text:
    Joseph Kempinski and Katherina Kempinski, Appellees, v. Tuthill Building Material Company, Appellant.
    Gen. No. 33,405.

      Opinion filed January 2, 1930.
    Albert G. Miller, for appellant.
    Leesman, Roemer & Schnell, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiffs, husband and wife, in the month of May, 1923, purchased, as joint tenants, a piece of real estate in the City of Chicago, .known, by street description, as 2114 West Sixty-third Street. It was improved with a two and one-half story brick building, which the plaintiffs and their family, occupied as a residence from the time they purchased the property until the time of the trial.

The building was about 25 years old and was located near the rear of the lot. Immediately back of it was a garage which abutted upon the alley. The house and lot faced south on Sixty-third Street. Directly across the street from plaintiffs’ property were flat buildings and west of the flat buildings were small stores and cottages. For a distance of about 150 feet directly east of plaintiffs’ property was unimproved land. Directly west was a vacant lot, then a store building, then an unpaved street, and, about 50 feet, west of the street, were the elevated tracks of the Pennsylvania Railroad Company. The elevation or embankment was occupied by a dozen or more tracks. There were two street-car tracks on Sixty-third Street. North of Sixty-third Street the railroad company had its switch and distributing yards, spreading out-to the east and the west.

Back of the alley, in the rear of plaintiff’s premises, and at a distance of about 60 feet, were sheds owned and occupied by the railroad company. In the same vicinity was a tile yard with some of the tile piled to the level of the second-story window of the building used by the owners of the tile. The railroad company distributed its cars by means of a “hump” on its tracks, located about 50 feet south of Sixty-third Street. The process employed was to back a train' up to the “hump,’ ’ when the cars to be distributed were released and, passing north over the “hump,” crossed the elevation over Sixty-third Street and moved, by their own momenta, to the various tracks.

In the fall of the year 1923 the defendant acquired the five lots just east of the plaintiffs’ premises. In the year 1924 it erected upon these lots a plant for the manufacture of bricklayer’s mortar. The building was about 140 feet long and 40 feet wide. It had a door and windows facing on Sixty-third Street. There were no windows on the west side. On the alley was a door and an entrance for bringing in lime with trucks. On the west side of the roof, near the middle of the building, was an opening through which sand was emptied into bins or hoppers located inside the building. Situated west of the building, and parallel with it, was a switch track upon which were operated cars to bring in the sand. West of the switch track was another track, on cement piers, upon which was operated a gasoline shovel and derrick. This track crossed the alley and went north, on an elevation, until it reached the top of the embankment of the Pennsylvania Railroad about 300 feet from the factory. In the operation of the plant, cars of sand were brought in by means of a switch engine and placed opposite the opening in the roof of the factory. By means of the derrick and shovel the sand was then elevated to the top of the building and dropped into the hoppers. Sand not thus disposed of was piled upon the defendant’s property.

The defendant constructed a brick wall along the west side of its property, extending from the sidewalk on Sixty-third Street north to the front of plaintiffs’ building. It was originally about eight feet high, but is now about five feet in height. Apparently, the top of the wall was broken off because of the pressure of the sand piled against it. From the front of the plaintiffs’ building, and north to the alley, the defendant constructed a retaining wall made of railroad ties laid against upright iron beams stuck into the ground.

On July 18, 1927, the plaintiffs instituted an action of trespass on the case against the defendant, in the superior court of Cook county. They filed a declaration consisting of six counts. In each count it was alleged that the plaintiffs were the owners of the property located at 2114 West Sixty-third Street,, giving the legal description, that the building was occupied by them as a residence, and that, about the building*, they maintained a garden and lawn. In each of the counts, except the sixth, the defendant was charged with maintaining* a nuisance, and each concluded with the charge that the nuisance, complained of, resulted in great annoyance and discomfort to the plaintiffs, the members of their family and their guests and that by reason of such nuisance “the premises, land, garden, lawn, home and residence of the plaintiffs were rendered incommodious, unhealthful and unfit for occupation and enjoyment for the purpose of a residence and a home, and were otherwise greatly and permanently injured. ’ ’ At the instance of the plaintiffs, each of the five counts was amended by striking out the concluding* words, “and were otherwise greatly and permanently injured. ’ The sixth count sounded in trespass for damages caused by the falling of the wall, constructed by the defendant, upon the plaintiffs’ property and garden.

The first count charged the defendant with maintaining a nuisance in the following respects:

1. The defendant’s factory was equipped with seven electric motors and a derrick and power shovel, operated by a gasoline engine, and the latter made much noise. The motors were operated day and night, at variable speeds and produced different intensities of sound and vibration.

2. The derrick and shovel were operated from early morning until late in the afternoon, and produced great and disturbing noises, vibrations and jars.

3. The defendant deposited, upon its property, large amounts of loose sand in piles many feet high, and that it permitted the sand to blow over, fall upon, and permeate the plaintiffs’ premises, including the building.

4. The piles of sand crowded against the plaintiffs ’ building, breaking the walls and windows.

5. Fumes and odors, as of burning lime, and black smoke or vapor escaped from the defendant’s factory and passed over and upon the property of the plaintiffs’ and into their residence and rooms.

The remaining counts averred, singly, the grievances complained of in the first count. To each count the defendant pleaded the general issue. A jury trial was had, resulting in a verdict in favor of the plaintiffs. Their damages were assessed at the sum of $1,750. Motions for a new trial and in arrest of judgment were overruled. Judgment was entered upon the verdict and the defendant appealed.

Marie Peters testified that she was a married daughter of the plaintiffs; that she had lived with them ever since they purchased the premises in question; that when they first took possession there was on the premises a garden, flowers and berry trees; that the mortar mixing machine makes an intermittent grinding noise; that when the cars loaded with sand are drawn in by the switch engine the whole building of plaintiffs shakes; that the operation of the derrick and shovel, which begins at 6:30 o’clock in the morning awakens the children and causes them to come downstairs screaming; that lime smoke keeps coming in from the lime “something terrible, about twice a day in the morning — mostly in the afternoon”; that defendant’s factory has two chimneys which, when mortar is being mixed, emit “terrible black smoke,” and the smoke comes into the plaintiffs’ building; that when they retire at night the operation of the machinery shakes the beds-; that in the daytime they cannot put things on the dresser because of the shaking caused by the operation of the derrick; that the shaking and jarring-cracked the building in a couple of places in the bedrooms and dining room; that the cars of loaded sand, coming in, shook and cracked the building; that in the wintertime the “machinery is frozen” and when it starts running- “it gives a couple of shots before it goes, and then wakes up the children and everybody” ; that the defendant “started making a fire underneath these sand cars with gasoline, the flame of gasoline all night long, and this smoke comes right into the building”; that the defendant in breaking up the sand “throws the shovel right down heavy and it gives such a loud noise, and a shake and you can hear everything”; that there is insufficient space in which to turn the derrick, “the shovel covers over on our property about a foot and our children pass by and get their hair full of sand,” and -the shovel “hit our building four times,” and that the knocking* and running of the machinery is causing the front porch to break away ■ from the building*.

In describing the effects of the sand, the witness testified that it came into the building “terribly through the least little crack”; that because of the sand they had to clean the windows every day; that when the children get up in the morning “they are simply terrible with sand”; that it “just keeps coming-in through the windows and the pressure of the sand also broke windows on that side, and the big pile of sand comes right in”; that the sand was too heavy so it pushed' the iron beams against the building and cracked it in a few places and that “sand is always making the walls damp and the wall is bulging up about a quarter of an inch off the foundation.”

The witness further testified that before the preparation of a meal, it becomes necessary to remove the sand from the dishes with a towel; that the sand fills up the gutters “terribly” and that cleaning them twice a year is insufficient to keep them clean; that sand gets into the ice-box and the food, and that it gets on the floors so that in walking over them the varnish was scraped off.

She further testified that “I saw the wall come down and it came right in our yard and broke our cherry tree and all the shrubbery we had around the walk and flowers on it”; that after the wall came down “there was so much bricks that it blocked our whole hall”; that “when there is a wind from the east we cannot walk in that way because the sand is hitting us so there is a regular sand storm, when there is a big wind from the east,, we cannot walk through because the wall is now broke down and we cannot walk”; that “we get our eyes full of sand and hair and everything”; that “the children cannot play in the front of the yard at all and that is the only yard they have ’ ’; that the sand blowing has affected the flowers, they won’t grow because there is too much sand,” and that, “the yard is filled with sand just like snow.”

The testimony of this witness was corroborated, in substance, by the testimony of her sister and that of the plaintiffs.

The only material testimony of the witnesses for the defendant, referred to in the brief of counsel for defendant, is to the effect that coal was used in the factory only in the wintertime, for the purpose of heating the plant by means of a low pressure boiler, the firing being done about three times a day; that cold water was used in making the mortar and that although some vapor came from the slacking of the lime, it was moist, had no odor, and soon dissipated in the air; that no dry dust ■came from the lime or the slacking of it; that no vibration was produced by the operation of the machinery in the plant and that the noise from the motors could be heard in the building but sounded like the running of an automobile.

The court, at the instance of the plaintiffs, gave five instructions to the jury. Inasmuch as counsel for the defendant contends that the giving of each instruction constituted reversible error, we set them out in full as follows:

“The Court instructs the jury as a matter of law that noise of snch character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities in the enjoyment of his home, is nuisance, even though it is caused by conducting a trade or business in a city, if, indeed, you believe from all the evidence in this case that such were the facts here.

‘ ‘ The Court instructs the jury as a matter of law that if you believe from all the evidence that the defendant maintained a sand pile adjoining the home, of the plaintiffs, and that sand from such sand pile, sifted into the home of the plaintiffs and onto the plaintiffs’ property there so as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities in the enjoyment of his home, then you are instructed that the maintenance of such sand pile is a nuisance, and the plaintiffs are entitled to recover.

“The Court instructs you as a matter of law that if you find from all the evidence that the acts of the defendant complained of herein by the plaintiffs constituted a nuisance, then you are instructed that in such cases the law does not give entire damages as for a permanent injury to the real estate but allows such damages as for the continuation of the nuisance as accrue up to the date of the bringing of the suit, if indeed you find that there were any such damages from the evidence in this case.

“The Court instructs the jury as a matter of law that if a business as conducted is offensive to such a degree as materially to interfere with the ordinary physical comfort of a neighbor in the enjoyment of his neighboring property, measured not by the standard of persons of delicate sensibilities and fastidious habits but by the habits and feelings of ordinary persons, then such a business is a nuisance notwithstanding the business is a necessary one; and if you find from all of the evidence that the business being conducted by the defendant in this case as it was conducted by it at the times complained of by the plaintiffs herein, was offensive to that degree, if at all, then you are justified in finding that it was a nuisance and in assessing plaintiffs’ damages herein.

“The Court instructs the jury as a matter of law that if from the evidence in this case and under the instructions of the Court, you find for the plaintiffs, then you may assess the plaintiffs’ damages herein. In assessing the plaintiffs ’ damages, you may take into consideration the character of plaintiffs’ dwelling house, and every other fact appearing in evidence, if any, tending to show the plaintiffs have been deprived of the comfortable use and enjoyment of their home, up to the time of filing suit here on July 16, 1927.”

Particular objection is made to the first instruction on the ground that it directed the jury to consider noise as an element of damages. It is contended that husband and wife cannot maintain a joint action for damages on account of annoyance or personal discomfort caused by noise. In support of this contention the case of Lindblom v. Purity Ice & Refrigerating Co., 217 Ill. App. 306, is cited and quoted from. The pertinent portion of the opinion is as follows:

“All of the evidence introduced by appellees to sustain the first and second counts of the declaration was evidence tending to show that by reason of the noises emanating from the ice plant, appellees and their family suffered from loss of sleep which made them nervous and ill in health; that Olaf Lindblom used cotton in his ears to prevent the hearing of the noise in an endeavor to sleep, but was compelled to discontinue it on the advice of a physician, because it was affecting his hearing, and evidence tending to show personal annoyance and personal discomfort caused by the noises. This is a joint action brought by Lindblom and his wife and none of this evidence shows or tends to show a joint cause of action. The fact that the grievance of husband and wife are similar does not justify joining them in one action.

“ ‘When the interests are several, there could as a rule be no joinder, even when the rights of all the plaintiffs have been violated by one and the same wrongful act on the part of the defendant, or had arisen ex contractu out of one and the same transaction with defendant.’ 30 Cyc. 106; Tenant v. Pfister, 51 Cal. 511; American Plate Glass Co. v. Nicoson, 34 Ind. App. 643, 73 N. E. 625; Brunner v. Bay City, 46 Mich. 236, 9 N. W. 263; Girard v. Lehigh Stone Co., 280 Ill. 485.”

The cases cited in the opinion in support of that portion of it, above quoted, have been fully analyzed by counsel for the plaintiffs and, although seeming to support the principle announced, do not directly apply to the case of a nuisance. Apparently, the court proceeded upon the theory that the evidence as to noise was introduced for the purpose of showing personal injury and annoyance to the plaintiffs. The reference to the testimony that the husband used cotton in his ears to prevent his hearing the noise so that he might sleep, and that he was advised by his physician to discontinue the practice because it was affecting his hearing, is strongly indicative that the court had in mind personal injuries and discomforts rather than an interference with the plaintiffs’ use and enjoyment of their property.

In the case of Gempp v. Bassham, 60 Ill. App. 84, it was held that, in an action for damages sustained because of a nuisance, it was proper to admit evidence of noises and stenches and other facts to aid the jury in determining whether and to what extent the plaintiff and his family had been deprived “of the wholesome and comfortable use of his home.” The court further held that it was error to refuse admission of evidence as to the deleterious effect of the nuisance upon the health of the plaintiff’s wife. In so ruling, the court said:

“Under the influence of the same erroneous view of the rule as to the measure of damages and the manner of proof thereof, the court refused to permit the appellant to prove that effluvia from the stables deleteriously affected the health of his wife.

“Proof should have been admitted of any fact which would aid the jury in determining whether and to what extent the plaintiff and his family had been deprived of the wholesome and comfortable use of his home by the stenches, noises, etc., from the stable.

“The effect of such stenches or noises upon any person who might be in plaintiff’s house, whether a member of his family or a mere caller, would tend to enlighten the jury upon the question whether his dwelling was rendered physically uncomfortable as a home and was therefore competent to be proven. Ellis v. Council Bluff R. R., 22 Mo. 131; Loughbram v. Des Moines, 72 Iowa 382; Pierce v. Wagner, 29 Minn. 355.

“It is true the declaration did not aver that odors, etc., from the stable caused illness of plaintiff’s wife.

“Such an averment would no doubt have been necessary had plaintiff sought to recover special damages because of the illness of his wife, as for instance, moneys expended for- medicines, medical treatment, etc., but was not necessary in order to admit proof that his home was rendered physically uncomfortable and unwholesome by the nuisance created by the appellee.”

To the same effect are f Chicago, M. & St. P. Ry. Co. v. Darke, 148 Ill. 226; Munie v. Millner, 245 Ill. App. 257; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317.

Even if there was a misjoinder of parties* plaintiff, the defendant cannot now complain, because it filed the general issue and went to trial without raising the point. Helmuth v. Bell, 150 Ill. 263. In that case a widow and her infant children joined in a statutory proceeding against a saloon keeper, to recover damages for loss of support due to the death of the husband and father from intoxication. The Supreme Court expressed a doubt as to whether a joint action would lie, but finally said:

“But if it were otherwise, appellants are in no con- . dition to raise the question now. Each of the parties plaintiff had a right of action against the defendants, of the same nature, growing out of the same wrong, and even though the statute does not authorize a joint suit, the defendants having elected to plead to the action so brought, and suffered a verdict and judgment to go against them, have waived the error.”

Counsel for the defendant also complains of plaintiffs’ instructions 3, 4 and 5 for the reason that they, in substance, direct the jury to consider noise, smoke and vapor as elements of damage. What we have said with reference to instruction number 1 disposes of this contention.

It is further contended that the giving of plaintiffs ’ instruction number 2 constituted reversible error because it singled out and directed the attention of the jury to the pile of sand located upon the premises of the defendant. This contention is untenable for the obvious reason that the evidence disclosed the existence of only one pile of sand, and that was situated upon the defendant’s property.

It is also urged that plaintiffs ’ instruction numbered 3 is erroneous for the reason that it directed the jury that it was proper to assess permanent damages, if they found in favor of the plaintiffs. As we construe the instruction, the jury were told, in unequivocal language, that they had no right to assess “entire damages as for a permanent injury to the real estate ’ ’ of the plaintiffs.

We have considered the other objections to the instructions and find that they are not well founded in point of law.

There was some testimony received showing that, when the defendant first began the operation of its factory, the children in the plaintiffs ’ family came down the stairs in the morning crying. This testimony was not prejudicial to the defendant. If the witnesses for the plaintiffs told the truth, it was but natural that the children should cry. Certainly their expression of fear or emotion could not be considered to be of a self-serving nature.

Two of the witnesses for the plaintiffs cried while giving their testimony from the witness stand. Counsel for the defendant made a motion to withdraw a juror. A hearing was had in chambers upon the motion and the trial judge denied it. It was for the trial judge to determine whether the witnesses were giving vent to their natural feelings or whether they were attempting to influence the jury.

Finally, it is said that the damages assessed are excessive. True, the plaintiffs paid only $5,000 for their property, and it was not an ideal residence district. But it was their place of abode, which they selected before the defendant located its factory next door. Perhaps the plaintiffs could not afford a home in the choicest residential section of Chicago. They endured the inconveniences and discomforts occasioned by the operation of the defendant’s factory from 1923 until 1927, when they brought their suit. We are not prepared to say that the damages assessed by the jury were excessive.

For the foregoing reasons the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Wilson, P. J., and Holdom, J., concur.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    Lillian Caplow, Appellee, v. Sam Caplow, Appellant.
    Gen. No. 33,461.
    Opinion filed January 2, 1930.
    Frankel & Bloom, for appellant.
    Frank P. McGinn, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

On August 18, 1928, the complainant filed her bill for divorce in the superior court of Cook county, charging the defendant with cruelty. The defendant answered, denying the allegations of the bill.

On December 12,1928, the cause was set for trial for January 18,1929, upon motion of the complainant. On December 18, 1928, the cause was reset for trial for December 21,1928, upon motion of the complainant.

On December 20, 1928, a petition for a change of venue, based upon the prejudice of the trial judge and in the usual form, was presented by the defendant and denied. On December 21, 1928, the cause came on for trial. The motion for a change of venue was renewed and denied. The defendant then before the taking of any evidence, made an oral motion for a jury trial, which was likewise denied.

The court then proceeded to hear evidence and, at the conclusion of the hearing, granted the complainant a decree of divorce. We have examined the evidence and think it sufficient to support the decree and that the only questions for our consideration are whether the court erred in denying the petition for a change of venue and the motion for a jury trial.

The petition for a change of venue was made upon the eve of trial. Whether the petition came too late or whether reasonable notice of the presentment of the petition wad given, were questions calling for the exercise of discretion on the part of the trial court. Hutson v. Wood, 263 Ill. 376.

The right to a trial by jury in a divorce case is statutory. The statute, Cahill’s St. ch. 40, 8, provides that, “When the defendant appears and denies the charges in the complainant’s bill for a divorce, either party shall have the right to have the cause tried by a jury.” _ ' .

_ The motion need not be in writing and is not too late if made when the cause is called for trial. Van Vlissingen v. Van Vlissingen, 173 Ill. App. 124.

The motion of the defendant for a jury trial should have been granted.

The judgment of the superior court of Cook county is accordingly reversed and the cause is remanded.

Judgment reversed and cause remanded.

Wilson, P. J., and Holdom, J., concur.


text:
    Jacob L. Cohn, Defendant in Error, v. Morris F. Kraus, Plaintiff in Error.
    Gen. No. 33,529.
    Opinion filed January 2, 1930.
    W. F. McLaughlin, for plaintiff in error.
    Joseph J. Karlin, for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.

On September 17, 1928, the plaintiff recovered a judgment by confession in the municipal court of Chicago against the defendant for the sum of $3,700, being the amount alleged to be due upon a promissory note. Attached to the statement of claim and cognovit was a copy of the note. From the copy it appeared that the original note was in the principal sum of $2,500, dated September 3, 1921, made payable to the Lake State Bank, and signed by Morris F. Kraus as maker. It contained a provision, in the usual form, for confession of judgment, and an indorsement on the bank, whereby the plaintiff guaranteed payment of the note at maturity.

The defendant made a motion to vacate the judgment and in support of the motion filed an affidavit. The motion was denied, and the sole question presented, by this writ of error, is whether the trial court committed reversible error in so doing.

The affidavit, filed in support of the motion to vacate, sets out in substance that the note was not paid at maturity; that E. Ridgeway, the holder of the note, brought suit upon it, in the municipal court of Chicago, against the plaintiff and the defendant; that, after successive affidavits of merits were stricken from the files, a judgment was entered, on January 9, 1923, against Jacob L. Cohn, defendant in that cause and plaintiff here, for the sum of $2,559 and that, after issuance of execution and demand made by the bailiff of the municipal court, Cohn paid the judgment and caused it to be satisfied, as evidenced by a satisfaction piece filed in the office of the clerk of the court, on January 29,1923. It is further stated in the affidavit as legal conclusions, that in the suit instituted by Ridgeway it was adjudicated that he was the legal owner and holder of the original note, and that the note became merged in the judgment against Cohn.

Other grounds for setting aside the judgment are stated in the affidavit but we deem the issue for our consideration to be limited by the statement in the brief of counsel for the plaintiff in error that, “The entire question in this case is as to whether Cohn, who was served in the preceding action on the note, having paid the judgment, and then having permitted the judgment to be satisfied, may come in at a later .date by claiming to be the owner of the note, and confess judgment on the same against the maker, who was also a party in the preceding suit, though not served with summons.” All of the points stated in his brief as grounds for the reversal of the judgment of the trial court are in support of this one contention.

It is conceded that- the defendant, Morris F. Kraus, was not served with process and did not enter his appearance in the suit instituted by Ridgeway against him and the plaintiff, Cohn, wherein judgment was taken against Cohn.

The affidavit of the defendant admits his execution of the note and the transfer of it to Ridgeway for value and before maturity. It is not denied that the defendant failed to pay the note at maturity or at any other time and no question is raised as to the good faith of the plaintiff in defending the suit instituted by Ridgeway. It is not denied that the plaintiff is out of pocket for the exact amount paid to satisfy the judgment in that case.

The bill of exceptions recites that the trial court, upon the hearing of the motion to vacate the judgment, examined the pleadings and orders in the Ridgeway suit. The statement of claim described the note, alleged that the defendant Kraus was the maker and that its payment at maturity was guaranteed by Cohn. The judgment against the latter is not set out. The satisfaction piece is in the usual form and does not state the substance or nature of the judgment against Cohn, the guarantor.

The record indicating nothing to the contrary, we assume that Ridgeway proceeded to enforce his legal right against Cohn upon the latter’s independent undertaking as guarantor. As against Cohn he had no right to take judgment upon the note. That being so, there was nothing to prevent Cohn from acquiring ownership of the note and enforcing its collection against Kraus, the maker.

A similar situation arose in the case of Pierce v. Jacobs, 157 Ill. App. 441. There the note was presented as a claim against the estate of the deceased guarantor and was paid. It was held that the executors of the guarantor’s estate had the right to take up the note and recover it against its makers. The court said:

“1. When this case was first before us in 132 Ill. App, 547, we held that Pierce’s executors, having taken up the note, had a right to erase the indorsement and maintain an action upon it against these appellants, and cited authorities therefor, including Campbell v. Humphries, 2 Scam. 478, where it was held that ‘if the payee or any assignor has been under the necessity of taking up the note his right of action revives.’ In 15 Am. & Eng. Encyc. of Law, 1st Ed. 342, the same rule is thus stated: ‘While a judgment recovered upon a promissory note, or bill of exchange is a merger of the cause of action as between the parties to the suit, the note or bill is not so merged as to prevent the indorsers from paying the judgment, receiving the note and maintaining an action on it against the maker. ’ In 1 Freeman on Judgments, 4th Ed., sections 227 and 227a, the same doctrine is stated, and it is shown that in such a case the note is not merged in the judgment against an indorser, but the judgment and its payment have no other effect as to the maker than does payment by the indorser without the judgment, and the indorser upon taking up the note may maintain an action thereon. In ’this case the liability of Pierce to the bank was not upon the note itself, but upon his contract of indorsement and guaranty written upon the back of the note. While the claim filed and introduced in evidence appears to have the original note attached thereto, there is proof it was the copy that was filed and not the original, and that when the executors paid the claim they obtained the note at the bank. But whether the note itself was filed in the probate court or not, we are of opinion that its allowance and payment had no other effect as between the makers and the payee and his estate than would the payment of the note by the executors have without its allowance. So far as the- makers are concerned, the simple fact is that the executors of the payee paid the indorsee the amount of the note and took it up and then had a right of action against the makers.”

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Wilson, P. J., and Holdom, J., concur.


text:
    Benedict K. Goodman, Appellee, v. Theodore Heinen et al., Defendants. Appeal of Edward J. Lusk and Edward M. Bertha, Appellants.
    Gen. No. 34,024.

      Opinion filed January 2, 1930.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellants; Ben Bothbaum, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee; M. Paul Noyes, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver, pendente lite, in a foreclosure proceeding pending in the circuit court of Cook county. The bill of complaint was not verified, except that it was accompanied by an affidavit in which it was stated, upon information and belief, that the owner of the equity of redemption, Theodore Heinen, was a resident of the City of Los Angeles, in the State of California. The receiver was appointed pursuant to the prayer of a petition sworn to by the complainant.

,It was alleged in the petition that the complainant was the owner and holder of notes aggregating the principal sum of $86,000, secured by a second trust deed upon the premises being foreclosed; that there had been a default as to the payment of the principal and interest due on the notes; that there was a first, trust deed upon the property, securing an indebtedness of $125,000, which was due and no part of which had been paid; that the rents derived from the property exceeded, in the aggregate, the sum of $2800 per month and that the trust deed securing the notes, held by the complainant, pledged the rents, issues and profits, arising from the property, as additional security, and also provided that, upon the filing of a bill to foreclose, the court was authorizéd to appoint a receiver, without notice.

Theodore Heinen, owner of the equity of redemption, was not served with notice of the application for the appointment of a receiver. The excuse given for not serving him with notice is that he was a nonresident. Notice of the application was served upon Edward J. Lusk and Edward M. Bertha, the parties who were granted and perfected this appeal. The petition made no mention of the interests of Lusk and Bertha, but the bill of complaint alleged that Bertha was the legal holder and owner of a note in the principal sum of $6,500, secured by a third trust deed upon the premises. In addition to this, counsel for the complainant state in their brief that Bertha was the owner of such a note and that Lusk was the trustee under the third trust deed given to secure the note.

The order appointing the receiver was in the usual form, except that it excused the complainant from giving bond in words as follows:

“It is further ordered, upon good cause shown, that no bond be required of the complainant in connection with the appointment of said receiver.”

The order further provided that, with the consent of the receiver, he was to serve without compensation until the foreclosure sale was had, and that, following the sale, he was to receive two per cent of «the gross income collected by him.

The petition for the appointment of the receiver contained no allegations and the order of appointment contained no findings that the premises constituted scant security for the notes held by the' complainant, that waste was being committed, or that the maker of the notes was insolvent.

The statute of this State, Cahill’s St. ch. 22, ft 55, relating to the appointment of receivers provides:

“That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damages including reasonable attorneys ’ fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond. ”

There was neither proof nor findings which justified the waiver of a complainant’s bond. The appointment of a receiver is a drastic remedy and should not be made without requiring the statutory bond, regardless of any contract between the owner and the holder of the mortgage, under foreclosure, that complainant’s bond be waived, unless it is made to appear to the trial court that it is equitable so to do. Bagley v. Illinois Trust & Sav. Bank, 199 Ill. 76.; Bothman v. Lindstrom, 221 Ill. App. 262; Chicago Title & Trust Co. v. Bickley, 255 Ill. App. 45, and cases cited.

The right of the holder of a third mortgage to obviate the jeopardizing of his security by the expense of a receivership, is so obvious that it is idle talk to say that he has no appealable interest. Neither is it an answer to say that he is not harmed because the receiver was to serve without compensation jbefoye the foreclosure sale. The order of appointment provided compensation for him on a commission basis, after sale, whether there was a deficiency or not. This affords an additional reason for holding the order to be erroneous.

Aside from the provisions of the statute, the appointment of a receiver is a judicial act and calls for the exercise of a sound discretion on the part of the chancellor. If a receiver is appointed, the complainant should be required to give bond unless equitable grounds appear which warrant the waiver of the bond. Whether the bond is to be required or not, likewise, rests in the discretion of the trial court. The excusing of a complainant’s bond where, as in the instant case, the order of appointment shows no reason for so doing, constitutes reversible error.

The error is conceded by counsel for the complainant in the suggestion made in their brief that: “every interest of justice and equity will be satisfied on the present appeal and all rights protected if the court will follow the practice adopted by it in the case of Walenti v. Krolik, 234 Ill. App. 407, and reverse the order here appealed from, with directions to the Circuit Court, either to require the complainant to give a bond with such penalty and security and with such conditions as are mentioned in the statute, or, upon a notice and full hearing, to state that such bond is not required and enter an order accordingly.”

We agree that the order of the circuit court should be reversed,- but we find no occasion for directing that court how to proceed in the future, as was done in the case of Walenti v. Krolik, supra. The provisions of the statute are plain and unambiguous. The duty rests upon the complainant to proceed in conformity with ■the law. If he does so, nothing in this opinion or the order to be entered by this court will deprive him of obtaining any relief to which he shows himself to be entitled.

The order of the circuit court of Cook county, appealed from, is reversed.

Order reversed.

Wilson, P. J., and Holdom, J., concur.


author: Mr. Presiding Justice McSurely

text:
    Seward Peterson and David H. Sadin, Appellees, v. William A. O’Neill, Appellant.
    Gen. No. 33,619.
    Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.
    Ernest A. Eklund and Frederick J. Bertram, for appellant.
    Kenneth F. Simpson, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiffs, bringing suit to recover money claimed to have been paid to defendant under duress, upon hearing by the court had judgment for $200, from which defendant appeals.

Defendant moved to strike plaintiffs’ second amended statement of claim, which motion was denied, and defendant electing to stand upon his motion, judgment was entered accordingly.

The statement alleged, in substance, that on or about February 15, 1927, plaintiff Peterson entered into a written contract for exchange of real estate with the defendant, the defendant agreeing to convey the property known as number 5842 North Maple-wood avenue, Chicago, size of lot 30 feet by 125 feet; that thereafter in March, 1927, defendant executed his warranty deed purporting to convey said property to plaintiff, but by inadvertence or mistake failed to include therein a sufficient legal description to convey all of the property which he had contracted to convey to plaintiff, as a result of which plaintiffs’ title to a strip of ground 9 feet wide across the rear of the lot was clouded, and title to the same appeared to remain in defendant, so that plaintiff had title to only 30 by 114 feet, instead of 30 by 125 feet. Plaintiff alleges he first discovered this on August 25, 1928, when an objection was raised by George H. Brocker, to whom plaintiff had contracted to sell the property; that plaintiff at once requested defendant to execute and deliver to him a quitclaim deed conveying said 9-foot strip in accordance with the terms of the contract, but that defendant, well knowing that plaintiff had contracted for the resale of the property and that the sale to Brocker was worth far more to the plaintiff than $200, wrongfully demanded and required the plaintiff to pay him $200 for the quitclaim deed; that plaintiff repeatedly protested and pointed out to defendant that he was already legally obligated to furnish said quitclaim deed and had received the consideration therefor, and that his demand for $200 was duress of property, yet the defendant insisted upon payment. Plaintiff further alleges that defendant well knew that a forfeiture of plaintiff’s resale contract would involve a loss' of profits to him of $1,000 and broker’s commissions and other expenses of $650, so that plaintiff was obliged to and did on September 25, 1928, in order to avoid a forfeiture of Ms resale contract with Brocker, pay defendant $200 and then and there received from defendant a quitclaim dee,d conveying said 9-foot strip. The contract referred to is attached to and made a part of the statement of claim.

Counsel for the defendant in Ms brief presents a number of points, supported by authorities, which are not applicable. His brief is based upon the erroneous assumption that this action is brought upon the real estate contract. This action is for money had and received under duress of property and the contract is material only by way of inducement or as evidence. It was not necessary to attach either the contract or the warranty deed referred to in the statement of claim, for the allegations alone sufficiently present a claim for money had and received and paid under duress to defendant.

Pemberton v. Williams, 87 Ill. 15, is in point. There the purchaser had paid nearly all of the contract price and had contracted to resell, when the original seller demanded as a condition of the delivery of his deed a larger sum than that named in the contract. ' For fear of losing his resale the original purchaser paid the sum demanded by the original seller under protest and the deed was delivered. It was held that an action for money had and received would lie.

“It is a well-settled rule of law in this State that where one is compelled to pay money to another, who has no legal right to demand it, in order to prevent injury to his person, business or property, such payment is, in law, made under duress, and may be recovered back from the party receiving it, and it makes no difference that the payment was made with full knowledge. City of Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40; Rees v. Schmits, 164 Ill. App. 250; Pemberton v. Williams, 87 Ill. 15; Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535; County of LaSalle v. Simmons, 10 Ill. (5 Grilm.) 513.” Pittsburgh Steel Co. v. Hollingshead & Blei, 202 Ill. App. 177.

This rule was restated in the recent case of Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284.

It is suggested that there is a variance between the pleadings and the judgment, in that in the amended statement of claim the plaintiff is in the singular rather than the plural, yet the judgment is rendered in favor of “plaintiffs.” We do not see that this irregularity could result in any harm to the defendant, for the judgment, if satisfied, would bar any further action by either plaintiff Peterson or Sadin. Harmless error does not necessarily result in a reversal. Florin v. Rayman, 176 Ill. App. 106; Stookey v. Carter, 92 Ill. 129.

The judgment is affirmed.

Affirm,ed.

Matchett and O’Connor, JJ., concur.


text:
    Ernest J. Batten, Plaintiff in Error, v. C. F. Hurburgh, Defendant in Error.
    Gen. No. 33,696.

      Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.
    ■ Ernest J. Batten, Pro Se; Harold O. Mules, of counsel.
    Altheimer & Mayer, for defendant in error; Leo L. Weil and Sylvan S. Rosenbaum, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In an action of replevin tried by the court, plaintiff was defeated and asks that the judgment be reversed.

May 4, 1929, plaintiff filed his affidavit for replevin alleging ownership and that he was entitled to the possession of certain goods and chattels consisting of notes, trust deeds, leases, etc., of the value of $13,000. The writ was duly executed and served by seizing the property in question. Plaintiff’s declaration was filed May 20 and the appearance of the defendant was filed the same day. June 17, defendant filed his plea setting forth certain facts and claiming that the service of the writ of replevin was procured by a fraudulent trick and abuse of process, wherefore defendant prayed judgment if the court will take cognizance of the action. (We disregard the obvious typographical errors.) To this plea plaintiff filed a general and special demurrer, which was overruled. In consideration of the plea of defendant, it was ordered that the replevin suit be dismissed at plaintiff’s cost and the writ of retorno habendo issue for the property taken under the writ.

Defendant’s plea alleged that on April 17, 1929, the plaintiff, Ernest J. Batten, an attorney at law and member of the Chicago Bar, filed in the superior court of Cook county his bill of complaint against this defendant and the Chicago Title and Trust Company, as trustee, said cause being duly entitled in the names of the parties and given the general number 496376; that summons was duly issued by the clerk of the superior court on the filing of the bill and delivered to the sheriff of Cook county by the plaintiff with instructions to the sheriff not to serve the defendants therein named; that during the pendency of said bill in the superior court and on May 3, 1929, plaintiff personally served defendant with a subpoena duces tecum issued by a notary public in and for Cook county, notifying* and commanding this defendant to appear before said notary public at her office, 1410 Ashland block, Chicago, on Friday, May 3, 1929, and to bring with him certain collateral securities enumerated and set forth in said subpoena duces tecum, said subpoena reciting* that said deposition was to be taken concerning the suit then pending* and undetermined in the superior court, where Batten was complainant and this defendant and the Chicago Title and Trust Company were defendants; that the bill of complaint filed in the superior court asked for an accounting from this defendant in regard to a certain note made by said Batten, held by this defendant, and also in regard to certain securities which, this defendant held as collateral for the payment of said noté, and the' collateral securities so held were set out in detail in said hill in the superior court and were the identical securities mentioned in the subpoena duces tecum and are the identical securities replevied from this defendant in this action; that in obedience to said subpoena this defendant did on May 4 appear before said notary public with all of said securities and on said date, while the testimony' of defendant was being taken before the notary public in the cause then pending in the superior' court, the said Batten caused the writ of replevin in this case to be served on this defendant and caused all of the securities possessed by this defendant to be taken under and by virtue of said writ of replevin, and they were so taken by the sheriff and delivered to' plaintiff; that defendant was never served with summons in the superior court proceeding; that the same deputy sheriff, to whom the chancery summons was given, served this defendant with the writ of replevin and took, from, this defendant the securities, and on May 9, said deputy sheriff returned the chancery summons with an indorsement that the defendant could not be found in this county; that on May 6, 1929, said Batten appeared before the chancellor in the superior court and moved that the bill of complaint be dismissed without prejudice, said order reciting that no service had been had on the defendants named in the bill; that at the time of the service on this defendant of the writ of replevin, the superior court had, by virtue of the filing of the bill aforesaid, jurisdiction of the complainant and of the subject-matter of said bill of complaint, to wit, the securities replevied from this defendant; that the filing of said bill and the procuring and service of the notary’s subpoena duces tecum was a false, fraudulent trick and device of said plaintiff to' cause this defendant to bring said securities where they could be levied upon and taken from this defendant by a writ of replevin; that the filing of said bill and the issuing of the subpoena and the levying of the writ of replevin constitute an abuse of process and were frauds upon the superior court and on this court and on this defendant.

Plaintiff first criticises the plea with reference to its form and cites authorities to the effect that whether a plea is one in abatement or in bar is determined not from the subject-matter of the plea but from its conclusions that the instant, plea is a hybrid combination of both, unknown to the law, and therefore a nullity and wholly insufficient. We may concede that counsel has correctly stated the law as found in many decisions as to the difference between a plea in bar and a plea in abatement. Pitts’ Sons Mfg. Co. v. Commercial Nat. Bank, 121 Ill. 582. The instant plea, however, challenges the jurisdiction of the court to determine the cause and has substantially the prayer of such a plea as given in Puterbaugh on Common Law Pleading, 10th Ed., p. 90, and cases there cited. Such a conclusion to such a plea has also been approved in Goldberg v. Harney, 122 Ill. App. 106; Drake v. Drake, 83 Ill. 526.

The record presents the question whether, while a cause is pending in chancery, a replevin suit may be subsequently commenced and the writ served by seizing the identical chattels which are the subject-matter of the chancery proceeding, and produced in obedience to a subpoena duces tecum in that proceeding. We are referred to no decided cases and we find none exactly in point.

It is the rule that, when the jurisdictions of law and equity are concurrent, the one which first takes actual cognizance of the controversy, ordinarily thereby has exclusive jurisdiction. Pomeroy on Equity Jurisdiction, 3rd Ed., see. 179. As a matter of convenience, if not of necessity, when chattels which are the subject of controversy are produced in court in compliance with a subpoena, they should be immune to seizure in an action subsequently commenced. The confusion which would arise from any other rule would be interminable. Actions would be brought as apparently was done here, simply for the purpose of compelling by a subpoena duces tecum the production of chattels so that they might be seized under some writ issued in a subsequent case. This would invite a conflict between courts of concurrent jurisdiction to be determined by the stronger arm and not by law. The rule that the court which first obtains jurisdiction shall retain the same is salutary and wise, and the present instance calls for its application.

By section 6, Cahill’s St. ch. 110, jf 6, Practice Act, it is not lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, and it has been held that, where service in some other county than where one resides is obtained by some fraud, artifice or trick, such service -is void. Beatty v. Monahan, 240 Ill. App. 240, and cases there cited. In McNab v. Bennett, 66 Ill. 157, it is said that, if one voluntarily leaves his residence and goes into another county, he is not exempt from the .service of civil process, but -if he is arrested by false and fraudulent pretense or by abduction for the sole purpose of obtaining service in a civil suit, it would be a base and utter perversion of the object of the law to permit him to be served with process while there. See also Willard v. Zehr, 215 Ill. 148.

By analogy the same rule should be applied here. The instant plea sets up facts from which it is apparent that the summoning of the defendant to testify before a notary public in the chancery proceeding and the command to produce the notes and chattels in question were not for an honest purpose relating to any issue in the chancery proceeding, but were a pretense and subterfuge for the purpose of subjecting such chattels to immediate seizure under the replevin writ. Courts should not countenance such practice.

The conclusion of the trial court was in accord with justice and is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Joseph Donner, Plaintiff in Error, v. Robin W. C. Francis and Arthur Lederer, Defendants in Error.
    Gen. No. 33,702.

      Opinion filed January 6, 1930.
    William L. Howard and Charles E. Loy, for plaintiff in error.
    David D. Stansbury and Richard H. Welsh, for defendants in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff’s declaration alleged that defendants maliciously conspired and caused certain charges to be filed against him, knowing them to be false and untrue, thereby injuring plaintiff’s reputation. A general demurrer was filed and sustained. Plaintiff electing to stand upon his amended' declaration, it was adjudged that he take nothing. By this writ of error he seeks a reversal.

The parties are all under the United States Civil' Service act and employed at the United States Veterans Bureau in the Edward Hines, Jr., Memorial Hospital in Illinois. The title of plaintiff’s position in the hospital was Senior Laboratorian in Bacteriology, then and there under the United States Civil Service. Defendants are superior officers to the plaintiff, the defendant Francis being the officer in charge of the hospital and the defendant Lederer being plaintiff’s immediate superior officer.

The first count of the declaration alleged that defendants maliciously contrived to have plaintiff dismissed from the service and to this end covertly caused to be filed certain charges with the bureau, knowing the same to be untrue; that by said charges plaintiff was accused of conduct prejudicial to good conduct and loyalty and of making false charges against his superior officer, the defendant Lederer; by means whereof plaintiff without good and proper cause was dismissed and discharged from the service. The second count charged that plaintiff, while so employed, made application to the United States Veterans Bureau to be transferred to another hospital and it then and there became necessary for the superior officers aforesaid to make an indorsement upon a certain inquiry made by the bureau concerning the transfer of plaintiff to another hospital, and that the defendants maliciously made indorsement on said inquiry, setting forth that plaintiff’s conduct was prejudicial to good discipline; that defendants published said libel by causing the written inquiry and indorsement to be mailed and transmitted to the United States Veterans Bureau at Washington, D. 0., and to Major General Frank T. Hines, director of the United States Veterans Bureau, and that by reason of the same plaintiff was not transferred to another hospital. The third count alleges virtually the same matters and also alleges that in furtherance of the conspiracy to injure him, defendants pretended to make an investigation of the charges against him and refused to permit the plaintiff to make his lawful and proper defense thereto, as he was entitled to under the statutes and laws regulating the United States Veterans Bureau and caused a record to be made sustaining such charges in words and figures as follows:

“After carefully reviewing the charges, they have been sustained and your dismissal with prejudice, approved effective September 14, 1925.
W. H. Longfellow.”

The fifth count is virtually the same; it alleges the filing and mailing of the record with reference to said charges to Major General Hines at Washington. The sixth count alleges that defendant Francis visited and conferred with the United States Veterans Bureau at Washington, D. C., and Major General Hines and spoke defamatory words about plaintiff to the effect that he was not a desirable employee for the government.

Section 425, Title 38, page 196, United States Code Annotated, as amended July 2, 1926, and section 652, Title 5, page 265, contains the provisions regulating the operation of the United States Veterans Bureau and" the employees therein. The act shows the establishment of the bureau; that it is under the charge of a director; that all employees, with such exceptions as the President of the United States may deem advisable, shall be subject to the United States Civil Service Law and regulations made thereunder. The. Attorney General has held that a person in the classified civil service cannot be deprived of his status in the service except by removal, as provided in section 652, supra, and it is for the head of a department and not the civil service commission to determine when their records prove cause for removal. 1913, 30 Op. Attorney General 79. The statute on removals provides that charges shall be made in writing.

As to the allegations in the third coqnt that plaintiff was not permitted to make his lawful defense, section 652 provides that no trial or hearing shall be required except in the discretion of the officer making the removal, and also that copies of the charges, notice of hearing and the order of removal, etc., shall be made a part of the records of the proper department or office, as shall also “the reasons for reduction.”

The allegation as to the conversation of the defendant Francis with Major General Hines at Washington shows that it was an official communication.

The question whether or not words and writings are privileged is a question for the court and not for a jury. Young v. Lindstrom, 115 Ill. App. 239. All communications, either verbal or written, passing between public officials pertaining to their duties and in the conduct of public business are of necessity absolutely privileged and such matters cannot be made the basis of recovery in a suit at law. Spalding v. Vilas, 161 U. S. 483; McDavitt v. Boyer, 169 Ill. 475; Young v. Lindstrom, 115 Ill. App. 239; Haskell v. Perkins, 165 Ill. App. 144. This principle was applied in Standidge v. Thomson, 239 Ill. App. 671, which quotes at length from Bradley v. Fisher, 13 Wall. 335, where an attempt was made to compel a trial judge to respond in damages for alleged malicious and defamatory words and acts during a trial. It was there said that, where the acts complained of were made by one in the exercise of his lawful authority and duty, he could not be held responsible for such acts in a civil action, however erroneous the act may have been and however injurious in consequences it may have proved to the plaintiff. A large number of other supporting cases were cited in Standidge v. Thomson, supra.

This rule must prevail in the instant case whether the action charges conspiracy or slander or libel. The acts complained of were done by the defendants acting in an official capacity, in what may be called a quasijudicial capacity. The duty to act was imposed upon them by law and they should not be subjected to vexatious litigation because of such acts; otherwise official independence would be entirely swept away.

The cases cited by plaintiff involving printed publications in newspapers are not in point. Such publications are, of course, voluntary and not imposed by any legal duty.

Defendants make the additional point that the statute of limitations has run and that when this appears on the face of the declaration, this defense may be raised by demurrer, citing Kirkpatrick v. Monroe, 234 Ill. App. 213. The holding in this case is contrary to the weight of opinion and does not correctly state the law. The defense’ that the statute of limitations has run cannot be raised by demurrer even when it appears on the face of the declaration that the limitation has expired. Such defense must be presented by special plea. Heimberger v. Elliot Frog & Switch Co., 245 Ill. 448, and cases there cited. The rule is otherwise in equity pleadings, and where it appears on the face of a bill that a cause is barred by the statute of limitations, the defect may be reached by demurrer. As pointed out in Gunton v. Hughes, 181 Ill. 132, special replications are not now permissible in equity pleadings, and matters which might be specially pleaded in reply to the answer must be availed of by amendments to the bill. It follows, therefore, when the bill sets up facts in avoidance of the statute of limitations, that their sufficiency may be tested by demurrer. But no such rule obtains in common-law pleadings, where special replications are not only allowable but are necessary.

“In actions at law, as contradistinguished from actions under the code, it has always been the established rule that if the defendant desires to avail himself of the statute of limitations as a bar to the demand in suit, he must plead the defense. He cannot demur to the declaration, even where it appears on its face that the limitation prescribed by the statute has expired, for the principal reason that thereby the plaintiff would be deprived of the opportunity of replying that the case was within some of the exceptions to the statute, or any other matter which would prevent the bar from attaching. ’ ’ 13 Ency. of PL & Pr. 200.

We hold that the declaration sets forth communications and acts absolutely privileged and the public interest and public service require that officials should not be in any way fettered in their official statements. 26 Cyc. 376.

The trial court properly sustained the demurrer, and the judgment is affirmed.

Affirmed;

Matchett and O’Connor, JJ., concur.


text:
    National Bond & Investment Company, Appellee, v. Wallace E. Shirra et al., Trustees under a Common-Law Trust, Trading as John Powers Company, Appellants.
    Gen. No. 33,749.

      Opinion filed January 6, 1930.
    Hutson & Traeger, for appellants; John D. Bolger, of counsel.
    John W. Creekmur and D. E. Hoopingarner, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought an action in trover to recover the value of a Peerless sedan which the defendants refused to deliver upon a writ of replevin. Upon a trial the court directed a jury to bring in a verdict for plaintiff for- $1,825, and from the judgment thereon defendants appeal.

Defendants, who are trustees operating the John Powers Company, a common-law trust, about October 10,1926, bought the car' in question, from the Peerless Motor Car Company and placed it in the salesroom of the Advance Motor Sales Company, also a common-law trust. Defendants say they had an understanding with the Advance Company that the Peerless cars placed in its salesroom were for display purposes only and were not to be offered for sale, October 12? 1926, a conditional sales contract Was executed between the parties, stating that the Powers Company had sold the car to the Advance Company for $1,510.13, and a note for this amount was executed by the Advance Company, payable on demand, which note and contract were delivered to and held by the Powers Company, the defendants. The contract contained the usual provisions that title should be retained by the seller, the defendants, until the car was entirely paid for, with the right of repossession in the seller in case of 'default.

Ben Baldón was the secretary and treasurer of the Advance Company and apparently owned all its stock, although there is some suggestion that another man and possibly Baldón’s wife were interested. October 22, 1926, the Advance Company executed a conditional sales contract selling the car to Ben Baldón for $2,245.88. The contract recited that $695 was paid in cash and the balance of $1,550.88 by Baldón’s note, payable in monthly instalments. This conditional sales contract was executed by “Advance Motor Sales Company by Ben Baldón, Sec. and Treas.” as seller, and by “Ben Baldón” as purchaser. On the same day this sales contract and note were assigned by the Advance Company by “Ben Baldón, Sec. and Treas.” to the plaintiff, National Bond and Investment Company, which paid $1,380 for the same by draft payable to the Advance Motor Sales Company. Plaintiff is a finance company purchasing from retail dealers notes and contracts evidencing sales of automobiles. Later an investigator was sent on behalf of plaintiff to check the motor number of the car and found it at the place of business of the Advance Motor Sales Company in Chicago. The car remained in the possession of the Advance Company until November 10, 1926, when Baldón disappeared and thereupon defendants took possession of the car, claiming under their conditional sales contract with the Advance Company, and sold it. Subsequently plaintiff brought suit in replevin, demanding the automobile from defendants, which they refused to deliver, and this action in trover followed.

Peerless cars sold were delivered to purchasers not from the showroom of the Advance Company but from the Peerless Company’s warehouse. The car in question remained on the floor of the salesroom of the Advance Motor Sales Company until taken away by the defendants. The Advance Company was engaged in the business of selling automobiles and had cars other than Peerless on the floor of its salesroom.

The question is whether the defendants were entitled to the car under their conditional sales contract with the Advance Company dated October 12, 1926, or whether the plaintiff was entitled to'the car under the conditional sales contract between Ben Baldón and the Advance Motor Sales Company dated October 22, 1926, and assigned to plaintiff.

Defendants in their brief claim a better title to the car because their conditional sales contract was prior in point of time to that held by plaintiff. This point is without merit. Such contracts were not recorded and the contract held by defendants was in the nature of a secret lien, of which plaintiff had no notice.

The question must be determined under the provisions of the Uniform Sales act, which provides in section 23, Cahill’s St. ch. 121a, If 26, cl. 1:

“Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.”

The Advance Motor Sales Company was in the business of selling automobiles. Possession of the car in question was given by the defendants to the Advanee Company, either for the purpose of selling it or as a sample car. The fact that it was subject to a conditional sales contract retaining title in the defendants and also to the understanding that it was not to be sold but used only as a sample, so far as the record shows, was not known to plaintiff nor to anyone except the parties to this understanding. Defendants knew that the Advance Motor Sales Company was selling automobiles at retail.

As a general rule, where the true owner of the property allows another to appear as the owner of or to have full power to dispose of the property, so that a third party is led into dealing with the apparent owner, an estoppel may operate against the true owner which would preclude him from disputing the existence of a title which he has caused or allowed to appear vested in another. Drain v. LaGrange. State Bank, 303 Ill. 330. The facts under consideration in Illinois Bond & Investment Co v. Gardner, 249 Ill. App. 337, are very similar to those in the instant case. There, a company engaged in the business of selling automobiles took an automobile, with permission of the plaintiff, to its regular place of business and placed it in the display room. It was bought by a purchaser and the plaintiff claimed title under a trust agreement. In its opinion the court said: “A customer going into a retail store and seeing goods on display offered to the public generally for sale, buying such goods, in good faith, should be protected against the holder or owner of any secret lien of which the purchaser has no notice. To hold otherwise would seriously interrupt business. Purchasers would hesitate before buying for fear the seller could not give good title to the goods he has for sale, because of some one having a secret lien through some trade acceptance of bill of sale for said goods.”

Another case in point is Commercial Credit Co. v. Hardin, 175 Ark. 811, where the court said: “The fact that Hardin (the original owner) placed the Star coupster in the possession of the Mack Company for sale, even though with a limitation upon the price and terms of sale, puts him in no better position as regards the disposition thereof than the holder of a void chattel mortgage. ’ ’

In Kearby v. Western States Securities Co., 31 Ariz. 104, the court quoted from Gump Inv. Co. v. Jackson, 142 Va. 190, as follows: “One conclusion is that some duty, at least, rests upon an individual, corporate or otherwise, who finances a retail dealer, to see to it that cars upon which he has a lien are not left under the domain and control of such dealer on his salesroom floor, to be offered to the public. The business of the G-ump Investment Company was to finance retail automobile dealers, and it did finance them for a profit. It assumed some risk both as to the moral and financial standing of every dealer it financed. It took a risk as to the hazard for a profit. This is the status of the 'Grump Investment Company in this case.”

In Sherer-Gillett Co. v. Long, 318 Ill. 432, cited by defendants, Taylor, who ran a grocery store, sold a counter to Long two days after Sherer-Gtillett Company had delivered it to Taylor under a conditional sales contract. In that case Taylor was not engaged in the business of selling counters, but was engaged in the business of selling groceries.

We hold that, by the defendants’ conduct in delivering possession of the car to the Advance Motor Sales Company, they are estopped from asserting any secret lien or agreement against the plaintiff.

Defendants say they did nothing that misled the plaintiff, for it did not know that the car was in the display room of the Advance Company at the time of its transaction with Baldón. The sales contract from the Advance Company to Baldón recites that the “execution of said note shall be conclusive proof of the delivery of said automobile to said purchaser.” Plaintiff dealt with Baldón as purchaser who had both possession and apparent title to the car and it was not concerned with what he did with it so long as he did not violate the sales contract.

It is contended that there was no bona fide sale from the Advance Motor Sales Company to Baldón; therefore, the conditional sales contract which was assigned to plaintiff is void. If the Advance Motor Sales Company, of which Baldón owned all or nearly all of the stock, undertook to sell the car to Baldón individually, such transaction was not necessarily void. Certainly, as far as the plaintiff knew .to the contrary, as far as the evidence shows, it was a valid sale. The note signed by Baldón was a valid promissory note, as was the sales conditional contract. The validity of a similar contract and note has already been upheld in this court. National Bond & Investment Co. v. Lanners, 253 Ill. App. 262.

It is argued that plaintiff by inquiry could have ascertained the existence of defendants’ lien. Defendants were strangers to plaintiff in the transaction. Inquiry of Baldón would probably not have produced any information as to any other claim, for Baldón represented himself to plaintiff as a bona fide purchaser from the Advance Motor Sales Company. In any event, there is no evidence that Baldón would have informed plaintiff of defendant’s title and the conclusive inference from his conduct is that he would not have done so.

It is claimed that the judgment of $1,825 is excessive. • The contract and note held by plaintiff entitled it either to the payment of $1,550.88 or the possession of the car, and when defendants made it impossible for plaintiff to take possession of the ear, its damages must be measured by the principal amount unpaid on ' the Baldón note and contract on November 10, 1926, the date defendants took possession of the car, together with interest from said date, provided said amount be not more than the value of the car on said date. A witness testified that the market value of the car at this time was $2,000. No contrary evidence was intro-, duced. The amount of the judgment is made up of the principal and interest at the rate provided for in the note and is less than the value of the car.

For the reasons indicated the judgment is affirmed..

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Joseph Ryan, Appellee, v. State Auto Parts Corporation, Appellant.
    Gen. No. 33,758.
    Opinion filed January 6, 1930.

      Hector A. Brouillet and S. E. Weinshenker, for appellant; Clyde C. Fisher, of counsel.
    Loesch, Scofield, Loesch & Richards, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, while upon the premises of the defendant, was injured by falling down an elevator shaft negligently left open and unguarded. He brought suit to recover damages and upon trial had a verdict for $5,000, upon which judgment was entered and from which defendant appeals.

The major point urged for ground for reversal is that plaintiff was at the time of the accident, November 12, 1926, in the employ of the Motor Transportation Company which, with the defendant, was under the Illinois Workmen’s Compensation Act, Cahill’s St. ch. 48, ff 201 et seq., and therefore plaintiff was barred from prosecuting this action at law. It is also said that the damages are excessive, being in excess of the amount authorized by the Workmen’s Compensation Act.

Whether or not the point is decisive depends on the status of plaintiff in the Motor Transportation Company. The business of this company is hauling material by truck, mostly building material. It operates between 60 and 65 trucks. Plaintiff was a stockholder and had been connected with it for about 15 years. He was its superintendent, secretary and purchasing-agent; he bought all necessary motor parts, hired all of its employees, made charges for services, entered them on the books of the company and checked all bills. The bookkeeper made out all cher’-s and signed them and plaintiff checked them over and, if correct, countersigned them. He drew a salary and received the same monthly by checks countersigned by himself. John A. Muldoon was president of the corporation and both he and plaintiff signed contracts. Plaintiff did not drive any of the trucks, but was the executive officer of the company.

Plaintiff testified that he had learned that the defendant had some secondhand motor trucks for sale and he went to examine them with a view of buying them for the Motor Transportation Company. It was while on defendant’s premises upon this errand that the accident happened.

Defendant quotes section 5 of the Workmen’s Compensation Act of 1925, Cahill’s St. ch. 48, If 205, defining the term “employee” as “every person in the service of another under any contract of hire, express or implied, oral or written,” etc. It is argued that this comprehends the plaintiff, who was under a contract of hire with the Motor Transportation Company and therefore plaintiff comes within the act.

We are not disposed to agree with this contention. The Workmen’s Compensation Act contemplates the relation of master or employer, on the one hand, and servant or employee on the other. One who is an officer of a corporation, while acting as such, represents the corporation and his acts are the acts of the corporation. He makes the contracts of employment of the corporation with the employees, and it would be an obvious misnomer to call him an employee while so acting for the corporation. In Harper’s Workmen’s Compensation Act (2nd Ed.), page 202, section 106, it is said: “The law with reference to workmen’s

compensation contemplates two persons standing in the opposing relations of master and servant, employer and employee, plaintiff and defendant, or a person entitled to judgment or an award in his favor against another person obligated to pay it. The law does not contemplate the anomaly of one person occupying this dual relation and paying himself for injuries received, with the funds ,in which he has a joint interest.

“It is therefore generally held that executive officers -of private corporations and members of partnerships are not entitled to compensation for injuries sustained in connection with the industry carried on by them, because a person cannot be at one and the same time employer and employee.”

In Cooper v. Industrial Acc. Comm. of California, 177 Cal. 685, the court said of a similar situation: “The law relative to compensation as between master and servant, or employer and employee, for injuries suffered by the latter, contemplates two persons standing in this opposed relation and not in the anomaly of one person occupying the dual relation of master and servant, employer and employee, plaintiff and defendant.”

In Bowne v. Bourne Co., 221 N. Y. 28, the plaintiff was president of the defendant company and its principal active officer. He was injured while assisting employees of the corporation and presented a claim under the Workmen’s Compensation Act. The intermediate courts allowed the claim, hut the Court of Appeals reversed this finding, holding that the statute defining an employee did not justify the conclusion that the distinction between the higher executive officers of the corporation and its workmen was obliterated. In Rockefeller v. Industrial Comm. of Utah, 58 Utah 124, it has been held that partners are not employees within the provisions of the compensation act. To a like effect is McMillen v. Industrial Commission, 13 Ohio App. 310. In Millers’ Indemnity Underwriters v. Patten (Tex. Civ. App.), 238 S. W. 240, attention was called to the Texas statute providing that officers and directors of a corporation are not deemed to he employees, but in the opinion it was stated that the relation of such officers to the corporation would fix their status as other than employees even if the legislature had not deemed it appropriate so to provide by statute. In Weiss v. Baker-Weiss Packing Box Co., 193 N. Y. S. 800, it was held that one, who was secretary and general manager of a company, was not entitled to compensation as an employee under the compensation act. Other similar cases might be cited.

The defendant cites a line of cases which, it argues, supports its theory that plaintiff comes under the compensation act, but these are cases where an execiu tive officer of a corporation received injuries while doing work outside his duties as such officer, such as manual work of an ordinary employee. Such a case is Dewey v. Dewey Fuel Co., 210 Mich. 370, where the plaintiff was president of the defendant corporation but was also employed and paid as a yardman and was doing the work of such employee, subject to the orders of the mánager, when he was injured. So in Eagleson v. Harry G. Preston Co., 265 Pa. St. 397, where the plaintiff, a director of defendant company, for which he received no salary, was also employed as a salesman, receiving compensation, and while in pursuit of his duties as salesman was injured. In this case the court particularly noted that it was not considering the case of a higher executive officer of a corporation claiming an award under the compensation act. Hubbs v. Addison Electric Light & Power Co., 230 N. Y. 303, was a case where an officer was injured while engaged in manual labor as an ordinary employee and receiving a weekly wage as an employee. Also a similar case was Matter of Skouitchi v. Chic Cloak & Suit Co., 230 N. Y. 296. Other like cases might be .cited, in-all of which the officer of the company was performing manual labor of an employee when he received the injuries for which compensation was allowed under the compensation act.

Prom a consideration of these and many other decided cases we hold that in the instant case plaintiff, while investigating trucks which defendant was offering for sale with a view of purchasing the same on behalf of the Motor Transportation Company, was acting in his official capacity as the executive manager of his company, and that while injured in performing this duty he was not doing the work of an employee and hence would not come under the Workmen’s Compensation Act.

Our holding, as above stated, is decisive of this case, but plaintiff argues another proposition which under the circumstances we do not think it necessary to' discuss at length. Stated briefly, it is that the Motor Transportation Company was authorized by its charter to engage in the business of carriage by land; it was not authorized to engage in any other work; that the compensation act automatically applies to it and such of its employees as may sustain an accidental injury “arising out of and in the course of their respective employments,” while engaged in a hazardous branch of their employers’ business. Workmen’s Compensation Act, section 3, Cahill’s St. ch. 48, ff 202. In Kelly-Atkinson Const. Co. v. Foreman Bros. Banking Co., 218 Ill. App. 345, it was held that to make the terms of the act applicable it would be necessary that the injury arose out of and in the course of the employee’s employment and not out of and in the course of some nonhazardous branch of his employer’s business. Other cases so holding are Runge v. Chicago Junction Ry. Co., 226 Ill. App. 187; Anderson v. Chicago, B. & Q. R. Co., 250 Ill. App. 92; Board of Education of Chicago v. Industrial Commission, 321 Ill. 23; White Star Motor Coach Lines v. Industrial Commission, 336 Ill. 117.

Plaintiff was injured because of an open elevator shaft on defendant’s premises, where he was examining trucks with a view to purchasing them. While purchasing trucks would be comprehended in the business of the Motor Transportation Company, it cannot be said that this was a hazardous branch.of his company’s business. There is persuasive force in this point, but we prefer to rest our decision on the holding first above stated, namely, that the relation of plaintiff to the Motor Transportation Company and the acci•dent in question does not come under the Workmen’s Compensation Act. It follows, therefore, that he was entitled to prosecute his claim by an action at common law.

The judgment is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    Joseph Percival and Loretta Kneller, Appellants, v. William Schneider et al., Appellees.
    Gen. No. 33,574.

      Opinion filed January 6, 1930.
    Rehearing denied and opinion slightly modified January 20, 1930.
    Frank Emerson Brightman, for appellants; Edward D. Feinberg, of counsel.
    Julian J. Luster, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is brought to this court by the complainants, who complain of á decree which dismissed their bill for want of equity.

The bill alleges that complainants are the heirs at law of Margaret M. Schneider; who was seized in fee simple of certain premises described, having acquired title thereto by warranty deed on November 26, 1913, and who thereafter died intestate on October 2, 1927.

The bill further alleges that on November 30, 1918, there was recorded in the office of the recorder of deeds of Cook county a warranty deed from said Margaret Schneider and the defendant William Schneider, her husband, conveying said premises to the defendant Josephine O’Brien; that Margaret M. Schneider received no consideration for the conveyance but Josephine O ’Brien took the real estate as trustee for Margaret M. Schneider and her heirs; that the equitable title in the property remained in Margaret M. Schneider up to the time of her death.

The bill further avers that Josephine O’Brien never went into possession of the premises, but that Margaret M. Schneider remained in control of the same until her death, collected the rents, made repairs, etc.; that William Schneider, her husband, had a mere dower interest in the property; that on November 22, 1927, after the death of Margaret M. Schneider, Josephine O’Brien conveyed the premises to William Schneider, the surviving husband; that there was no consideration for said conveyance, but that the conveyance was obtained through the misrepresentations of William Schneider, who desired to cut off the interests of complainants in the real estate of their mother.

The bill also avers that on April 23, 1928, William Schneider conveyed the property in question to his brother, Albert C. Schneider, and received therefor $24,000; that William Schneider refused to account for the money and notes received by him. Complainants therefore prayed that he might be required to make answer but not under oath; that he might be declared to hold the money, bills, notes, mortgages and other property which he received by reason of the sale of this real estate, in trust for complainants, and that he be required to account for all rents, profits, moneys, notes, mortgages and property which he received for said real estate; that he be enjoined from selling or disposing of the consideration received by him from the sale of the real estate, and for further relief.

Pending the suit and' after his appearance therein, William-Schneider died and the Noel State Bank was appointed- executor of his estate and answered, admitting the-.transfer of the property by Margaret M. Schneider and William Schneider to Josephine O’Brien but denying that Josephine :0 ’Brien took title to the same as trustee for Margaret M. Schneider and her heirs, and denying that the equitable title resided in Margaret M. Schneider.

The answer further averred that the purpose of the transfer to Josephine O’Brien was to have her reconvey to Margaret Schneider and William Schneider in joint tenancy; that at the same time that the deed was signed and delivered to Josephine O’Brien she executed and delivered a deed reconveying the property to Margaret Schneider and William Schneider in joint tenancy and not as tenants in common; that Margaret M. Schneider and William Schneider lived on said property after 1918 under the belief that they had the record title in joint tenancy; that they did not know nor did Josephine,O’Brien know that the record title to the property was still in the name of Josephine O’Brien, and that the deed reconveying the property in joint tenancy had never been recorded; that Josephine O’Brien, upon being advised of the facts and of the death of Margaret M. Schneider, executed a deed to William Schneider conveying the property and carrying into effect the status of the property that would have prevailed under the provisions of the deed that she executed and delivered at the same time the deed was made transferring the property to Josephine 0 ’Brien.

The answer denied that the purpose of the conveyance to Josephine O’Brien was to relieve the property from liens of judgments or decrees which might be recovered against Margaret M. Schneider; admitted that Josephine O’Brien was never in possession or control of the property; denied that Margaret M. Schneider was in possession and control, but stated the fact to be that Margaret M. Schneider jointly with her husband was in possession and control of the property and that they both managed it.

The answer also admitted that Josephine O’Brien reconveyed the property to William Schneider in November, 1927, but denied that this conveyance was made for the purpose of cutting off the interest of the heirs of Margaret-M. Schneider or for the purpose of defrauding; admitted that defendant conveyed the property to Albert C. Schneider on April 23, 1928; averred that complainants knew of such conveyance; demanded strict proof of the allegations that William Schneider received $24,000 in consideration of the conveyance or that there had been any request for defendants to account for the money.

The chancellor after hearing the evidence offered by the complainants entered a decree as already recited, which complainants seek by this appeal to reverse.

The evidence leaves practically no dispute as to the facts. Margaret M. Schneider was the owner of the premises, taking title thereto by warranty deed on November 26, 1913, and the evidence tends to show that the purchase was closed in the real estate office of a Mr. Schultz. The vendor received as á part of the purchase price of the property notes to secure a mortgage on the same. These notes were placed in the bank for collection and Schultz collected the money on the notes. The contract was signed by Mrs. Schneider and the evidence fails to disclose whether the money paid on the purchase price belonged to the husband or wife or to both of them. The evidence on that point was given by relatives of Mrs. Schneider and is quite conflicting.

On other issues there is practically no conflict disclosed by the evidence.

Josephine O’Brien, who was called as a witness by complainants, testified that she did not pay anything for the property conveyed in the deed to her and that she did not claim to have obtained any interest in the property by reason of that conveyance. She denied, however, that she took the property in order to hold it for Mrs. Schneider, and she acknowledged the execution of the conveyance by her to William Schneider on November 22, 1927. Her testimony in brief is to the effect that she was employed by a real estate man, Mr. Schultz,. as his stenographer and secretary for more than 20 years; that Mr. Schultz was also an attorney; that at any rate he did legal work and real estate law. She says that Mr. Schultz told her, ‘ ‘ The Schneiders want to fix up their property; that is, to make a joint tenancy deed; they were to put the property in joint tenancy.”

Thereupon the following took place in court:

“The Court: At the time of the conveyance to you, were you taking it with the understanding that you were getting any beneficial interest in the property?

The Witness: No. Mr. Schultz told me that it was just as we often did in the office, where people want to fix their property. I had no interest in it.

The Court: Just answer my question. You took it with the understanding that you were getting no beneficial interest in the property?

The Witness: No, I had no interest.

The Court: You were taking it really as a proceeding for the purpose of making a reconveyance?

The Witness: Yes.

The Court: What reconveyance were you told at the time was to be made of the property?

The Witness: They wanted a joint tenancy deed.

The Court: You took it with the understanding that you were to execute a reconveyance to William Schneider and his wife as joint tenants and not as tenants in common?

The Witness: Yes.

The Court: You were told that specifically?

The Witness: Yes. Mr. Schultz was their agent.

The Court: And it was upon that condition that you took the deed to yourself?

The Witness: Yes.

Mr. Feinberg: Now, who told you that?

' The Witness: Well, Mr. Otto Schultz.”

Miss O’Brien further testified that thereafter both Mr. and Mrs. Schneider remained in possession of the premises; that the incumbrances on the property were paid by both Mr. and Mrs. Schneider, sometimes by one and sometimes by the other; that there was a first and second mortgage but she did not know whose money went to pay the first and second mortgages.

It is the contention of the complainants that Josephine O’Brien took the title in trust from Margaret M. Schneider; that Margaret M. Schneider was the equitable owner of the same at the time of her death, October 2, 1927.

Complainants suggest that it is the law that a person who takes title to property from a trustee without paying a valuable consideration will hold the same as trustee for the benefit of the equitable owner or owners. They cite Perry, Jarius Ware, “A Treatise on the Law of Trusts and Trustees,” 6th Ed. sec. 217; McVey v. McQuality, 97 Ill. 93; Stahl v. Stahl, 214 Ill. 131; Brooks v. Grets, 313 Ill. 290.

The law as stated in these authorities is not questioned, but it is easily distinguishable from this case in that the uncontradicted evidence tends to show that the trust reposed in Josephine 0 ’Brien was not for the benefit solely of Margaret M. Schneider, but was for her benefit and that of her husband jointly. The obligation of Josephine O’Brien was to convey to them in joint tenancy and not as tenants in common. The rights of the heirs of Margaret M. Schneider therefore 'would seem to depend upon the nature of the conveyance, which was to be made to Margaret M. Schneider and her husband by Josephine O’Brien. The uncontradicted evidence shows the agreement was that this conveyance should be made in joint tpnancy.

But as against this view complainants contend that the court erred in finding a trust from the testimony of Josephine O’Brien, which it is urged was mere hearsay, citing Hately v. Kiser, 253 Ill. 288, and Luthy & Co. v. Paradis, 299 Ill. 380, cases which state the general rule with reference to receiving hearsay testimony.

The record discloses that no objection was made to this testimony at the time it was offered, and there is authority to the effect that in the absence of objection, hearsay is competent. Hoover v. Empire Coal Co., 149 Ill. App. 258. However this may be, the burden of proof was upon the complainants, and in order to establish the trust as alleged they called Josephine O’Brien as their witness and questioned her as to the circumstances under which she received the deed conveying title to her. The whole transaction was therefore admissible, including the statement of Schultz, whose agency for the husband and wife was also established by uncontradicted evidence. The testimony of Josephine O’Brien was therefore not hearsay but original evidence. Indeed, her testimony presents the only reasonable explanation as to why Mrs. Schneider executed and delivered a deed conveying the title to her. The evidence of Josephine O’Brien establishes without contradiction that she took the title in trust; that she would convey the same to the husband and wife in joint tenancy. If this evidence was excluded it would then appear that complainants have wholly failed to establish either the fact of the trust or the terms thereof.

Complainants further contend, however, that if it is admitted that the purpose of the trust was to reconvey the real estate to Margaret and William Schneider in joint tenancy, it was impossible to have such joint tenancy created unless the conveyance was made as required by law during the life of Margaret and William Schneider, and they- cite in this connection section 1, ch. 76, Cahill’s Ill. Rev. St. on joint rights and obligations. That statute by its terms excludes conveyances made to executors and trustees. It is quite true that upon the death of Margaret M. Schneider it would have been impossible to create an estate of joint tenancy in her and her husband, William Schneider, but equity in such cases finds a way in which the intention of the donor may be carried out by applying to the situation the equitable maxim that equity regards that as done which ought to be done. In other words, equity will not permit the failure of Josephine O’Brien to execute the trust in the lifetime of Margaret Schneider to defeat the intention and purpose of Margaret M. Schneider. As against this, complainants contend that the maxim will not be so applied as to consider an essential thing done where that thing is beyond the power of anyone to do. They cite Corpus Juris, vol. 21, sec. 191, and Hodalshi v. Hodalshi, 181 Ill. App. 158.

In this last-mentioned case, Hodalslci, the holder of a benefit certificate in a fraternal insurance society, while in failing health, agreed to. change the beneficiaries in his policy to certain creditors whom he desired to reimburse. The by-laws of the society provided in substance that such change could not be made unless a new certificate was issued during the lifetime of the member. The request for the new certificate did not reach the secretary of the society until after the death of the beneficiary. There is no restriction here analogous to that created by the by-laws of the society in that case, and the authority is not in point.

The defendant contents (and not without some reason) that there is a variance between the allegations of the bill and the proof in that the bill alleges that the transfer by Mrs. Schneider was made for the purpose of defrauding creditors, of which there is no proof, citing Houlihan v. Morrissey, 270 Ill. 66. If this allegation had been proved, however, it would have precluded granting to complainants the relief prayed for in the bill. Brady v. Huber, 197 Ill. 291.

It is unnecessary, however, to discuss these points. On the nncontradicted evidence the prayer of the bill could not be granted.

The decree is therefore affirmed.

Affirmed.'

McSurely, P. J., and O’Connor, J., concur.