nature of the instrument expressing it. We cannot impute to the parties ignorance of the meaning and legal effect of the terms they have employed. While there is nothing in the record disclosing the author of the contract and the bond, it is not an unwarranted assumption that appellant prepared both. The provisions in the contract that the agent will furnish a personal bond “guaranteed by some responsible individual” must be accepted as the expression of its view of the extent of the obligation assumed by each person. When appellee signed the instrument, therefore, he signed it as a guarantor, of the performance of all the terms of the written contract between defendant and Harry, its agent. It was a continuing guaranty for it contemplated liability of the principal for a succession of periods.

In support of the judgment of the circuit court and its holding on propositions of law, appellee relies upon Estate of Rapp v. Phoenix Ins. Co., 113 Ill. 390. In that case two principal questions were determined. One was the liability of the estate of the guarantor, Rapp, for defaults occurring after his death; the other, whether he or his estate was bound for defaults of the principal subsequent to that first ascertained by the employer, and of which it did not notify the guarantor. The first question is not, the second is, now involved.

The facts were: that the agents faithfully made monthly settlements with the Insurance Company for 10 months after the death of Rapp and paid to it all that was due to January 1, 1883; that they failed to make settlement for the months of January and February, 1883; that the Insurance Company did not notify the executors of Rapp of the failure of the agents to make the settlement for January, until after the failure to make the February settlement. The entire deficit for the two months was $260, $188.90 of which was for the month of January. The circuit court allowed the amount due for January and refused to allow that for February. This court affirmed the judgment, no opinion being published. The case went to the Supreme Court upon a certificate of importance, and the judgment was affirmed. The court on a state of facts identical with this case, by Mr. Justice Mulkey, said:

“We are of opinion the court also ruled properly in refusing to allow appellee the amount of deficit for the month of February, — not on the ground, however, the bond had become functus officio, but because the company in retaining in its service J. B. Booker & Co. after notice of the January default, which was just cause for discharging them, violated a duty which it impliedly assumed to Rapp and his legal representatives on accepting the bond. When the employer of a clerk or other agent takes from another a bond of indemnity, or other instrument, guaranteeing the honesty and fidelity of such clerk or agent while in the service of the employer, the latter impliedly stipulates that he will not knowingly retain such clerk or agent in his service after a breach of the guaranty justifying his discharge, and that in the event he does so without the surety’s consent, it is to be at the employer’s own risk. This is not only fair dealing and common honesty, but it is a rule of law also. The principle here announced is well established by the authorities. Phillips v. Foxall, 27 L. T. (N. S.) 231; 7 L. R. Q. B. 666; Anderson v. Aston, 28 L. T. (N. S.) 35; 8 L. R. Exch. 73.
“Holding, as we do, the ruling of the trial court was correct in allowing the claim for the amount it did, it follows the Appellate Court properly affirmed the order.” Dickey and Craig, JJ., dissented upon the ground alone that the death of Rapp terminated his obligation as guarantor, and therefore his estate was not liable. But the point here under consideration was by their silence approved.

The legal principle was approved and applied in Delbridge v. Lake, H. P. & C. B. & L. Assn., 82 Ill. App. 388, and in Donnell Mfg. Co. v. Jones, 49 Ill. App. 327. See also Haven v. Chicago Sash, Door & Blind Co., 96 Ill. App. 92, 103.

It is insisted by counsel for appellant that unless the retention of the money shown by the first audit to be due the company was of such nature as to be the subject of a criminal prosecution or the result of moral turpitude, it was not necessary to notify defendant, the guarantor. There are cases holding that to discharge a surety or guarantor where the principal is in default, the default must partake of the nature of a crime or moral turpitude. In 32 Cyc. 79, the general rule is stated:

“Thus it would seem that on one hand there is no active duty whatever on the employer either to notify the sureties or to dismiss the agent or employee for a mere default which does not in itself involve dishonesty, or to give notice of a mere failure to report or account punctually or turn over or remit funds, under the terms of the contract, the performance of which is secured unless there is knowledge of an actual defalcation, while at the same time it is recognized that mere incompetency or negligence on the part of a servant may be so gross or habitual that good faith to the sureties would require the master to discharge the servant or at least give notice to the sureties; or, as has been also held, the rule applies to any breach of the employment, whether by dishonesty or not, which might have justified the dismissal by the employer or master, so that a plea showing a breach, prior to that sued for, without notice to the surety, and for which he might have required dismissal, is good.”

In support of the last statement, Sanderson v. Aston, L. R. 8 Exch. 73, is cited, as in Rapp case, supra. In note 65 to the text, it is said, citing the Illinois cases, supra, that they support a broader rule than that generally prevailing. Many other cases are cited in support of the more liberal rule toward sureties. A further and cogent reason for enforcing the principle is the obligation resting upon an obligee or party to a contract to do nothing that will enhance the damages of an obligor, but on the contrary to minimize them. He may not lie in wait until damages are increased to his profit and successfully invoke the arm of the law to aid him.

We are of the opinion, therefore, that the court did not err in holding the first proposition of law embracing that defense tendered by defendant on ground urged by appellant. • The cases cited by it have all been examined and are clearly distinguishable from this. The Rapp case on this point met the approval of the whole court. Its authority is not impaired by reason of its being arrayed with the decisions of other courts constituting, though it may be, a minority of the courts of the country.

It is contended by appellant that even if notice was required to be given under the law applicable to the bond the duty was obviated by the last clause of the bond, following:

“Provided that any forbearance on the part of the Company, its successors or assigns, toward the Agent in respect to his failure or neglect to perform any of the obligations of his said contract of employment, or of this bond, shall not in any wise release or exonerate in whole or in part the Surety in respect of his liability under this bond.”

“Forbearance” does not bear the relation to appellant’s inactivity that it contends for. As defined by the authorities cited by it, the term means “delay in enforcing rights. The act by which a creditor waits for the payment of a debt due him by the debtor after it becomes due.” The complaint made against appellant by the surety is, not any delay in enforcing its rights, against its agent, but its failure to notify the surety that any right had arisen that might be enforced. If it had notified the surety of the default and he had not demanded immediate action, he would not now be complaining of delay, or any indulgence granted the agent. There is nothing in that clause militating against the plea of want of notice to appellee of the agent’s default. The court did not err, therefore, in holding the second proposition of law against the contention of appellant.

At the trial counsel for plaintiff admitted that no attorney’s fees were due at the time the suit was brought. If they may be recovered under the provision of the bond, the court did not improperly refuse to allow them. Nor is appellee bound upon any principle of waiver upon the evidence appearing in the record.

Finding no substantial error in the record the judgment of the circuit court is affirmed.

Affirmed.


text:
    William Rowan, Administrator of the Estate of Elbert Rowan, Deceased, Appellee, v. Bartonville Bus Line, Appellant.
    Gen. No. 7,977.
    1. Carriers — no recovery by passenger exposing himself to infury by cars on parallel track. The general rule is that a passenger who knowingly places himself in a position, such that cars on a parallel track may strike him, may not recover from the carrier for injuries so sustained.
    2. Cabbiebs — duty of buses operated for hire as to protection of passengers. Buses operated for public hire under State authority assume all the responsibility of other carriers for hire to protect passengers with all the care and foresight consistent with the mode of conveyance and exercise of their business.

      3. Negligence — When defendant’s request for directed verdict properly refused. Defendant’s request for directed verdict was properly refused when the evidence showed that the defendant’s negligence was the proximate cause of injury to plaintiff’s intestate.
    4. Evidence — necessity for consideration of all evidence relating to issue. To establish a fact or, event, all the statements and evidence relating thereto must be considered.
    5. Instructions — refusal of charge based upon fact which evidence does not tend to establish. In the absence of evidence fairly tending to show a fact, it is not error to refuse to give instruction based thereon.
    6. Carriers — when evidence fails to show passenger’s arm hanging outside of window when struck by passing truck. Evidence in action for injury to arm of motor bus passenger struck by passing truck held not to show that arm was hanging outside of window of bus when accident occurred.
    Appeal by defendant from the Circuit Court of Tazewell county; the Hon. Frank Lindley, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed November 6, 1926.
    Barnett, Wilson & Tichenor, for appellant.
    Smith & Smith, for appellee.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

Elbert Rowan, while a passenger on a bus of appellant, received an injury from which he died. Appellee having been appointed administrator an action was prosecuted in which plaintiff recovered a judgment for the sum of $6,000 as damages for the death. To reverse the judgment defendant has brought the record to this court assigning the usual errors in such cases.

Appellant was a common carrier of passengers for hire. Its equipment for carriage were buses operated on the State hard road between Peoria and Pekin. It was duly authorized so to operate by a certificate of convenience and necessity granted by the Commerce Commission. On the occasion of the injury Elbert Rowan was sitting on the left side of the bus two seats in the rear of the driver. He had worked all night and was going to his home in Pekin. The weather was warm and all windows were open. After taking his seat he placed his left arm on the window sill the witnesses saying it was lying on the sill, some saying the elbow extended slightly over the outside. He wore no coat and his shirt sleeves were rolled up. His head rested on the back of the seat in which he was sitting and he was asleep. The window sill was three and one-half inches wide.

The bus in which deceased was a passenger was traveling in a southerly direction and a motor truck carrying cattle was traveling in a northerly direction at the time of the injury. The concrete road at the place of the injury was 15 feet wide, being narrower than at the point where he took passage on a the bus. The road being a State highway had a black line in the middle four to six inches in width. The evidence shows that immediately before the injury the wheels of the bus were very close to the black line, and the body was extended over it. The driver of the truck testified that the bus was “hugging the black line” when he came close to it and he turned to the right onto the “shoulder” to pass it. He says the elbow . of some one was protruding over the window sill. He passed the bus with his truck but felt no concussion and knew nothing of the accident until overtaken by the bus, the driver of which turned around after the accident and overtook him. Deceased was sitting on the side next to the black line. As the truck approached some one on it called attention to the elbow and the truck was turned to the right, the wheels being on the dirt shoulder. Hamilton Hendricks was a passenger going south to Peoria. He was a locomotive fireman for the Cleveland, Cincinnati, Chicago & St. Louis Railroad. He had driven taxicabs and trucks. His observation of what transpired at and immediately before the accident, as disclosed by the abstract, shows he was alert and his testimony evidently impressed the jury with its truthfulness as well as its accuracy. It was corroborated by all the witnesses testifying. It might reasonably be expected, his business being that of locomotive fireman, he would more readily grasp the event, quickly executed as it was, than would others not so employed. In his testimony he says: “I was riding in the bus, and in my work is safety first to look out for obstructions and stuff and I was noticing that this road was some narrower, it seems to me along there, and I noticed the close passage of trucks and automobiles and vehicles as we met them, and as we came down the road it seemed to me that this truck was or this Bartonville bus was hugging the black line pretty close; if anything, overhanging just slightly.” In this he is corroborated by those on the truck. The witnesses were in general agreement that the impact attending the injury was a “crash like tin or glass or something of that kind.” One of the men on the cattle truck noticed the elbow of deceased and called attention of the driver to it and he “laid over.” The men on the truck did not know it had come in contact with anything while passing the bus. The head of the ulna was broken. There was a compound fracture of the bones of the forearm about two inches above the middle, with the upper ends of the lower fragments penetrating, and extending about one inch and a half through the skin. There was considerable hemorrhage from both wounds over the site of the compound fracture.

It is contended by appellant that the court should have directed a verdict for defendant. In support of the contention numerous cases are cited announcing rules of law applicable where the carriage is by rail. No universal rule can be deduced applicable to all cases of injuries to passengers on cars propelled on tracks running parallel. It is true that in such cases if a passenger places himself in a position of danger knowing that cars will pass him on parallel tracks and that he may be struck by such passing cars or fixed objects very near to the car in which he is riding, he may not recover for his injuries. But even that rule has its exceptions as in North Chicago St. R. Co. v. Polkey, 106 Ill. App. 98. In that case the Appellate Court found defendant negligent in permitting passengers to ride on the running board of its car through a tunnel built of stone the walls of which were so close to the cars that one riding in that manner was likely to be injured. The Supreme Court reversed the case (203 Ill. 225) and remanded it for error in the instructions. But the gravamen of the action was untouched by the opinion. Other cases, some of which are cited by appellant here, deny liability where the danger was apparent or was not under control of the carrier.

But in this case the passenger was in a vehicle under the sole control of the defendant. It, nor the truck, was not confined in its line of travel to fixed tracks as are railroad cars. Defendant sought and obtained the right from the State to use the common highways of the State for a special purpose — the carriage of passengers. It had several buses in operation. It undertook to carry for hire on the highway those desiring to be carried in that manner. As a common carrier it knew that to protect its passengers it was bound to do all that human care, vigilance and foresight can reasonably do, consistent with the mode of conveyance it employed and the exercise of its business as a common carrier. North Chicago St. R. v. Polkey, 203 Ill. 225 (233) and cases cited. The greater the peril, the more care is imposed on the carrier. The driver may not have known of the position of any passenger but it was his duty to exercise care commensurate with the peril of all under the circumstances. The defendant had no control over the vehicle it was meeting. But as servant of a common carrier the driver in charge of its vehicle could not negligently calculate on his ability to avoid danger to its passengers, nor so calculate or speculate as to the safety of passengers in any respect. Such carriers assume all the responsibility of any other carrier for hire. The evidence established the negligence of defendant and that it was the proximate cause of the injury to plaintiff’s intestate. The court did not err therefore in refusing the peremptory instruction generally.

It is specifically urged that deceased had his arm hanging outside of the car when injured, and that for that reason the verdict cannot be sustained and should have been directed for defendant, and that the motion to direct a verdict having been denied, an instruction covering that supposed condition was improperly refused by the court. The evidence does not show that the arm of deceased was hanging outside of the window at any time before the accident. We find nothing, upon a most careful examination of it, that warrants that conclusion. The sole basis for the contention is the testimony of McG-inness, driver of the truck, and of Hendricks who seems to have been paying particular attention to deceased. Williamson, who was on the truck, testified he did not know where the arm was at the time of the crash. Hendricks testified that deceased was reclining with his arm on the window sill, and it looked like his elbow was on the edge of the sill if not protruding over a couple of inches. He was in that position all the way. His arm was not outside of the window at any .time as he saw. The witness said: “As soon as the crash happened I looked on that side and saw the boy bring his arm in and I saw the bone sticking out of the flesh of his arm.” This is not evidence that the arm was outside the car when struck. The blow was at or near the elbow as shown by the evidence. What he saw immediately after the concussion cannot in the light of all the evidence be reasonably construed as evidence that the arm was outside the car when struck. It seems highly improbable if not impossible that the particular injury inflicted could have occurred if the arm had been hanging outside of the car as contended.

The testimony of the witness McGrinness who was driving the truck is also relied on to prove that the arm was hanging out of the bus at the time of the injury. As abstracted, his testimony as to the situation as he approached and was passing the bus is :

*1 Observed the elbow on the window sill of the bus at the time we passed that elbow. Noticed it just as we passed to see if the fellow passed the truck and he did in front. The fellow sitting with his arm hanging out. I was very close to him and I could see his elbow as we went by.” Interrogatively this evidence is: Q. What did you notice? A. Just as I passed 1 noticed to see if the fellow passed the truck and he did in front. Q. Which fellow passed? A. The fellow sitting with his arm hanging out. I was very close to him and could see his elbow as we went by. At other points of his testimony he speaks of the elbow sticking out. It is not irrelevant to note that this witness speaking of the body of the bus extending over the black line in the road says “it was hanging over the line.” That idiosyncrasy of speech is proper for consideration in determining the meaning of his language. The other witnesses who saw the position of the arm say it was lying on the window sill.

The statements of events by witnesses, like all statements oral or written, to establish a fact must be considered along with all statements relating to the event. It is not enough that, part considered a given fact or theory may be warranted. The story of each must be considered in its entirety. Having considered the evidence of the only witness adduced to prove that the arm of deceased was hanging outside of the car at the time he was struck, that conclusion must be rejected by all reasonable minds when viewed in the light of all the testimony. In this connection, the fact must not be overlooked that while there was blood from the arm on the window sill on which the arm was resting, and on the seat on which he was sitting, no one says, so far as we have been able to discover, that any blood was on the outside of the bus or on the ground at the point where the injury occurred, or on the truck. Blood and pieces of bone from the arm were thrown by the concussion into the bus. The pieces of bone were picked up after the collision. Passengers in the bus had blood spots on their clothing. If the forearm were on the outside when the injury was inflicted these conditions could not have occurred. They could, and from the injury as described, no doubt did, come from the arm lying on the window sill when, by the powerful concussion near the elbow, the upper part of the bones were broken and the force was communicated to the lower portion of the bones. The elbow received the impact communicated to it by the combined momentum of the heavy bus and the still heavier truck with its load of cattle. We may not be able to calculate with mathematical certainty the exact cause of the peculiar injury sustained. But the circumstances fail to afford any basis for a conclusion that it was the result of his arm hanging outside of the conveyance in which he was riding. We think therefore the court did not err in refusing the peremptory instruction to find for the defendant on that ground.

The refused instruction relating to the negligence of deceased in having his arm outside of the window at the time of the injury, the refusal of which is assigned as error, is:

“The Court instructs the jury that although they may believe from the evidence that the deceased while riding as a passenger in defendant’s bus received an injury to Ms arm which resulted in his death, yet, if at the time of said injury deceased by negligence or carelessness. had his arm out of the window of said motor bus, and that such negligence or carelessness contributed directly to the happemng of such injury, the verdict should be for the defendant.”

What we have said with reference to the fact upon which the instruction is based disposes of the alleged error. If there is evidence fairly tending to prove a material fact it is error to refuse an instruction as to the law applicable to it. But the evidence does not show the fact nor, when considered as a whole, does it fairly tend to do so. It was not error therefore to refuse the instruction.

Other errors are assigned and have received the attention they demand. We think no reversible error intervened and the judgment of the circuit court is affirmed.

Affirmed.


text:
    In re Estate of Virgil G. Way, Deceased. Claim of C. N. Clark & Company.
    Gen. No. 8,006.
    1. Estates of decedents — letter of testator to executrix as basis for charging estate with cost of monument. An executrix was not authorized to erect a monument for testator at the expense of his estate'where she acted according to the testator’s desire expressed to her in a letter- but not in his will.
    2. Estates of decedents — power of executrix to bind estate by contract. Executrix cannot bind the estate by contract creating a liability not founded on an obligation of the testator.
    3. Estates of decedents — objection of heirs as bar to allowance of claim for cost of monument not provided for by will. On objection of heirs or legatees a claim for cost of a monument ordered by the executrix but not provided for in the will, could not be' allowed.
    Appeal by objectors from the Circuit Court of Ford county; the Hon. Fbaitk Lindley, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed November 6, 1926.
    Clark & Noel and Little & Finfrock, for appellants.
    Schneider & Schneider, for appellee.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

C. N. Clark & Company filed a claim for $850, in the circuit court of Ford county. It was the amount contracted by the widow and executrix of the estate, with the will annexed of Virgil C. Way, deceased, for a monument for her deceased husband. Two of the heirs and residuary legatees objected to the claim but it was allowed as of the sixth class. From that order an appeal was taken by them to the circuit court. That court having heard much evidence, a jury being waived, entered an order allowing the claim against the estate, and the objectors, George F. Way and Elliott W. Way bring the cause to this court by appeal.

There was no provision in the will directing a monument to be erected. A letter is in the record, written by deceased in 1911 to Mrs. Way who was his second wife. In it he mentions the erection of a monument. But it could impose no legal authority upon her personally, or as administrator with the will annexed to bind the estate for a monument. Furthermore, in his lifetime he erected a family monument on his burial lot. Whether the monument was erected before or after the letter was written we have been unable to ascertain, but deem it immaterial to the disposition of the case.

Appellants requested the court to hold as a proposition of law that the administratrix could not bind the estate for the price of the monument. This request was refused. In this, we think the entire controversy is included, and that the court erred in refusing it. In Morgan v. Morgan, 83 Ill. 196, the court held such a claim against the estate invalid. In that case the administrator and one of the heirs sought to have the amount paid out of the estate. There the widow objected and was sustained. While the question arose upon the allowance of the item in the administrators account, it is not different from this case, because, if proper to be allowed, then he should have credit for it. Yet, in that case, the administrator was as much bound and no more than the administratrix in this case. The court in support of its judgment cites Foley v. Bushway, 71 Ill. 386, where it was held that the widow having contracted for a monument to her deceased husband, to be paid for from the estate, the estate was not liable and the administrator could not be required to pay for it, the liability being on the contracting party personally. In numerous cases cited in the brief of appellants the Supreme Court has held that an executor cannot bind the estate by contract, thus creating a liability not founded upon an obligation of the testator. Bauerle v. Long, 187 Ill. 475; DeProft v. Heydecker, 297 Ill. 541.

So in the case at bar, the claimant, though she may have supposed, or the parties with whom she contracted may have supposed she had power to bind the estate, did not as matter of law possess the power. The claim could not be allowed upon the objection of heirs or legatees. The court erred in allowing the claim and the judgment is reversed and remanded with direction to disallow it.

Reversed and remanded.


author: Mr. Justice Niehaus

text:
    Ella C. Coleman, Complainant, v. John E. Mulcahey et al., Defendants. William R. Bach, Appellee, v. Melvin State Bank and Commercial State Bank of Melvin, Appellants. Lucy Mulcahey et al., Defendants.
    Gen. No. 7,969.
    1. Notice and becobd of title — implied notice of error in description where lands recited to be those occupied by grantors. Constructive notice on the record sufficient to put judgment creditors on inquiry that would show a mortgage covered land later made subject to their judgments, is given by the words: “All being lands now occupied by the mortgagors, and all lands owned by them” in the general description of property in the mortgage though the land was misdescribed in the special description.
    2. Mobtgages — when mortgage assignment sufficient to convey assignor’s interest to assignee. Assignment of mortgage in consideration of $110, and an amount due to assignee for legal services, was for a valuable consideration and was sufficient in law to transfer to the assignee the rights and interests of the assignor in the mortgage.
    3. Mobtgages — assignment as giving assignee benefit of lien priorities held by assignor. Assignment of mortgage for valuable consideration gives to assignee any priorities of lien held by the assignor.
    Appeal by defendants under cross bill from the Circuit Court of Ford county; the Hon. Fbank Lindley, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed November 6, 1926.
    F. M. Thompson, for appellants.
    William A. Bither, for Ella C. Coleman, complainant.
    William R. Bach and Frank Gillespie, for William R. Bach and Lucy Mulcahey, defendants.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, Ella C. Coleman filed a bill in the circuit court of Ford county against John E. Mulcahey, Katharine Mulcahey, Charles E. Coleman, trustee, Lucy Mulcahey, Melvin State Bank, Commercial State Bank of Melvin, William R. Bach, William E. Thompson, to foreclose a trust deed made February 10,1920, by John E. Mulcahey and Katharine Mulcahey, to secure an indebtedness represented by a promissory note for $25,000, and coupon notes for interest. This trust deed covered the S. 1-2 of N. W. 1-4 and the N. 1-2 of the S. W. 1-4 of Sec. 22 in Township 25 N. Range 8 E. of the 3rd p. m. in Ford county. Answers were filed by the defendants in the bill, except John E. Mulcahey and Katharine Mulcahey, and the bill was taken as confessed as to them. The rights of the complainant, Ella C. Coleman, under her trust deed, are not contested, and are not involved in this appeal.

The contest in this case grows out of the allegations of a cross bill which was filed by the appellee, William R. Bach, as assignee of a mortgage made by J ohn E. Mulcahey and Katharine Mulcahey on September 12,1922, to Lucy Mulcahey. The cross bill seeks foreclosure of the mortgage referred to and prays for particular affirmative relief with reference to a portion of the property embraced also in the Coleman trust deed, namely the S. 1-2 of the N. W. 1-4 of Sec. 22. It is alleged in the cross bill that, by mistake of the scrivener of the mortgage, the figures “21” designating the section were written into the mortgage, instead of the figures “22.” It is alleged that the property intended to be conveyed by the mortgage in question, however, is clearly designated by the general description of the premises intended to be mortgaged, following the particular description of the premises. This general description of the property refers to the particular parts of the property described as follows: “All being lands now occupied by the mortgagors, and all lands owned by them.” The right to the affirmative relief prayed for in the cross bill is contested by the appellants, Melvin State Bank and Commercial State Bank of Melvin, who are judgment creditors. The Melvin State Bank obtained a judgment in the circuit court of Ford county on October 31, 1924, subsequent to the recording of the mortgage in question, again Katharine Mulcahey and- John E. Mulcahey for $4,494.22, and on the same day the Commercial State Bank of Melvin obtained a judgment in the circuit court of Ford county against John E. Mulcahey and Katharine Mulcahey for $5,784, and William E. Thompson also obtained a judgment on the same day in the circuit* court of Ford county for $389 again'st John E. Mulcahey. The court below by its decree granted the relief prayed for in the cross bill, and corrected the error in the description of the property mortgaged, and also decreed that the lien of the corrected mortgage was prior to the liens of the" several judgments of appellants. From this decree" an appeal is prosecuted.

It is contended that the error in the description was not an error, which was apparent on the face of the mortgage; that therefore the appellants had no notice that the mortgaged land was in- Section 22 instead of Section 21, nor that Section 22 was the one intended to be conveyed by the mortgage, and that under these circumstances the liens of the judgment creditors became effective at the time of the rendition of the judgment, and were superior to the lien of appellee’s mortgage. We cannot agree with this contention. It appears from the proofs in the record, and is not denied, that the mortgagors owned and occupied the S. 1-2 of the N. W. 1-4 of Section 22, in fact their residence was on this land, not only at the time of the making of the appellee’s mortgage, but they had occupied this land as a homestead for a number of years prior thereto ; and they did not own nor occupy the S. 1-2 of the N. W. 1-4 of Section 21. We are of opinion that, by the clause in the mortgage referred to, that the land mortgaged was land which the mortgagors owned and occupied, there was constructive notice apparent upon the record and legally sufficient to put the appellants upon inquiry concerning the correctness of the description, and which inquiry, if followed, would necessarily have led them to ascertain the mistake that was made. “One having notice of such facts as would put a prudent man on inquiry is chargeable with knowledge of other facts which he might have discovered by diligent inquiry.” Blake v. Blake, 260 Ill. 70; Bent v. Coleman, 89 Ill. 364; Citizens’ Nat. Bank v. Dayton, 116 Ill. 257; Morrison v. Miles, 270 Ill. 41; Southern Illinois Nat. Bank of East St. Louis v. Thaxton, 224 Ill. App. 554. And Thorpe v. Helmer, 275 Ill. 86, is to the same effect. In that case the court clearly pointed out: “When a description in a conveyance in a chain of title is erroneous and the error is apparent on the face of the instrument and of such a character as would lead a purchaser of ordinary prudence to make inquiry as to the land intended to be described, and inquiry would have led him to knowledge of the true condition of the title, he will be held, to such knowledge.”

Appellants also contend that because their judgments had been entered over four months before the assignment of appellee’s mortgage, their equities are superior; and a question is also raised about the sufficiency of the consideration for the assignment, which was a payment of $110 by the assignee to a mortgagee holding a prior lien, and an amount due the appellee for legal services rendered to the assignor. In reference to the latter contentions, it is evident that the consideration referred to was valuable and was sufficient in law to' transfer to the assignee the rights and interests of the assignor in the mortgage, and that whatever lien and priorities the assignor had under the mortgage passed by the assignment. 27 Cyc. 1300. Thorpe v. Helmer, supra.

For the reasons stated, the decree is affirmed.

Affirmed.