text:
    American Guaranty Company, Appellant, v. State Bank of East Lynn, Appellee.
    Gen. No. 8,016.
    1. Corporations — when allegations as to doing business in State are mere conclusions. Averments in the plea that plaintiff, a foreign corporation, was engaged in doing business in this State, and that the cause of action arose out of business being done in this State, are mere conclusions.
    2. Corporations — how statute relative to certificates to foreign corporations construed. The omission of the words “amenable to the provisions of this act” from Cahill’s St. ch. 32, j[ 94, which appeared in the former corresponding law, does not make this act, which penalizes foreign corporations without certificates from the State secretary and prohibits their entrance into courts of this State, apply .to all foreign corporations including those exempted by Cahill’s St. ch. 32, t 80.
    3. Statutes — how revisions construed: Unless the legislature makes clear its contrary intent, it is presumed in revising an act to have in mind the prior act’s judicial construction which takes into consideration the intent of the lawmakers in passing a law and the meaning of the whole act rather than of separate sections.
    4. Corporations — in tent of statute as to certificates to foreign corporations. The legislature in omitting from "the 1919 revision, of the former Corporation Act the words “amenable to the provisions of this act” in Cahill’s St. eh. 32, 1)94, barring actions by corporations not possessing a certificate of authority from the secretary of State, intended to avoid the absurdity of forbidding the courts to all corporations within the scope of the revised Corporation Act, some of which are under the jurisdiction of other branches of the State government.

      5. Corporations — when certificate of authority not a prerequisite to action by a foreign corporation. A foreign guaranty company is not barred from maintaining an action in this State under. Cahill’s S.t. ch. 32, K 94, because it had not obtained a certificate of authority from the secretary of State, as under Cahill’s St. ch. 32, f 80, such companies are expressly exempted from the necessity of obtaining such certificates.
    6. Corporations — when, plea insufficient to set up want of authority to do business in State. A plea seeking to bar action by a foreign corporation on the ground that it had not obtained a certificate of authority from the secretary of State as required by Cahill’s St. ch. 32, f 94, which does not allege that such corporation was organized for pecuniary profit, or that it was doing business under its charter powers is insufficient, since it may be doing business in the State under a law which does not require a license as a condition to doing business in the State.
    7. Negotiable instruments — who are holders in due course. One who takes as payee a certificate of deposit in return for cash, without notice of any defect in the issuance, is a holder in due course under Cahill’s St. ch. 98, 1(1146, 49, 72 and 213.
    8. Corporations — when notice to officer not notice to corporation. Notice to an officer of a corporation is not notice to the corporation in transactions where the officer is dealing with the corporation in Ms own interest and not in the interest of the corporation.
    9. Corporations — when not bound by notice to officer. An agreement of the 'president of a guaranty company and a bank that the latter should issue a certificate of deposit to his company as an accommodation for which the bank was to hold his own note, and on wMch certificate he received the cash from Ms company, was done for his benefit contrary to the interest of his company and was not such notice of defect in the certificate to the company, as to destroy its remedy to collect thereon as a holder in due course.
    Appeal by plaintiff from the Circuit Court of "Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed February 28, 1927.
    Rehearing denied April 12, 1927.
    Gillespie & Gillespie, for appellant; Williams, Sinks, Gearheart & Williams, Rearick & Meeks and Hugh J. Dobbs, of counsel.
    Acton, Acton & Snyder, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellant, a corporation of the State of Ohio, filed its suit in the Vermilion county circuit court to recover from appellee the amount of a certificate of deposit issued by appellee in the following terms:

“State Bank of East Lynn
Certificate of No. 213
Deposit. $3500.00
“East Lynn, 111., June 1st, 1923.
“American Guaranty Company has deposited in this bank thirty-five hundred and no/100 dollars, payable to the order of themselves, to draw 4 per cent interest to January 1st, 1924, on the return of this certificate properly endorsed.
F. P. McCord,
Not subject to check. Cashier, ”

There was an additional count to the declaration in trespass, on the case on promises, that on June 1,1923, at Columbus, Ohio, in consideration of the surrender by appellant of a certificate of deposit of like sum, then held by appellant, theretofore issued to appellant by appellee, appellee then and there paid appellant the sum of $70 interest on said former certificate, and delivered to said appellant, by United States mail, at Columbus, Ohio, a certificate of deposit, in the words and figures as set out.

Appellee’s amended first additional plea in sub stance averred that appellant was a foreign corporation, organized and incorporated under the laws of the State of Ohio; that appellant, prior to the bringing of this action, was engaged in doing business in the State of Illinois; that the cause of action sued upon is an alleged promise of appellee to pay to appellant certain moneys claimed to be due to appellant from appellee for and by reason of a certain transaction arising out of and being a part of the business of appellant then and there being done in the State of Illinois; that appellant, at the time of the transaction of said business, had not, and neither has it at any time heretofore, filed in the office of the secretary of State any statement or application to do business in the State of Illinois; that said appellant has not at any time heretofore complied with any provisions of the statutes of Illinois concerning foreign corporations doing business in this State, and that appellant has not received a license or ermit to do business in the State of Illinois.

There was a general and special demurrer filed by appellant to this plea, which, upon a hearing, was overruled and appellant elected to stand by its demurrer.

Appellee filed a second plea to said declaration in substance averring that the supposed certificate of deposit was never executed and delivered by appellee as a binding obligation, but only for the special purpose, to wit, that on or about May 14, 1915, appellant, by and through one John L. Hamilton, who was then and there president of appellant, a corporation, and acting for and in behalf of' appellant, requested appellee, through its cashier, to execute to appellant a certificate of deposit for $3,500 merely as an accommodation to appellant, and for which the said John L. Hamilton would deliver to appellee his promissory note, running for the same length of time and for the same amount as the certificate of deposit, which the appellee should hold until the amount of the certificate of deposit was paid to appellee in cash, and with the distinct agreement by and between appellant, through its president and appellee, through its cashier, that the certificate of deposit and said note should be renewed from time to time until such time as appellant should deposit with appellee the amount mentioned in the certificate of deposit, and with the further understanding and agreement between said parties that the certificate of deposit was not intended and should not take effect as a valid obligation and should not be considered delivered as a valid or binding obligation of appellee until the deposit with appellee, by appellant, of the said sum of $3,500 mentioned in said certificate; that only upon the payment of said sum should said certificate of deposit be considered as delivered as a present or binding contract; that appellee should incur no liability by signing said certificate of deposit unless and until the .amount of said certificate was deposited in cash by appellant with appellee, and that in pursuance of said agreement said original certificate of deposit and said note were concurrently executed and after-wards concurrently renewed from time to time until June 1,1923, when the certificate of deposit mentioned in the declaration was executed by appellee to appellant, concurrently with the renewal of said promissory note; that at no time has appellant or anyone in its behalf paid or delivered to appellee any money or anything else of value whatsoever for the execution.of the certificate of deposit sued upon, and that said certificate of deposit was not executed upon any good and valuable consideration whatsoever. Appellee brings into court and offers to deliver to appellant the said last renewal note, taken concurrently with the execution of said certificate of deposit.

To this plea appellant filed its fifth and ninth replications, averring in substance: That at the time appellee issued the certificate of deposit, as set out, the appellee accepted from the said John-L. Hamilton his individual and personal note in the sum of $3,500, due in six months after date, with interest at the rate of 6 per cent per annum, representing a loan by appellee to said John L. Hamilton, individually, in that amount; that appellee thereupon issued and delivered to said John L. Hamilton the certificate of deposit set-out, making the same payable, at the request of said Hamilton, to-.the appellant, and thereupon said Hamilton presented the same to appellant and appellant advanced to said Hamilton the sum of $3,500 without any notice to appellant of any supposed understanding or agreement, as is in said plea averred; that said transactions were for the personal and individual benefit of said John L. Hamilton and not for the benefit, advantage or accommodation of appellant; that appellee then and there well knew that appellant was without notice of any supposed understanding or agreement, as set forth in said plea, and thereafter appellee concealed from appellant all notice or knowledge of said alleged transaction, although it well knew that said transaction was unknown to appellant and that said transaction was beyond the authority of the said John L. Hamilton to act for plaintiff, as appellee then and there well knew. The replications further aver the renewal of said note from time to time and the payment of a large amount of interest thereon by Hamilton to appellee, and the renewal of said certificate and the payment of interest thereon by appellee to appellant for a period of eight years at the rate of four per cent per annum. The replications further aver that at no time until the commencement of this suit did appellee ever claim that appellant was to assume or pay the obligations of said John L. Hamilton, in said note described, or that there was any understanding or agreement on the part of appellant that said original certificate of deposit, and those issued in renewal thereof, were not what they purported to be, or that the same did not constitute a valid obligation on the part of appellee, or that said transactions were without consideration; but it is averred in said replications that appellee at all times treated the said John L. Hamilton, individually, and the signers of said notes as its debtors, and at all times appellee acknowledged itself to be indebted to appellant in accordance with the terms of said certificates. It is further averred that at the time of the execution of the first certificate of deposit and at the maturity thereof, and at the execution of the first promissory note by said Hamilton, and for some time thereafter, said Hamilton was financially responsible and owned real estate and other property in the State of Illinois in a sum, in value, above exemptions and incumbrances, in excess of $3,500 out of which judgment could have been collected by legal process in that sum, and that .since the issuing of said certificate of deposit and before appellee ever asserted the supposed defense attempted to be set forth in said plea, and before appellant was informed of said alleged arrangement, or had any notice thereof, said Hamilton became and now is insolvent, and appellant is now unable to recover from said Hamilton any sum or sums whatsoever by reason of such insolvency, and this appellant was ready to verify, etc.

Appellee demurred to the replications and the demurrer was sustained whereupon appellant electing to abide by the replications, and upon its demurrer to appellee’s amended first additional plea, judgment was entered for appellee that plaintiff take nothing, and the record is brought to this court for review.

As to appellee’s amended first additional plea that appellant, prior to the. bringing of this action, was engaged in doing business in the State of Illinois and that the cause of action arose out of business being done in the State of Illinois, the averments were the mere conclusions of the pleader, as the statutes regulating foreign corporations have heretofore, in this State, been construed. (Alpena Portland Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354; Plew v. Board, 274 Ill. 232, and many other cases.) But appellee contends that section 94, Cahill’s St. ch. 32, 94, of the revision of the Corporation Act, passed in 1919, is as follows:

‘ ‘ § 94. No foreign corporation doing business in this State without a license shall be permitted to maintain any suit at law or in equity in any of the courts of this State upon any demand, whether arising out of contract or tort; and all such corporations shall be liable by reason thereof to a penalty therefor of not less than two hundred and fifty dollars nor more than one thousand dollars, to be recovered in any court of competent jurisdiction, in a civil action to be begun and prosecuted by the Attorney-General,” is to-be read and enforced literally and applies to charitable corporations as well as those “for profit,” and is not subject to the exception contained in section 80 of the act, Cahill’s St. ch. 32, jf 80, eliminating banking, insurance, building and loan and surety companies, and that every foreign corporation doing business in this State must, before it can bring suit in this State, secure a license from the secretary of State, under sections 81 and 82 of the act, Cahill’s St. ch. 32, 81, 82. We cannot agree with appellee’s contention in this respect. We include charitable corporations in appellee’s contention as the plea does not aver that appellant corporation is organized “for profit,” without which it would not be subject to the provisions of section 80' of the act cited which provides that: “Each foreign corporation organized for pecuniary profit (except banking, insurance, building and loan and surety companies), not now licensed to do business in this State, shall, before it transacts any business or maintains an office in this State, procure a certificate of authority therefor from the secretary of State. ’ ’

It is well understood that the exceptions in section 80, Cahill’s St. ch. 32, ¶ 80, of .the revision, and in the former acts, were inserted for the reason that the exclusive control of permits to .engage in banking is in the State auditor, under the Banking Act, Cahill’s St. ch. 16a. The exclusive control of permits to engage in insurance business, building and loan and surety companies is in departments of State other than the secretary of State, and if appellant is engaged in doing business in Illinois as a guaranty company, as its name implies, it would have no occasion to secure a permit from the secretary of State of this State, as set out in the plea.

Sections 80 to 94, of the revision of the Corporation Act, Cahill’s St. eh. 32, ¶¶ 80-94, cover substantially the provisions of the act to regulate the admission of foreign corporations for profit to do business in the State, approved May 18, 1905, of which section one is as follows:

“Section 1. That before any foreign corporation for profit shall be permitted or allowed to transact any business or exercise any of its corporate powers in the State of Illinois, other than insurance companies, building and loan companies and surety • companies, they sfiall be required to comply with the provisions of this act and shall be subject to all of the regulations * * * , limitations and restrictions applying to corporations of like character organized under the laws of this State.”

Section 6 of the act is as follows: “§ 6. Every foreign corporation amenable to the provisions of this act, which shall neglect or fail to comply with any of the provisions of the same as herein provided, shall be subject to a penalty of not less than one thousand dollars ($1,000) nor exceeding ten thousand dollars ($10,000), to be recovered before any court of competent jurisdiction, and it is hereby made the duty of the Secretary of State, as he may be advised, or may ascertain that any corporation is doing business in contravention of this act, to report such fact to the Attorney General of this State, and it shall be his duty and the duty of the State’s attorney of the proper county to bring such actions at law as shall be necessary for the recovery of the penalties imposed hereby, and in addition to such penalty, if after this act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity upon-any claim, legal or equitable, whether arising out of contract or tort in any court in this State.”

In the construction of the provisions of that act it was very properly held that the penalties provided in section 6 applied only to foreign corporations required by section one of the act to obtain a license before doing business in Illinois, and that the party relying upon section 6 must negative the exceptions in section one of the act. (Leman v. United States Fidelity and Guaranty Co. of Maryland, 137 Ill. App. 262; Delta Bag Co. v. Kearns, 160 Ill. App. 93; same case 173 Ill. App. 570; Museum of Fine Arts v. Dicus, 207 Ill. App. 389; Journal Co. of Troy v. F. A. L. Motor Co., 181 Ill. App. 533; March-Davis Cycle Mfg. Co. v. Strobridge Lithographing Co., 79 Ill. App. 687.)

The words “amenable to the provisions of this Act,” contained in said section 6, of course rendered this construction mandatory. Those words are omitted from section 94 of the revision of 1919 and it is contended, therefore, that section 94 applies to. all corporations. To effect this construction, it becomes necessary to hold that either the revision of the Corporation Act in 1919 impliedly repealed certain provisions of the Insurance Act, certain provisions of the Foreign Building and Loan Association Act, Cahill’s St. ch. 32, ¶ 375 et seq. and other acts, or that it was the purpose of the legislature in rewriting said section 94 to place certain foreign corporations, including appellant, under two separate, independent and executive departments of government for regulation, and from each of which such corporations and appellant must secure a permit to do business, before any suit can be brought in Illinois. This would be placing restrictions and burdens upon foreign corporations not shared by domestic, and denying to the citizens of the several States privileges and immunities granted to the citizens of this State. Other sections of the Corporation Act, 80 to 94 inclusive, intended to regulate corporations other than banking, insurance, building and loan and surety companies, based upon said section 80, when applied to banking, insurance, building and loan and surety companies, lead to absurd results, as pointed out, and under section 90, a foreign insurance company, upon paying fees due and filing its proper affidavit, may, by surrendering its license to and filing its affidavit, with the secretary of State, withdraw from the State.

It has been held in People v. Bradford, 267 Ill. 491 : “A statute is not to be construed as so many isolated words, phrases, clauses or sentences but is to be construed as a whole, having reference to the connection in which the words are used and the intention of the legislature as disclosed from a consideration of the act as a whole and in all its parts. It is the, intention of the law-maker that makes the law. (Hoyne v. Danisch, 264 Ill. 467.) It is an elementary rule that-in ascertaining this contention all parts of a statute must be considered together, and not each part, phrase, clause, sentence or section by itself. (36 Cyc. 1131; Krome v. Halbert, 263 Ill. 172; Hoyne v. Danisch, supra.) ’ ’

Commenting further in that case the court say: “Such provisions are wholly irreconcilable with the idea that the right to such salary is also to depend upon the number of hours of service and to be calculated upon a per diem basis.”

“The intention of the law-makers is the law, and this intention should be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted, according to their real intent.” People v. Giles, 268 Ill. 409.

‘ ‘ The courts are bound to presume that absurd consequences leading to great injustice were not contemplated by the legislature, and a construction should be adopted that it may be reasonable to presume was contemplated.” Uphoff v. Industrial Board of Illinois, 271 Ill. 316, and cases there cited. Village of Glencoe v. Hurford, 317 Ill. 220.

The judicial construction given by the courts to the Foreign Corporation Act of 1905, and the terms of those statutes, having acquired a settled meaning, and the exceptions in section 80 of the Revised Act, being the same terms contained in the former act, becomes a” part of the new law, unless by qualifying or explanatory addition a contrary intention of the legislature is made clear. It is presumed that the legislature in passing the later law knew the judicial construction which had been given to the words of the prior enactment. (Village of Glencoe v. Hurford, supra; People v. Barnett, 319 Ill. 408; People v. Day, 321 Ill. 555.) In the opinion of this court section 94 of the Revised Corporation Act of 1919 had reference only to the corporations referred to in section 80 of the act, and the words “amenable to the provisions of this Act,” contained in section 6 of the Act of 1905, were omitted from section 94 of the Revised Act, so that the ambiguous and absurd results of applying the inhibition of the courts to all corporations, covered by the entire Revised Corporation Act, would be avoided. The plea in question does not charge that appellant is an organized corporation for pecuniary profit, or that it is doing business in the State of Illinois under its charter powers, and for anything that appears in the plea appellant may have had power, under an act entitled “An Act to Enable Corporations in Other States and Countries to Lend Money in Illinois, to Enforce their Securities and to Acquire Real Estate as Security,” approved May 24, 1897, to bring this suit without any license or permit.

The court below erred in not sustaining appellant’s demurrer to the plea.

As to appellant’s fifth and ninth replications to the second plea of appellee, under the facts set out in the replications, the certificate in question was issued by appellee for Hamilton’s accommodation, and appellee paid the interest upon the certificate and presumably made a profit upon the instrument during a period of about eight years. Appellant paid cash for the instrument and never had any notice or information as to the contingent liability of appellee thereon, claimed in the plea, other than the claimed knowledge of Hamilton, president of appellant company, who gave his notes to appellee company and negotiated the instrument to appellant and secured $3,500 of appellant’s funds for his own use, benefit and accommodation. The instrument was made payable directly 'to appellant. Appellee accepted Hamilton’s individual notes for the instrument, issued conditionally, as appellee claims by its plea. Appellant paid cash for the instrument without notice of any defect in the issuing of the certificate, unless notice to Hamilton, president of appellant company using appellant’s funds for his own benefit, constitutes notice to appellant. Is appellant, under the replications, a holder for value in due course? The Negotiable Instruments Act, Cahill’s St. ch. 98, ¶¶46, 49, 72 and 213, provides:

“§26. Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time. ’ ’
“§ 29. An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party and in case a transfer after maturity was intended by the accommodating party notwithstanding such holder acquired title after maturity. ’ ’
“§ 52. A holder in due course is a holder who has taken the instrument under the following conditions:
“1. That the instrument is complete and regular upon its face.
“2. That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact.
“3. That he took it in good faith and for value.
“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
“§ 190. ‘Holder’ means the payee*or indorsee of a bill or note, who is in possession of it, or the bearer thereof.”

The payee of an instrument may be a holder in due course. (Many, Blanc & Co. v. Krueger, 153 Ill. App. 327.)

Notice to an officer of a corporation is not notice to the corporation in transactions where the officer is dealing with the corporation in his own interest and not in the interest of the corporation. (Metcalf v. Draper, 98 Ill. App. 399; Higgins v. Lansingh, 154 Ill. 388; Seaverns v. Presbyterian Hospital, 173 Ill. 420; United States Disposal & Recovery Co. v. Industrial Commission, 291 Ill. 485.)

In Higgins v. Lansingh, supra, the court held: “His interest is opposed to theirs, and the presumption is, not that he will communicate his knowledge of any secret infirmity of the title to the corporation, but that he will conceal it. Where an officer of a corporation is thus dealing with them in his own interest opposed to theirs, he must be held not to represent them in the transaction, so as to charge them with, the knowledge he may possess but which he has not communicated to them, and which they do not otherwise possess, of facts derogatory to the title he conveys. Commercial Bank v. Cunningham, 24 Pick. 270; Kennedy v. Green, 3 M. & K. 699; In re European Bank, L. R. 5 Ch. App. 358; In re Marseilles Extension Railway Co., L. R. 7 id. 161; Angell & Ames on Corp. 308; Winchester v. Baltimore and Susquehanna Railroad Co., 4 Md. 231.”

We are of the opinion that the allegations in the replications, if established, constitute appellant- a holder in due course of the instrument and fully answer appellee’s plea, and that the court erred in sustaining the demurrers to appellant’s replications.

For the errors of the circuit court of Vermilion county in overruling appellant’s demurrer to appellee’s amended first additional plea, and in sustaining appellee’s demurrer to the fifth and ninth replications to appellee’s second plea, the judgment of said court is reversed and the cause remanded to said court, with directions to proceed in conformity with the views expressed in this opinion.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    The People of the State of Illinois for the use of George W. Stubblefield, Appellant, v. Albert Wochner et al., Appellees.
    Gen. No. 8,042.
    1. Sheriffs and constables- — nature of bond. A sheriff is bound by law to perform his official duties whether or not his official bond is given, with the result that his official bond is merely ’ collateral.
    2. Sheriffs and constables — limitation of actions on bond. In an action upon a sheriff’s bond, the gist thereof is not the bond but the officer’s wrongful act and upon that being barred by the 5-Tear Statute of Limitations, Cahill’s St. eh. 83, If 16, no action can be had upon the bond.
    3. Sheriffs and constables — when action on bond barred. One who waits nine years before attempting to litigate, in an action upon a sheriff’s official bond, the commission of an assault, and claims his action is ruled by the 10-year limitation on bonds of Cahill’s St. eh. 83, If 17, contravenes the spirit and purpose of the statute of limitations intended to prevent delay and fraud, and his action will be held barred under the 5-year provision of Cahill’s St. eh. 83, If 16, which bars action on the sheriff’s seizure of a note from the person.

      Appeal by plaintiff from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    W. H. Kerrick and Schneider & Schneider, for appellant.
    Sig. Livingston and John M. Sullivan, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellees (defendants below) were sureties on the bond of George E. Flesher, a sheriff of McLean county. The declaration was filed April 2, 1926, and contains two counts. The allegations are substantially the same in both counts, wherein they allege: “That the said George E. Flesher, on, to wit, the 10th day of January, 1917, did, in his official capacity, without authority of law, seize and take from the person of the said George W. Stubblefield one promissory note * * * and did, without authority of law, surrender said note into the possession of the circuit court in and to the county of McLean and State of Illinois.”

Appellees were sureties upon Flesher’s bond executed November 20, 1914, the condition of which was that if the above bounden George E. Flesher shall perform all the duties reqiured or to be required by law of him as sheriff of said McLean county, then this obligation to be void, otherwise to remain in full force and effect.

The defendants filed two special pleas, the 2-Year Statute of Limitations and the 5-Year Statute of Limitations. Plaintiff demurred to each plea. The demurrer was sustained as to the first plea and overruled as to the second. Plaintiff elected to stand by his demurrer and judgment was entered against him for costs and this appeal is from that judgment.

It is the contention of appellees that an action against the sheriff, being barred in five years after the commission of the act complained of, the action is also barred against the sureties after the lapse of five years from the date of the breach.

Appellant contends that the 5-Year Statute of Limitations does not apply, and as the action was brought within 10 years after the breach charged, the demurrer should have been sustained, as the action is based upon a written instrument and is governed by Cahill’s St. ch. 83, 18, and appellant cites Stelle v. Lovejoy, 125 Ill. 352, 358; Frank v. People, 147 Ill. 105, 112, and Nevitt v. Woodburn, 160 Ill. 203, 209, in support of its contention.

In Stelle v. Lovejoy, supra, the bond contained an absolute covenant to pay a fixed sum of money — a judgment — upon the dismissal of an appeal, and counsel sought to argue that the bond constituted a collateral security, as a mortgage, where the debt is regarded as the principal and the mortgage as a mere incident; but the court pointed out that mortgages rarely contained a covenant to pay the mortgage debt and the effect of such a covenant in the mortgage, and said:

“The principle of that case finds appropriate application to the facts of the case being considered, and would seem to control. It might be conceded, an action on the judgment in the justice’s court would be barred in a shorter period; but that fact 'could not affect the remedy on the covenant’ in the bond in suit, which contains an absolute obligation that the principal shall pay the judgment, with the costs. It seems to follow, upon principle as well as from authority, that an action on the obligation of defendant Lovejoy to pay the judgment in the justice’s court, against his principal, created, as it was, by a sealed instrument, would not be barred by any period short of that stated in the 16th section of the Limitation act, (which is ten years,) and hence the pleas of five years pleaded constitute no bar to the action.”

In Frank v. People, supra, the action was based upon an administrator’s bond and the court cites the sections of the statute relating to such bonds, into which, by statute, the covenant to pay has been written. “ ‘If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court lawfully made, 0 within thirty days after demand made, ’ etc., the court, upon application, may attach and imprison him, to compel compliance with the order; ‘and, moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken, in law, to amount to a devastavit, and an action upon such executor’s or administrator’s bond, against his sureties, may be forthwith instituted and maintained, and a failure aforesaid to pay such moneys or dividend shall be a sufficient breach to authorize a recovery thereon. ’ ”

In the same case, the court, citing and quoting from Ralston v. Wood, 15 Ill. 159, states: “The suit upon the bond is a collateral action, founded as well upon that judgment as upon the bond itself, and when the judgment is offered in evidence like any other judgment of a court of competent jurisdiction, it cannot be inquired into by those affected by it, except for fraud. ’ ’

In Nevitt v. Woodburn, supra, the action was based upon an administrator’s bond where the rights of the parties had been determined by a decree of the circuit court. In that case the court cited Irwin v. Backus, 25 Cal. 214, and quoted: “ ‘As a general rule, sureties upon official bonds are not concluded by a decree or judgment against their principal, unless they have had their day in court or an opportunity to be heard in their defense; but administration bonds seem to form an exception to this general rule, and the sureties thereon, in respect of their liability for the default of the principal, seem to be classed with such sureties as covenant that their principal shall do a particular act.’ ”

In all of the cases cited by appellant the bonds sued upon contained specific covenants, or were bonds into which the statute had injected specific covenants and are not applicable to the bond in this case. The Supreme Court does not seem to have passed upon the identical question reaised here. In one form it was before this court in People v. Johnson, 227 Ill. App. 36, upon a sheriff’s bond, and the Statute of Limitations was raised in the last case, upon which the court held:

“The other contention of plaintiff is that while the right of property levied upon was in litigation, the statute of limitations did not commence to run. The rule of law sought to be applied has no application to this case. This is not a suit on a forthcoming bond or suit by a defendant in attachment upon an attachment bond, but is a suit upon the sheriff’s official bond. If plaintiff had a cause of action against him it accrued to her January 15, 1908, and the statute of limitations began to run against her on that date. The rule is that when the statute begins to run it will continue to run until it becomes a bar, unless there is some saving or qualification in the statute itself. United States Fidelity & Guaranty Co. v. Dickason, 277 Ill. 77.” But the record does not show whether the suit was barred by the 5-year or 10,-year statute.

It is contended by appellees that if the action were against the sheriff alone to recover damages for the taking of the note, the 5-year statute would bar the action. Carr v. Barnett, 21 Ill. App. 137; Pennsylvania Co. v. Chicago, M. & St. P. Ry. Co., 144 Ill. 197. As far as the officer himself is concerned, his official bond does not extend the obligation imposed on him by law and he is obligated faithfully to perform his official duties just as effectually without signing any bond, unless by force of constitutional or legislative provision. Since the officer is already bound by law to perforin the duties pertaining to his office, the bond is in effect merely a collateral to his official duties. 22 R. C. L. 497; Walton v. United States, 9 Wheat. (U. S.) 651; People v. Putnam, 52 Col. 517, 122 Pac. 796.

Numerous cases are cited by appellee as to the law in other States upon this question, and it is held: In actions against public officers on their official bonds it has been said that, “While it is true this is an action against a bond, it is not an action on a written contract, as the basis of the action is the wrongful and illegal act of the principal upon which the liability of the surety is dependent. ’ ’ Hillyard ex rel. Tanner v. Carabin, 96 Wash. 366, 165 Pac. 381; Board of Com’rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 Pac. 299.

The gist of the action is not the bond but the wrong • ful act of the officer. The bond is more in the nature of a collateral security and the cause of action is the misfeasance or malfeasance of the officer. State v. Conway, 18 Ohio St. 235; State v. Blake, 2 Ohio St. 147.

“The bond does not give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffered by reason of such wrongs or delicts; * * * When the principal debt or cause of action fails, the security must also fail; and, as we have stated before, .a sheriff’s bond is simply a security, collateral to the main cause of action.” Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; People v. Putnam, 52 Col. 517, 122 Pac. 796; Spokane County v. Prescott, 19 Wash. 418, 53 Pac. 661.

A sheriff’s or constable’s bond is simply collateral security for the performance of the officer’s duties and when suit is barred for a breach of his duty action is also barred on his bond. Phillips v. Hail (Tex. Civ. App.), 118 S. W. 190; Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; Paige v. Carroll, 61 Cal. 211; Sonoma County v. Hall, 129 Cal. 659, 62 Pac. 257.

Whenever a cause of action is barred by any statute of limitations, the right to maintain a cause of action, therefor, upon a bond which simply operates as a security for the same thing, must necessarily cease to exist. Ryus v. Gruble, supra.

So far as actions of this character are concerned, the limitation acts upon the cause, not the form of the action. Chipman v. Morrill & Webster, 20 Cal. 130, 137; Spokane County v. Prescott, 19 Wash. 418, 53 Pac. 661, 67 Am. St. Rep. 733. If no cause of action exists against a principal there can be none against the surety. Leeds Lumber Co. v. Haworth, 98 Iowa 463, 67 N. W. 383, 60 Am. St. Rep. 199, 207 (note).

In Ryus v. Gruble, supra, the court held:

“The wrongs charged'in the plaintiff’s petition as the foundation for its present action, are a trespass upon real property, and the taking, detaining and selling of personal property. * # * ' The plaintiff, however, says that this is an action upon a sheriff’s bond, and that an action on a sheriff’s bond is not barred until five years have elapsed. * * * The bond does not give the cause of action; the wrong or delicts do; and the bond simply furnishes" security to indemnify the persons who suffered by reason of such wrongs or delicts; * * * Whenever a cause of action is barred by any .statute of limitations, the right to maintain an action therefor upon a bond which simply operates as a security for the same thing, must necessarily cease to exist. When the principal debt or cause of action fails, then security must also fail; and, as we have stated before, a sheriff’s bond is simply a security, collateral to the main cause of action.”

In State v. Conway, supra, the court held: “The actual cause of action is not the execution of the bond-; that is more in the nature of a collateral security, but the cause of action is the misfeasance and false return. Without proof of the false return there could be no recovery. The action is, in effect, but not so in form, an action against an officer for misfeasance in office. So far as actions of this character are concerned the limitation acts upon the cause not the form of the action, and the effect of the statute cannot be evaded by any change in the form of the action.”

We find nothing in statute or in principle contravening the soundness of the rule established in the other States. Statutes of limitations are statutes of repose and are intended, after a reasonable time, to put at rest differences and difficulties, the facts in regard to which rest upon the frail memory of man. In this case, after nine years appellant seeks to litigate the commission of a tort, an assault, the only evidence of which must be the oral testimony of the actors and witnesses now living. This does contravene the spirit and purpose of the statute of limitations and invites litigants to delay and fraud. On the other hand, whenever bonds contain an express covenant to pay a specific debt or amount, either contained in the bond or determinable by other records or writings, the rule of limitations comes naturally under the 10-year statute.

We are satisfied that the circuit court of McLean county ruled correctly in overruling the demurrer to the second plea and the judgment of that court is affirmed.

Affirmed,


text:
    The Millikin National Bank of Decatur, Appellant, v. Harvey S. Gebhart, Appellee.
    Gen. No. 8,046.
    1. Pleading — when special demurrer necessary. The question as to whether matters set up in a special plea in assumpsit could have been shown under the plea of nonassumpsit must be raised by special demurrer.
    2. Guaranty — when plea setting up release defective. A special plea setting up a release of defendant on a guaranty held too general and indefinite in character to require a reply from plaintiff.
    3. Appeal and error — when judgment not final in form. A judgment on a special plea to a declaration in assumpsit which does not determine all the issues of law and fact pending, or state that plaintiff shall take nothing or defendant shall go hence without day, or show exactly what was determined without reference to a special plea, is not such a final judgment as to permit plaintiff to appeal therefrom.
    Appeal by plaintiff from the Circuit Court of Macon county; the Hon. Franklin H. Boggs, Judge, presiding.
    Heard in this court at the October term, 1926.
    Appeal dismissed.
    Opinion filed February 28, 1927.
    Rehearing denied and opinion modified and refiled April 12, 1927.
    Mills Bros. & Armstrong, for appellant.
    Le Forgee, Black & Samuels, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action of assumpsit by appellant bank against appellee. By its declaration, appellant averred that on January 23, 1919, appellee and eight other persons, including one Julius L. Burtschi, made and delivered to appellant an unsealed contract of guaranty as follows:

“In Consideration of the sum of one dollar to each of the undersigned paid, the receipt of which is hereby acknowledged, and the further consideration that the
Millikin National Bank of Decatur, Illinois,
has given or will give accommodations to the Pan American Motors Corporation of Decatur, Illinois, we for ourselves, and for our heirs, executors, administrators and assigns, jointly and severally, hereby guarantee and promise to pay or cause to be paid to the said Bank or its assigns, on demand, as the same become due, all and every such sums of money (together with seven per cent interest thereon from the time of the advancement of the same) as have already been or hereafter shall or may be paid or advanced by said Bank to said Pan American Motors Corporation by reason of loans, discounts, overdrafts, accepting or paying drafts, checks, bills or promissory notes, of said Pan American Motors Corporation, or by its discounting for them any bills of exchange or promissory notes, or by affording to them any other pecuniary assistance. Our liability hereunder is limited to the sum of Forty Thousand Dollars.
“Additional credits shall not be given on the faith hereof after we, or either of us, shall have given written notice to such Bank not to do so; but our liability hereunder shall continue until all indebtedness existing at the time of giving said notice, or any extension thereof, is fully paid.
“The taking of other securities or endorsements shall is no way affect our liability hereunder. Notice from the Millikin National Bank of the acceptance of this guarantee is hereby expressly waived.
“Dated at Decatur, Illinois, this 23rd day of January, A. D. 1919.”

That appellant received such instrument and relied upon the guaranties and promises therein contained; that, so relying, January 27, 1919, it paid and advanced to said Pan American Motors Corporation by reason of loans, the sum of $35,000; that, to evidence such indebtedness, said Pan American Motors Corporation gave appellant its two notes, dated January 27, 1919, for $15,000 and $20,000, due 90 days and 4 months after date, respectively; that such notes were renewed from time to time (the various renewals being set out specifically), until they resulted in two notes, one dated December 12, 1919, for $15,000, due . on demand,, and the other dated May 27, 1920, for $20,000, likewise.due, on demand; that the moneys so paid and advanced to Pan. American. Motors Corporation had not. been repaid in full; that there was due April 6,.1925, on account thereof, $31,512.18; that it then and there demanded of appellee the amount so due, and that appellee had not paid, ,

A general and special demurrer to the declaration was filed, and overruled and appellee thereafter filed a plea of nonassumpsit and 19 special pleas, by one of which, the seventeenth special plea, appellee averred:.

“And for a further plea in this behalf the defendant says that the plaintiff ought not to. have its aforesaid action against him, because he says that after the signing and delivering of the. said instrument of guaranty in plaintiff’s declaration set forth, to-wit: upon the 6th day of May, 1919, the plaintiff, by one of its officers, then and there promised one Julius L. Burtschi-, one of the signers of said instrument of guaranty, that he should be released from his obligations and promises in said written guaranty in plaintiff’s declaration set forth, and. that plaintiff would ■ obtain another instrument of guaranty of like tenor" and effect, and that the said Julius L. Burtschi would not be required to sign the same, and the defendant avers that the plaintiff did then and there release the said Julius L. Burtschi from his promises and obligations in said' guaranty mentioned, and did thereafter obtain another written- guaranty of like tenor and effect and that said other instrument of guaranty was not signed by the said Julius L. Burtschi. By reason whereof this defendant has been and is discharged in law from any liability to the plaintiff on account of said instrument of guaranty in its declaration mentioned, and this the defendant is ready to verify. Wherefore, it prays judgment, etc.”

To this plea appellant filed its general and special demurrer, charging that the plea averred conclusions instead of facts; that it failed to aver whether there was any consideration, or what consideration, if any, for the pretended release to Burtschi; that it failed to aver whether such pretended release was by parol or in writing, whether or not it was under seal, and if in writing, that it failed -to set forth the same either in substance or in haec verba; and that it was otherwise uncertain, informal and insufficient. This demurrer was overruled by the court and appellant electing to abide by its demurrer, the court entered judgment for defendant against the appellant on the plea in bar of the action- as to the seventeenth plea and for costs. At the time this judgment was entered, issues had been made up on. the plea of nonassumpsit and on other pleas. From this purported judgment appellant has appealed to this court and the record is before us for review.

Appellee uses considerable space to support the judgment in-contending that all of the matters set out in the plea could have been shown under the plea of nonassumpsit and, therefore, appellant was not injured and the issue before, this court is a moot question. It is true that appellant did not demur specially to the plea on the ground that- the matters could have been shown, under the plea of nonassumpsit, without which the question could not have been raised. Wadhams v. Swan, 109 Ill. 46.

It is further contended by appellee in support of the judgment and the plea that “the contract in question might have been discharged, by performance, by operation of law, by abandonment, by waiver, by breach of its terms, by another contract substituting the original and by a number of other means, and that, although a contract may not be terminated, it may be that it is not enforceable because of a waiver or estoppel arising from the conduct and action of the parties concerned,” and suggesting that the matters set up in the plea are sufficient to effect a waiver or release of appellee from the liability of the guaranty. It becomes pertinent to analyze the averments as stated in the plea. The plea charges:

First, that plaintiff, appellant, by one of its officers promised Burtschi that he should be released;

Second, that the plaintiff would obtain another instrument of guaranty of like tenor and effect, and that Burtschi would not be required to sign the same;

Third, And the defendant avers that the plaintiff did then and there release the said Burtschi from his promises and obligations in said guaranty; and

Fourth, (Plaintiff) did thereafter obtain another written guaranty of like tenor and effect, and that said other instrument of guaranty was not signed by the said Burtschi, by reason whereof this defendant has been and is discharged in law, etc.

The first and second allegations made by an officer of the bank amount to no more than expression of opinion; in the first, as to what ought to be done; and in the second, as to what the bank would do in the future. The fourth allegation is that after appellee had been discharged appellant did procure another written guaranty of like tenor and effect, not signed by Burtschi, which could have no bearing of any kind upon Burtschi’s release. The entire plea is based upon the third statement or conclusion, that plaintiff, did then and there release the said Burtschi. The statement is that the corporation bank released.

What was said in Beardsley v. Smith, 139 Ill. 294; Cairo & V. R. R. Co. v. Dodge, 72 Ill. 255, and People v. Sleight, 302 Ill. 47, would seem to indicate that the plea at bar was too uncertain and general to require appellant to reply to the same.

Upon further consideration of the entire record, it is the opinion of a majority of this court, upon its own motion, that the record shows a judgment, defective in form. The record recites the filing by appellee of the fifteenth, seventeenth and nineteenth special pleas, by leave of court, appellant’s demurrer to the same, and recites: ‘ ‘ The court being well and sufficiently advised in the premises sustains the demurrer to the fifteenth and ninteenth special pleas and overrules said demurrer as to the seventeenth special plea. Therefore, it is ordered by the court that judgment be entered herein against plaintiff in bar of action, as to the seventeenth special plea and for costs.”

At the time of this entry there were other issues of law and fact pending in said cause of which no disposition had been made. The form of this judgment does not pretend to have determined all of the issues in this case or to bar appellant’s action, except as to the seventeenth special plea. It is held in Freeman on Judgments (2nd ed.) section 20: “Sometimes several issues of law and fact are presented for the consideration of the court in the same suit or proceeding. In such case there can be no judgment from which an appeal may be taken until all the issues are determined. For although the determination of an issue of law is a trial, and the decision rendered thereon is not an order within the definition of the code of New York but a judgment, still it is not until the final judgment is entered that an appeal will lie.” In 33 C. J. 1190, it is held that: ‘ ‘ The entry must show that the issues be • tween the parties have been adjudicated, and show with certainty the matters determined. ” It is further held: “Each judgment entered during a term must be of itself full and in proper form, and the imperfections of one cannot be corrected by reference to another. A judgment must contain sufficient facts, to enable the clerk to issue an execution thereon, by , an inspection of its' entry, without reference to .other entries.”

The .entry in question does not say that plaintiff shall take nothing by its. suit or that defendant shall go hence, without day; nor is .any language used in substance to that effect. (People v. Severson, 113 Ill. App. 498; Wilkinson ,v. Olin, 136 Ill. App. 530.)

In People v. Severson, supra, the court said: “The entry in this case recites an election by the plaintiff to stand by the declaration, but such election only authorized the court to enter a final judgment and cannot be held to have the effect or take the place of such judgment. The entry also contains a judgment against the plaintiff for costs, but this does not show that the judgment was a final judgment. In Lee v. Yanaway, 52 Ill. App. 23-25, Mr. Justice Boggs said: ‘That a judgment is final, is not to be determined inferentially from the mere fact that costs and execution thereof are adjudged against one of the parties. The costs aré regulated by statute and follow as an incident to final judgment, but the character of a judgment, whether final or interlocutory, is to' be determined from other considerations than that it awarded costs. It must, to be final, terminate and completely dispose of the action.’ The judgment entry in,the record before us does not dismiss the defendant without day; doés not adjudge that the plaintiffs take nothing by their writ or their suit; does not dismiss or put an end to the suit, and must be held to be an interlocutory, and, not a final .judgment.”

In People v. Jamison, 157 Ill. App. 553, the court said: “After the demurrer had been overruled as to the first breach assigned in the amended declaration and sustained as to the second and third breach assigned therein, and the plaintiff had dismissed the cause as to the first breach and elected to abide by the second and third breaches, the record proceeds as follows : ‘Therefore it is considered by the court that the defendants demurring go hence without day and judgment is hereby rendered in their favor on said demurrer. ’ This was a judgment for part and not for all of the defendants in the case. There is nothing in the record written by the clerk which shows which defendants demurred and which did not. If all the defendants had demurred then a judgment that the defendants go hence without day would have been valid because that would mean all the defendants, and the title of the case written by the clerk preceding the orders of each day would show who the defendants were. It appears from the order that it is only a part of the defendants who go hence without day. It is necessary that the defendants should be named, for a record must always show in whose favor a judgment is rendered. The name of the parties for whom and against whom the judgment is rendered must be ascertainable from the record of the court written by the clerk. ’ ’

The court further said: “It is true that by looking at the demurrer on file it can be ascertained who the demurring defendants were, but that is not sufficient. The record which the law authorizes the clerk to write must somewhere show in whose favor the judgment was rendered. The demurrer may be lost from the files, and if that should happen it would require oral proof to determine in whose favor this judgment is rendered, and which of the defendants were not released thereby. It is obvious that the judgment of the court cannot be permitted to rest upon parol evidence as to the names of the parties in whose favor the judgment is rendered.”

“The rule that a judgment must be specific and definite and if it lacks these elements it is void is variously stated and applied in the following authorities: Martin v. Barnhardt, 39 Ill. 9; Faulk v. Kellums, 54 Ill. 188; Meyer v. Village of Teutopolis, 131 Ill. 552; Metzger v. Morley, 184 Ill. 81; Alton Lime & Cement Co. v. Calvey, 41 Ill. App. 597; Fitzsimmons v. Munch, 74 Ill. App. 259; Metzger v. Morley, 83 Ill. App. 113; Cotes v. Bennett, 84 Ill. App. 33, and 183 Ill. 82; Dickinson v. Rahn, 98 Ill. App. 245; 1 Black on Judgments, sec. 116.”

In the case at bar the order entered without doubt was a sufficient memorandum from which a judgment could have been made up, but it required a reference to the seventeenth special plea to determine whether the facts alleged in the plea were sufficient to bar the entire action or only a portion of appellant’s claim, and while there can be no criticism on the use of the term “bar action” in lieu of the technical phrases used in the entry of judgment, the order in question does not pretend to bar appellant’s suit or action, as a whole, but only as to the seventeenth special plea, and it is therefore a question of very grave doubt whether the judgment is a final judgment.

In view of the situation the purported judgment of the circuit court is held to be not a final judgment and appellant’s appeal is dismissed.

Appeal dismissed.


author: Mr. Justice Jett

text:
    George Corelis, Administrator of the Estate of Ellen Corelis, Deceased, Appellee, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Gen. No. 7,646.
    1. Appeal and error — failure to object to evidence when offered as precluding objection thereto on appeal. The offer in evidence of a city ordinance regulating railway train speed, although based upon a statute repealed by Cahill’s St. eh. 111a, but expressly not objected to by defendant railroad on the trial against it for negligently causing a child’s death, cannot be objected to by defendant on its appeal.
    2. Harmless and prejudicial error — instruction in language of statute stating abstract proposition of law. An instruction given in words of the statute, although failing to tell the jury that the presumption of negligence stated as arising from certain acts could be rebutted, is not so misleading as to constitute reversible error.
    3. Instructions — cure of error by other instructions. Any error in an instruction that certain acts are presumed negligent, without in the same instruction stating that such presumption may be rebutted, is cured by the defendant obtaining from the court instructions clearly stating that said presumption is not conclusive.
    4. Parent and child — when mother not guilty of negligence contributing to death of child run, over by train,. A mother who left her child alone for 15 minutes on the second floor of a house which was surrounded by an iron fence, and who had often told the child not to go upon the railway track which the child had never before done, was not guilty of contributory negligence in the death of the child through being run over by defendant’s railway train.
    5. Bailroads — when contributory negligence of parents of child hilled by train question for jury. Instructions, presented by defendant itself, that the jury should determine whether the parents of a child whom they claimed to have been negligently killed by defendant’s train were guilty of contributory negligence, make such contributory negligence a fact question for the jury.
    6. Trial — sufficiency of foundation for testimony as to speed of train as question for court. The court has the duty in the first instance to determine whether the foundation is properly laid for a witness to testify on the speed rate of a train alleged to have been negligently excessive at the time it killed plaintiff’s intestate.

      Appeal by defendant from the City Court of Moline; the Hon. G. O. Dietz, Judge, presiding.
    Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed March 22, 1927.
    Walker, Sweeney & McNamara and Russell B. James, for appellant; J. A. Connell and J. C. James, of counsel.
    Benjamin S. Bell and Edward L. Eagle, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was instituted by George Corelis, administrator of the estate of Ellen Corelis, deceased, appellee, against the Chicago, Burlington and Quincy Railroad Company, appellant, to recover damages alleged to have been sustained by the next of kin of Ellen Corelis, deceased, on account of her death by the negligence of appellant company.

A jury trial was had and a finding in favor of appellee for the sum of $3,750 on which a judgment was rendered and this appeal by appellant followed.

The deceased, Ellen Corelis, was a child six years of age. She resided with George Corelis and Chrisoula Corelis, her parents, together with her brothers’ and sisters in a 2-story frame building about a block from the tracks of the appellant, in Moline, Illinois. The building.in question was occupied by two families. The deceased and her family lived upstairs in said building. The downstairs was occupied by Evageilo Corelis, a widow with six children. The widow above-mentioned is a sister-in-law of George Corelis, the father of the deceased child.

The death of Ellen Corelis was occasioned on the morning of the sixteenth of May, 1924, when she was struck and killed by a westbound passenger train of the Chicago, Burlington and Quincy Railroad Company, consisting of a locomotive and three cars, at about 11 o’clock in the morning, at the intersection of Second Street in the city of Moline with the, railroad tracks. The street and railroad tracks form right angles and cross at the grade.

On the day that the child met its death, her father George Corelis, a laborer, was working in a factory about one-half block distant from his home. On the morning in question, the mother was at home performing her household duties and taking care of the three younger children, namely, Ellen, the deceased, John, aged three, and the baby, aged seven months. The two elder children, Catherine and Beulah, were at school. At about 10: 30 on said morning the mother went to a grocery store for supplies for the family and left the three children, Ellen, John and Annie, at home upstairs. The 3-year-old boy was playing on the floor, the baby was asleep and Ellen was watching them. The mother told the children to stay in the house. The grocery store to which the mother went was located about four doors west of her home. She was gone about 15 minutes and on her return she was told that Ellen had been run down. It appears that Ellen went out of the house and north on Second Street to the railroad tracks where some men were working with a hand car. She watched them some little time and then went on the tracks. A train coming from the east consisting of an engine and three cars approached the crossing. She was on the south side of the track and started to run north, and was struck by the engine and killed.

The declaration of appellee consists of four counts. The first count charges general negligence; the second, failure to ring a bell or blow a whistle as required by statute; the third, the violation of a city ordinance of Moline regulating the speed of passenger trains; the fourth count charges the negligent operation of the gates. In the third count, it is charged that there was in full force and effect in the city of Moline, on the day that the plaintiff’s intestate lost her life, a certain valid ordinance of said city of Moline pertaining to the operation of trains by railroads in the said city of Moline. Section 1 of the said ordinance was and is in the words and figures, to wit:

“Sec. 1. — BATE OF SPEED — Be it ordained by the City Council of the City of Moline, that no railroad corporation by itself or agents, shall run any passenger train within the limits of said city, at a greater rate of speed than Ten (10) miles per hour, nor any other train, locomotive, engine or car, at a greater rate than Six .(6) miles per hour.”

No demurrer was filed to the declaration. The defendant pleaded the general issue and the trial resulted as above stated.

A number of errors are assigned for reversal of the judgment. The first error argued by the appellant is that the court erred in giving to the jury, on the part of appellee, Instruction 2, which reads as follows:

“You are instructed that whenever any railroad corporation shall by itself or agents, run any train, locomotive engine or car, at a greater rate of speed in or through the incorporated limits of any city, town or village, than is permitted by any ordinance of such city, town or village, and an injury has been done to persons or property in consequence of running such train in excess of the speed provided by such ordinance, that then such injury shall be presumed to have been done by the negligence of said corporation or its agents.”

It is insisted that the instruction is erroneous because it fails to inform the jury that the presumption may be rebutted and that it omits the element of due care and caution on the part of the parents having the custody of the deceased; that it is an abstract proposition of law and that the statute upon which it was based was repealed by the Public Utilities Act, Cahill’s St. ch. 111a. The record discloses that appellee, in support of the third count of the declaration, offered in evidence an ordinance of the city of Moline regulating the speed of trains. When the ordinance was offered counsel for appellant expressly stated that they had no objection. In this condition the record, even though it be insisted that the statute upon which the instruction was based has been superseded by the Public Utilities Act, or by what is now known as the Commerce Commission Act, appellant, by making no objection to the ordinance and expressly stating that there was no objection, is in no position to urge the point that the statute has been repealed by the Utilities Act or the Commerce Commission Act. It is true that the instruction does not tell the jury that the presumption may be rebutted, and it is an abstract proposition of law, but the giving of this instruction has been held not to constitute reversible error.

In Chicago, B. & Q. Ry. Co. v. Haggerty, 67 Ill. 113, the same question was raised that is urged in the case before us for consideration. A like instruction was given and the same objection raised as is here. On page 117 the court said:

“The instruction is no doubt somewhat open to the objection made, that it might be understood by the jury that the presumption of negligence, where the killing of the animal took place under the circumstances stated, was conclusive, and not subject to be rebutted by proof of the actual facts to the contrary. Still, the instruction in this respect was given in the language of the statute, and we could hardly pronounce to be error the laying down the law in the words of the law itself.”

An instruction substantially the same as the one involved in this cause was sustained in Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, and at page 111 the court said:

“In Chicago, Burlington and Quincy Railway Co. v. Haggerty, 67 Ill. 113, this court had before it an instruction in substantially the same language as the one now under consideration, and while the instruction was criticised by this court it was pointed out that the instru'ction was in the language of the statute, and it was said: ‘We can hardly pronounce it to be error the laying down of the law in the words of the law itself.’. And again, in the case of Chicago and Eastern Illinois Railroad Co. v. Crose, supra (214 Ill. 602), the same instruction was again brought into consideration, and we held, on the authority of the Haggerty case and Illinois Central Railroad Co. v. Ashline, 171 Ill. 313, that the instruction was not so misleading as to constitute reversible error in view of the other instructions given in the case.”

In Chicago, B. & Q. Ry. Co. v. Haggerty, supra, the court uses the following language when discussing the instruction heretofore alluded to:.

“Had defendant’s counsel been apprehensive that the jury .might be misled by the instruction as to the character of the presumption, he might have asked, on his part, an explanatory instruction to the effect that the presumption was not a conclusive but only a prima facie one.”

The appellant met the objection interposed to the instruction complained of by offering, and the court giving, Instructions 9, 11 and 15, which are. as follows:

“9. The Court further instructs the jury that the burden of proof, is upon the plaintiff in this case to show not only negligence on the part of the defendant, but also that the parents or persons having care, of the deceased were not guilty of .negligence proximately contributing to the accident, and unless the plaintiff has so proven your verdict should be for the defendant. ”,
“.11, The Court further instructs the jury that the crossing of a railroad track where trains are likely to pass at any time is a place of danger and it is the duty of the parents or other persons having the care and custody of a child of tender years to exercise ordinary care and caution to prevent the child, being injured, and the burden is upon the plaintiff in this case to prove the exercise of such due care of the deceased; and unless you find from the evidence in this case that they did exercise such care and caution,.then the plaintiff cannot recover and your verdict should bé for the defendant.”
“15. The Court instructs the jury that the burden of proof in this case is on the plaintiff and he must show, or it must appear from the evidence not only that there was no negligence on the part of the defendant, but he must also show, or. it must appear from the evidence, that the parents or persons having care of the deceased exercised such care as ordinarily judicious and careful persons would exercise with reference to a child of the age of the deceased, and unless you find he has so proven he is not entitled to a verdict at your hands, and you should find the defendant not guilty.”

These instructions effectively stated to the jury that the plaintiff could not recover unless he showed not only negligence on the part of the defendant but also that the parents or persons having the care of the child were not guilty of negligence and clearly show that the presumption was not a conclusive one. ■

In reaching the conclusion that we have we are not unmindful of the rule announced in the Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402, and Village of Atwood v. Cincinnati, I. & W. R. Co., 316 Ill. 425, and the more recent case of the City of Witt v. Cleveland, C., C. & St. L. Ry. Co., 324 Ill. 494, holding that cities are now without power to enforce speed ordinances. It will be remembered that the speed ordinance was admitted in evidence without.objection and with the express statement by appellant that it had no objection. Evidence was offered by both appellee and appellant bearing upon the speed of the train that ran the child down. With such a record appellee was entitled to have an instruction based upon the case as laid in the third count. The law, necessarily, arises out of the facts. The facts as shown when this case went to the jury entitled app ellee to an instruction basing a right of recovery upon said third count. Furthermore, we are unable to find any objection urged in the court below that would authorize appellant to raise this question in this court. It does not need the citation of authority to support the rule that no questions can be relied upon in the Appellate Court that were not raised in the trial court.

It is next urged by the appellant that the appellee failed to prove due care and caution on the part of the parents for the safety of the deceased. The evidence further shows that in addition to the facts heretofore stated that there was an iron fence around the premises ; that the parents had repeatedly warned Ellen and the other children not to go into the streets or near the railroad tracks, and that the children had obeyed them prior to the incident in question.

In City of Chicago v. Major, 18 Ill. 349, at pages 360, 361, the court said: “A large majority of children living in cities depend upon the daily labor of both parents for subsistence, and these parents are unable to employ nurses who may keep a constant and vigilant eye momentarily upon their children; and we cannot hold, as a matter of law, that every time a child, four years of age, steps into the street unattended, the mother is guilty of such negligence as would authorize every reckless or careless driver to run over and trample it down with impunity, or as would authorize the city to expose traps and pit-falls in every corner of the streets, in which a child may be drowned or maimed. Such a rule of law ought to depopulate a city of all its laboring inhabitants. In this, as in all other cases, it must be left to the jury to determine whether the parents of the child have been guilty of negligence in suffering the child to be in the streets. ’ ’

O’Connell v. Yellow Cab Co., 222 Ill. App. 118, was a suit brought to recover for the death of a child six years and five months old, that was run down on a public street in Chicago. The evidence, among other things, disclosed that at the time the child was run over by a taxicab the father was a locomotive engineer and was at work away from home. The mother was at home and had seen her son playing downstairs about ten minutes before his death; that after talking with him she went upstairs for a few minutes and then came down and called him but he was not there. Immediately afterwards, the mother saw a crowd running towards Thirty-fifth and Western Avenue, and learned that her son had been run over. On cross-examination, the mother testified that she had given her son a dollar bill and a note crumpled together to hold; that she told him to wait for her till she went upstairs to get her boudoir cap and button her shoes, and until she came downstairs. After a statement of the above facts, the court, at page 126, said: “Quite obviously, upon that evidence, the question of sufficient care on the part of the mother was a matter for the jury. ’ ’

In West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463, the court said:

“It is undoubtedly the duty of parents in cities to use reasonable care to guard their children against the known danger to them when allowed to go unattended upon the public streets; but the standard of such care is not capable of being defined by the law, and each case must depend upon its own facts and circumstances. That it is not negligence per se to permit infants to be upon the streets of a city was held by this court in City of Chicago v. Major, 18 Ill. 349.” To same effect are: Chicago & A. R. Co. v. Logue, 158 Ill. 621; City of Chicago v. Hesing, 83 Ill. 204; Illinois Cent. R. Co. v. Warriner, 229 Ill. 93; Livingston v. Blind, 138 Ill. App. 494.

In view of the facts as disclosed by this record, we are not prepared to hold that the parents of the child were guilty of contributory negligence. Furthermore, it was a question of fact for the jury to determine as to whether or not the parents were guilty of contributory negligence. This question was squarely presented to the jury in said Instructions 9, 11 and 15, given on the part of appellant.

It is also insisted that the court improperly permitted a certain witness to testify to his judgment as to the rate of speed of the train, without a foundation having been laid therefor. The question in the first instance was a question for the court to determine. The witness testified to his experience and we do not think that it can be seriously argued that the foundation was not sufficient and that the admission of his evidence was erroneous.

We conclude, therefore, that the judgment of the city court of the city of Moline should be affirmed, which is accordingly done.

Judgment affirmed.


author: Mr. Presiding Justice McSurely

text:
    Albert Pick & Company, Appellant, v. David L. Warshauer et al., Appellees.
    Gen. No. 31,286.
    1. Statutes — when legislative intent to nullify judicial construction of statute by amendment not shown. The presence in the Corporation Act of 1872 of the words “to the creditors” was not the reason that the courts held that the remedy for enforcing statutory liability of directors assenting to debts beyond the corporate stock must be in equity and not at law, and therefor the omission of them from Cahill’s St. ch. 32, H 23, does not mean that the legislature intended to give a right to law actions in such eases.
    2. Corporations' — ■basis of exclusive equity jurisdiction of suits to enforce directors’ statutory liability. The remedy for enforcing the statutory liability of directors assenting to corporate debts in excess of stock must be in equity and not at law because only in equity can all the different creditors and others interested be brought before the court.

      Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 14, 1927.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellant.
    Zane, Morse & Norman, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff’s declaration was met by a demurrer which was sustained. From the adverse judgment which followed, it appeals.

This is an attempt by an action at law to enforce the statutory liability of assenting directors for the debts and contracts of a corporation in excess of the capital stock. Defendants’ demurrer challenged the right to proceed at law and was sustained upon the ground that the sole remedy was in equity.

Section 16 of the Corporation Act of 1872 stated the directors’ liability as follows:

“If the indebtedness of any stock corporation shall exceed the amount of its capital stock, the directors and officers of such corporation, assenting thereto, shall be personally and individually liable for such excess, to the creditors.of such corporation.”

This was held to give the creditors a remedy in equity and not in a court of law. Low v. Buchanan, 94 Ill. 76; Woolverton v. Taylor, 132 Ill. 197; Gay v. Kohlsaat, 223 Ill. 260; Slater v. Taylor, 241 Ill. 102.

This is conceded by plaintiff, which relies on the amended and revised Corporation Act of 1919, section 23:.

“The directors shall jointly and severally be liable for the debts and contracts of the corporation in thé following cases:
“(1) For assenting to an indebtedness in excess of the amount of the capital of the corporation, to the amount of such excess;
“(2) For declaring or assenting to a dividend if the corporation is, or is thereby, rendered insolvent, or its capital is thereby impaired, to the extent of such dividend;
“(3) For debts contracted between the time of making or assenting to a loan to a stockholder or director and the time of its repayment, to the extent of such loan.
“For the purposes of this section the capital of the corporation shall be considered as the aggregate amount paid in on its shares of capital stock issued and outstanding.
“Unless a director was absent from the meeting at which such dividend was declared or loan made, or unless his dissent therefrom shall be entered on the corporate records, he shall be conclusively presumed to have assented thereto.”

The argument is that the sole ground for the construction of section 16 of the Act of 1872 as limiting the remedy to equity was the presence in that section of the words “to the creditors,” but as these words are omitted from the revision of 1919, section 23, the legislature therefore intended to permit an action at law. . We do not so conclude. The above-mentioned decisions were not based upon the presence or absence of the words “to the creditors,” but upon fundamental reasons of justice and expediency. In Low v. Buchanan, supra, the court said in denying the right of an action in a lawsuit: “Such a construction would, manifestly, lead in most cases to great difficulties and hardships. In all cases, where the corporation is insolvent, to allow the individual creditor to collect the whole amount of his claim against the corporation from a solvent officer of the company to the exclusion of other creditors whose claims are equally meritorious, would certainly be the grossest inequality and manifestly unjust.”

The opinion stresses the injustice of permitting a single creditor to pursue his action at law, quoting with approval from Hornor v. Henning, 93 U. S. 228, as follows:

“The remedy for this violation of duty as trustees is in its nature appropriate to a court of chancery. The powers and instrumentalities of that court enable it to ascertain the excess of the indebtedness over the capital stock, the amount of this which each trustee may have assented to, and the extent to which the funds of the corporation may be resorted to for the payment of the debts; also, the number and names of the creditors, the amount of their several debts, to determine the sum to be recovered of the trustees, and apportioned among the creditors, in a manner which the trial by jury and the rigid rules of common law proceedings render impossible.”

Like reasoning also appears in Stone v, Chisolm, 113 U. S. 302, where, in holding that the liability must be enforced in chancery, the court said: “Otherwise the facts which constitute the basis of liability might be determined differently by juries in several actions, by which some creditors might obtain satisfaction and others be defeated. The evident intention of the provision is that the liability shall be for the common benefit of all entitled to enforce it according to their interest; an apportionment which, in case there cannot be satisfaction for all, can only be made in a single proceeding to which all interested can be made parties.” This is convincing.

The reason the words “to the creditors” were not written in the revision of 1919 was not for the purpose of changing the law with reference to the remedy, but was probably in the interest of better English. Section 23 imposes liability “for the debts and contracts of the corporation. ’ ’ To have written it “for the debts to the creditors” would have been tautological. The legislative wish to avoid a solecism should not be exaggerated into an intention to change a rule of procedure founded upon justice.

We are not disposed to follow such decisions in other tribunals which may hold that a single creditor may proceed in an action at law. Most of the cited cases involved the right of an individual creditor to proceed under a statute malting the stockholder liable to the amount of his stock when the corporation is insolvent, where the amount of the liability is limited and fixed. Such decisions are not applicable to a case where only assenting directors are liable for a violation of their trust to all of the creditors of the corporation who may be injured thereby.

In other jurisdictions the liability of directors for the debts and contracts of a corporation was enforced by a proceeding in equity, regardless of the presence or absence in the statute of the words “to the creditors.” Among such cases are Westinghouse Elec. & Mfg. Co. v. Reed, 194 Mass. 590; Brown & Co. v. Ware, 87 Vt. 121; Lyman v. Hilliard, 154 Fed. 339. The opinions in these cases merely repeat in different forms that it is the appropriateness of the relief sought to the circumstances which determines the remedy, and that where, as in the instant case, only the directors assenting to the creation of the debts are liable, it is necessary, to do justice to all interested parties, that the proceedings should be in a court of equity, where all the parties in interest may be before the court and all the various equities determined and such a decree rendered in a single cause as shall be equitable and just to all concerned.

A further consideration fortifying our conclusion is' that in the Corporation Act of 1919 it is specifically provided that under certain circumstances - suits at law may be prosecuted by creditors individually. Such is the provision in section 149.

For the reasons above indicated we hold that the demurrer was properly sustained, and the judgment is affirmed. ■

Affirmed.

Matchett and Johnston, JJ., concur.


text:
    The Central Guarantee Company, Appellant, v. Fourth and Central Trust Company, Appellee.
    Gen. No. 31,491.
    1. Contracts — when, offer unilateral and revocable. The offer of a bank to pay $200 a year for five years for the purchase of a yearly bank directory, in return for which promise the publisher made no agreement to perform, is a unilateral offer and not a contract and hence the bank had the right to revoke at any time before the publisher should agree to perform, become bound by part performance, or actually perform.
    2. Contracts — when mailing of letter accepting offer does not establish contract. The mailing of a. letter accepting an offer does not make the offer a contract without evidence that the letter was received or brought to the attention of the offerer.
    3. Evidence — necessity of foundation for admission of copy of letter. An alleged copy of a letter should not be allowed to be introduced without proper foundation laid for such secondary evidence.
    4. z Contracts- — -when acceptance by letter of offer insufficient to establish contract. The record failing to show that the offerer had indicated that the acceptance of his offer could be made by letter, such an acceptance does not make' the offer a contract.
    5. Time — when contract subject to cancellation “at end of first year’’ may be canceled during second year. A contract for five years’ subscription to a directory, stating it was subject to cancellation at the end of the first year, may be legally canceled some three months beyond the end of the first year by at the same time paying for the second year’s directory thus barring the offeree of any equitable claim to continue the contract because of the expense of the second.gear’s directory.

      6. Time — when word “at,” fixing time, may mean “after.” Except for a promise to do a thing at a definite date, the word “at,” as in fixing a time for canceling a contract, may mean ‘ ‘ after, ’ ’ if this meaning makes no difference to the other party because of the reasonable time taken.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Howard W. Hayes, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 14, 1927.
    Moss & King, for appellant; Bertram H. Montgomery, of counsel.
    Kirkland, Patterson & Fleming, for appellee; Allan W. Cook, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by plaintiff from an adverse judgment entered upon a verdict directed by the trial court.

Plaintiff sought to recover $600 with interest, said to be the balance due on an alleged contract in writing under which defendant agreed to pay plaintiff $200 a year for five years for an annual bank directory. The writing is as follows:

“Central Guarantee Company
Fifth Avenue Building "New York City, N. Y.
City of Cincinnati, 0. 1919
Sept. 15/19
Please send to our address for 5 years
The Merchants’ Bank Directory for which we will pay the sum of $200.00 Dollars per year on receipt of the first copy following date of contract, and annually thereafter.
The Central Trust Company,
Cincinnati, Ohio.
Name H. P. Colville,
AJda^ss..........Y. P...........
Subscription commences Jan. 1/1920
Subscription ends Jan. 1/1925
Including name of bank in Merchants Bank Directory, names of officers, capital, surplus and undivided profits and deposits. This bank to have sole representation in this city in Merchants Bank Directory Subject to cancellation at end of 1st year
T. Starr.”

On January 3,1920, a copy of the directory was sent to the defendant and $200 was paid by it to plaintiff. January 7, 1921, a copy for the year 1921 was sent to defendant, and on March 3, 1921, it inclosed its check for $200, with a letter to plaintiff as follows:

‘ ‘ Gentlemen:—
“We are herewith enclosing you our check for $200 being in payment of the Merchants Bank Directory from January 1st, 1921, to January 1st, 1922.
“We now desire to inform you thalHwe wish to cancel this contract, as we find that this*service is of no use to us whatever.
“Very trufV flours,
£%>P. Colville,
‘ Vi§e President. ’ *

Plaintiff claims it is entitled to $200 for each of the years 1922, 1923 and 1924.

Defendant argues that the^ writing is a unilateral contract, void for want of mutuality, and says that this was the view of the trial court, which directed a verdict for defendant. In Alexander Hamilton Institute v. Jones, 234 Ill. App. 444, we had occasion to consider a somewhat similar contract and held that it was unilateral; that it contained an offer by the defendant to make periodical payments and that plaintiff had not undertaken nor promised to do anything. We held that in writings of this sort tfyefÉEeree (plaintiff) may be bound in either of three wajUj^fl) by the offeree engaging, in a reasonable time, to ■reform the contract; (2) by beginning such performance in a way which would bind him to complete it; and (3) by actual performance. We approved of what was said in Williston on Contracts, vol. I, p. 100, § 60, as follows: “After the offeree has begun to perform under such an offer he may unquestionably stop performance halfway if he concludes that after all he does not care to enter into the contract, and if the offerer also may not revoke at that time he is bound by a promise for which he has not received, and may never receive, the consideration requested, since the whole transaction is still optional with the offeree.”

This is squarely applicable to the writing before us. The only undertaking and promise is made by the defendant. There is no obligation to perform on the part of plaintiff.

A witness for plaintiff testified that she mailed a letter to the defendant, dated September 18, 1919, which referred t<? the alleged contract and contained the words, “We hereby accept and thank you for same.” There was no evidence that this letter was received by or brought to th^ attention of the defendant. Objection to an alleged copy of this letter was overruled. No proper foundation was laid for the introduction of such secondary evidence. Furthermore, Williston on Contracts, p. 146, § 83, states that a contract may be completed *by níailing a letter of acceptance when the offerer has authorized or indicated that acceptance may be made in this way. The record before us is entirely silent on this point.

Plaintiff insists, however, that a letter .of acceptance is not necessary to bind the parties, but in view of what we have said, we conclude that, in the absence of some of the legal modes of acceptance on the part of the offeree, the writing is merely a unilateral offer by the defendant •

We also^re of the opinion that, even considered as a bilateralSontract, the defendant properly exercised its option to cancel it. It is subject to “cancellation at end of 1st year.” The subscription commenced January 1, 1920. On March 3, 1821, defendant wrote plaintiff canceling it, and inclosing $200 in payment for the directory for the year 1921. In Farmers’ & Mechanics’ Nat. Bank v. Central Guaranty Co. (Tex. Civ. App.), 241 S. W. 600, in construing a like contract it was held that the cancellation must be made on or before the last day of the term, but the court had in mind that the directory for that year was already “off the press, completely bound and ready for distribution,” and apparently was of the opinion that it would be a hardship, after the plaintiff in that case had completed the volume, to permit the defendant to cancel the contract after the period of limitation had passed. That feature is not in "the present case.

The phrase “at the end of” or “at the expiration of” does not always necessarily imply that action must take place on the day of expiration in order to be a literal compliance with the contract. The word “at” is not invariably used to denote a fixed and definite time. It sometimes may be used to mean “about” or “after.” Magoffin v. Holt, 1 Duv. (62 Ky.) 95. In Rogers v. Burr, 97 Ga. 10, it was held that the phrase “at the expiration of three years,” when a subscriber to stock should elect whether he would keep it, was equivalent to meaning “after,” and that the subscriber was not required to give the notice immediately on the expiration of the three years, but could do so within a reasonable time thereafter. In Davidson v. Crump Mfg. Co., 99 Mich. 501, the words “at the end of this term” were construed to give a reasonable time after the expiration of the term. In Annan v. Baker, 49 N. H. 161, the words “at the end of one year” were construed as meaning “after” the expiration of the year.

When one undertakes to pay a note or do a certain thing “at” a certain definite date, the word undoubtedly means on the date named and not after-wards; but in the present circumstances where it made no difference to plaintiff whether defendant exercised the right of cancellation on or before December 31, 1920, or in March, 1921, we hold the cancellation to be within the provisions of the contract. We would have a different question to determine had plaintiff not received payment for the directory for 1921.

The record justifies the peremptory instruction to the jury, and the judgment is affirmed.

Affirmed.

Matchett and Johnston, JJ., concur.