author: Mr. Justice O’Connor

text:
    Catherine Turner, Appellee, v. Henry Schuh et al., Appellants. Appeal of Francis William Utz et al.
    Gen. No. 40,150.

      Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Rehearing denied December 5, 1938.
    Maximilian J. St. George and Frederick A. Lind, both of Chicago, for appellants.
    Edward S. Cody and Albert E. Hallett, Jr., both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

October 2, 1934, Catherine Turner filed her complaint in chancery to foreclose a trust deed made by Henry Schuh January 24, 1928, to secure an indebtedness of $51,000. Defendant, Henry Schuh, the mortgager, answered and filed a counterclaim for the return of $55,019.23 he had paid plaintiff toward the purchase of the land conveyed by the trust deed, for the claimed failure of plaintiff and the trustee named in the trust deed to execute deeds releasing several of the lots from the lien of the mortgage, in accordance with the provisions of the trust deed. Plaintiff answered the counterclaim denying that Henry Schuh was entitled to rescind the sale of the property and to have the money he had paid returned to him, for the reason that he was in default in mailing payments on the indebtedness. '

The record discloses that January 24, 1928, the owners of about 42 acres of land near Harvey, Illinois, sold the property to Henry Schuh for $61,000, $10,000 of which was paid in cash and the mortgage in question given to secure the payment of the remaining $51,000. Schuh was to subdivide the acres into lots and sell them. By the trust deed Schuh reserved the right to make partial payments on the indebtedness, and he was required to deliver to the mortgagees copy of the plat showing the subdivision and the price for which he was to sell each lot. The trust deed further provided that the mortgagees should make out a schedule fixing the amount they were to receive for each of the several lots, and that upon such amounts being paid the lot or lots would be released from the lien of the mortgage. The aggregate amount to be paid for the releases was $57,500, and upon Schuh making the proper payments he was given the right to select the lot or lots he desired released. Afterward the property was subdivided and there is evidence that the schedules of prices above referred to-were given.

December 1, 1936, Francis William Htz and Maria Htz, his wife, by leave of court filed their intervening petition in which they set up that on March 8, 1928, they entered into a written agreement with Sehuh to purchase certain lots in the subdivided property for which they were "to pay $10,600; that they paid this amount to Sehuh, and on information and belief charged the fact to be that Sehuh bad paid the mortgagees between February 1, 1928, and October 20, 1930, more than $33,000 toward the price of the land; that the $10,600 was a part of this sum; that it was the duty of the trustee to release the lots purchased by them from the lien of the trust deed, but that he refused to do so. They prayed that the trustee be directed to release the trust deed as to such lots, and that Sehuh be required to pay to them the $10,600 with interest; that they be subrogated to Sehuh’s rights under his counterclaim, or the lots be released and declared free and clear of the mortgage lien.

January 12, 1937, Anna Marie St. George filed her intervening petition setting up that on April 11, 1928, she entered into a written contract with Sehuh to purchase certain lots and blocks in the subdivided property for $100,000, which was to be paid by conveying to Sehuh -all her equity in certain real estate in Chicago; that afterward Sehuh conveyed to her two blocks of the property of the value of $10,000; that she demanded a conveyance by him of the balance, but he failed and refused to do this, and that there was due to her from Sehuh $90,000; that a decree be entered against Sehuh for $90,000, and that she be subrogated to Schuh’s counterclaim against plaintiff; that plaintiff be decreed estopped from foreclosing* the trust deed on the balance of the property which had not been deeded to her, and that the lien of the trust deed be released therefrom.

After the issues were made up the cause was referred to a master in chancery, who took the evidence, made his report and recommended a decree in accordance with the prayer of plaintiff’s complaint, and that a money decree be entered in favor of the Utzes against Schuh for $10,600 with interest thereon at 5 per cent per annum from December 30, 1930, for his failure to convey the lots in accordance with the terms of the written contract entered into between him and the Utzes. That there was due Anna Marie St. George from Schuh $90,000, with interest thereon at 5‘ per cent per annum from April 11, 1928, for his failure to convey the property to her in accordance with the terms of his contract; that Schuh’s counterclaim be dismissed for want of equity, and that the Utzes and Miss St. George had no greater rights against plaintiff than Schuh had. The master also found that Schuh made no defense to the claim of Miss St. George or the claim of the Utzes. Objections and exceptions to the report were overruled and a decree entered in accordance with the master’s report. Defendant Schuh, the interveners, the Utzes and Anna Marie St. George, appeal.

The record discloses that January 24, 1928, the 42 acres were conveyed by the owners to defendant, Henry Schuh, for $61,000, $10,000 of which was paid in cash and the balance of $51,000 was evidenced by 8 notes of that date made by Schuh, two for $2,500 each, due in 30 and 60 days respectively; 5 for $5,000, each due on or before 6 months, one year, 18 months, 2 years and 30 months; and one for $21,000, payable on or before 3 years after date; that to secure the payment of the balance of the purchase money Schuh executed his trust deed to Albert D. Murray, trustee, David T. Smithson, successor in trust, and the Northern Trust Company, second successor in trust; that afterward Schuh subdivided the property and expended certain moneys in the improvement of it for subdivision purposes; that he began to sell the lots and from time to time paid the first 4 notes aggregating $15,000’; he also paid $2,800 on account of note number 5, leaving a balance due on the principal of $33,200. The property was subdivided into 10 blocks of 247 lots, and from time to time as Schuh made payments to the mortgagees, 37 lots were released from the lien of the mortgage. The last release deed was dated November 20, 1930. Schuh defaulted in the payment of $2,200 of the $5,000 note becoming due July 24, 1929; he was also in default on the $5,000 note due January 24, 1930, the note for the same amount due July 24, 1930, the $21,000 note due J anuary 24, 1931, and in the payment of the general taxes for the year 1930 and subsequent years. He made his last payment to the mortgagees on the notes in 1930. Schuh testified that he received payments from the purchasers of the lots he sold after January, 1930, but there is no evidence that any of such money was paid by him to plaintiff on the notes.

The finding of the master, approved by the chancellor, was that since Schuh was in default in the payment of the indebtedness secured by the mortgage, which default occurred July 24, 1929, and afterwards for failing to pay the other notes and also in failing to pay the taxes, he was not entitled to release deeds — that he was entitled to no relief. Another finding of the master, approved by the chancellor, was that if any of the defendants were entitled to a release deed they should have filed a bill for specific performance.

Plaintiff contends that Schuh being in default at the time he demanded release deeds, was entitled to no relief; that “Schuh’s privilege of obtaining partial releases had been extinguished long before he first requested such releases.” In support of this counsel cite 2 Jones on Mortgages (8th ed.), sec. 1259, p. 752; Clason’s Point v. Schwartz, 262 N. Y. S. 756; Reed v. Jones, 133 Mass. 116; Ryan v. Rizzo, 114 Conn. 467; Gillies v. Dyer, 93 N. J. Eq. 635; City Bank v. Beckmann, 297 N. Y. S. 592, and other cases. These authorities sustain counsel’s contention.

In Jones on Mortgages, from the section cited counsel quote: “Even if the privilege is not expressly limited to the maturity of the mortgage, it seems that a partial release can not afterward be demanded; for it would be a fraud upon the rights of the mortgagee to hold that the mortgagor, while in default and no longer endeavoring to curry out his contract, should be permitted to select out the more valuable parts of the land and redeem them by paying the stipulated price, and leaving the less valuable parts unredeemed.” But Professor Jones, in the same section, continues as follows: “But on the other hand, construing such agreements in connection with the other provisions of the mortgage, and in the light of the manifest purpose which it was designed to subserve, it may be necessary to hold that the right to a partial release upon the stipulated terms continues until the mortgagee has fully executed the power of sale, or has otherwise foreclosed the mortgage.” In support of this statement the author cites Vawter v. Crafts, 41 Minn. 14 (42 N. W. 483.)

We are unable to agree with the conclusion of the master and the chancellor or the contention of counsel for plaintiff. In the instant case the record discloses that 42 acres were sold to Schuh with the express understanding that the land was to be subdivided. Obviously he was to sell the lots, and it is common knowledge that in such a situation the several persons purchasing the lots would not pay all cash but payment was to be made in instalments, and that such is the fact in the case before us is shown by the evidence. Moreover, it is manifest that neither the grantors of the property nor Schuh, the purchaser, put such a construction on the matter. This is shown by the undisputed evidence that Schuh was first in default in making the payments July 24, 1929, and continued in such default thereafter; yet we find partial releases executed by the trustee at various times, the last being November 20, 1930, about a year and a half after Schuh went into default. And for these same reasons we hold the contention of plaintiff that, “Unless the demand for partial releases is made simultaneously with the part payment, the privilege of obtaining such partial release is waived” cannot be sustained. Schuh was making partial payments from time to time out of the moneys received by him from the parties to whom he sold the lots. Such payments were not sufficient in amount in all cases to warrant the giving of release deeds at the times the various payments were made.

In Vawter v. Crafts, above cited, the Supreme Court of Minnesota held that where a mortgage was given on a tract of land to secure the payment of moneys at certain dates, as provided in an agreement that the mortgagor would plat the lands and that the mortgagee would release any of the lots when thus platted upon payment of a specified sum for each lot, the right to a release was not terminated by default in the payment of the sum secured by the mortgage, but continued in force until the mortgagee had fully executed the power of sale of the mortgaged premises. It was there further held that the covenant as to partial releases of the land ran and inured to the benefit of the grantee of the mortgagor who purchased one of the lots. The court in speaking of the provision for partial release said (p. 16): “This provision was manifestly inserted in the mortgage with reference to the sale of these lots, when platted, to different parties and to facilitate such sales. . . .

“It is claimed, however, that this agreement to give releases is conditioned upon performance by the mortgagors of all the covenants and conditions of the mortgage, and that, as default had been made in these, the right to demand a partial release no longer existed. There is certainly no express provision to this effect. By its terms the covenant is unconditional. If there is any such condition, it must be implied from other provisions in the mortgage. The covenant is not in its nature necessarily dependent on any other covenant or condition in the instrument. . . . The provisions of the mortgage as to foreclosure and sale of the mortgaged premises, in case of default, do not support defendant’s construction of the covenant. They are to be construed in connection with that covenant, and as qualified by it. So construed, there is no inconsistency between them. Reference is made to the supposed injustice and unreasonableness of construing the covenant as requiring the mortgagee to execute a partial release after there had been default in the conditions to the mortgage, and interest had accrued, and perhaps expenses incurred in commencing foreclosure proceedings. But we can not see sufficient force in this to warrant attaching by implication a condition or limitation to the covenant. If the mortgagee is paid the proportionate share of the accrued interest, and reimbursed for his expenses, we do not see how he can be prejudiced. His remaining security would be just as ample as if . the release had been demanded before default, and, in case foreclosure proceedings had been commenced, they would not be defeated or affected, as to the remaining lots, by the execution of a partial release. On the other hand, a contrary construction might work harshly against purchasers from the mortgagors, and defeat the very purpose for which the covenant was inserted. . . .

“Construing this covenant in connection with the other provisions of the mortgage, and in the light of the manifest purpose which it was designed to sub-serve, we are of the opinion that the right to partial release upon the stipulated terms continues until the mortgage has been fullly executed by sale of the mortgaged premises. See Clark v. Fontain, 135 Mass. 464, 144 Mass. 287.)”

In the instant case under every principle of equity and fair dealing, the purchasers of lots from Schuh who made their payments to him, he in turn making payments on account of the purchase price, ought not to be barred from having their lots released because of some default of Schuh. When plaintiff receives from Schuh the amount she is entitled to for any particular lot as specified in the schedule prepared by plaintiff, she in no way suffers any damage by releasing such lot — she is made whole in accordance with the terms of the agreement with Schuh. This has been the ruling of our Supreme Court in Lane v. Allen, 162 Ill. 426, and Williams v. Spitzer, 203 Ill. 505.

In the Lane case it was held that a mortgagor is not bound to pay the whole indebtedness in order to enforce the provision of a mortgage for a release of a portion of the premises upon certain partial payments, although at the time the mortgagor was in default. In that case a bill was filed to foreclose a mortgage on property which had been subdivided. The mortgagor filed a cross-bill to compel the release of a portion of the premises under the stipulation in a trust deed for partial payment of $500 or more, and it was held that the prayer of the cross-bill should be allowed. The bill of foreclosure there was filed after the maturity of the last note. The court there said (p. 430): “It cannot be said that it would be inequitable to compel the parties to carry out their contract, unless relief is barred under some rule of equity. There is no claim nor any evidence that Lane has done anything that could estop him from insisting upon his contract. The bill in this case was filed immediately after the maturity of the last note, and it was not shown that the parties had suffered in any manner or delayed enforcing their rights, relying upon the security upon the whole tract, as was the case in the only authority cited by appellees on this question, where the parties delayed foreclosure for- a year and a half, during which they thought, and had a right to think, the mortgage covered the whole land.”

In the instant case counsel for plaintiff contend that plaintiff delayed several years after the default before filing foreclosure. But just how plaintiff suffered any damage by reason of this does not appear. The court takes judicial notice that from 1929 for a number of years, under the financial condition of the country, there was great depreciation in the value of real estate and that a foreclosure sale brought far less than in former times. Straus v. Chicago Title & Trust Co., 273 Ill. App. 63; Atchison, T. & S. F. Ry. v. United States, 284 U. S. 248. If, upon default of Schuh plaintiff had proceeded with the foreclosure, we think it obvious she would have received much less for the property than what she was to have received for it from Schuh, the sale having been made in 1928. And in receiving the 1928 price of the property she would be making instead of losing money; it is the 1928 price she is to receive as a prerequisite to the execution of releases.

As to the contention of defendant Schuh that he was entitled to a deed rescinding the sale by tendering a few days before the complaint was filed in 1934, quitclaim deeds to the lots remaining unsold, and entitled to a return of the moneys he had paid, we are of opinion that the claim cannot be sustained. In the written notice served upon plaintiff by Schuh September 28, 1934, he tendered quitclaim deeds to the lots remaining unsold by him and those which had not been released from the lien of the mortgage, and demanded “the repayment ... of all moneys paid to you on account of the purchase price” including interest thereon. Obviously Schuh was not entitled to the return of all his money because 37 of the lots had been released. Moreover, Schuh was guilty of laches in failing to rescind. He could not complain because he had not demanded releases sooner. Nor is there any merit in his contention that some time before the filing of the foreclosure suit he offered to pay plaintiff a certain specified amount for each of the lots remaining unreleased. Obviously he could not demand a release unless he paid the price he had agreed to pay, as shown by the schedule of prices prepared by plaintiff.

Nor do we think the claim made by defendant Anna Marie St. George can be sustained. She did not pay Schuh the $100,000 for the lots and blocks she purchased from him, but only transferred to him in payment for such lots and blocks an equity she had in certain Chicago real estate; and there is no evidence nor any contention that we have been able to find that Schuh paid plaintiff the schedule price fixed for the lots and blocks purchased by Miss St. George. Obviously plaintiff was not required to execute releases until she received payment for the property sought to be released.

The claim of the Utzes for the $10,600 which they paid to Schuh for the lots purchased by them is entirely different. Counsel for the intervenors (Anna Marie St. George and the Utzes) say that there were 247 lots in the subdivision, of which 37 were released; that the amount paid by Schuh to plaintiff on account of the principal indebtedness secured by the mortgage was $18,450; that from this sum notes 1 and 2, totalling $5,000, must be deducted, leaving a balance for the purpose of releases of $13,450, and that for the release of the 37 lots Schuh paid plaintiff $9,250, leaving a net balance available for additional releases of $4,200. We hold this $4,200 should be applied toward the securing of releases of the lots bought by the Utzes according to the schedule of prices fixed by plaintiff for such releases ; but since that schedule is not in the record we must remand the matter.

The decree of the circuit court of Cook county is affirmed in all respects except as to the lots purchased by the Utzes, and as to that the matter is remanded for further proceedings in accordance with the views expressed in this opinion.

Decree affirmed in part, reversed in part and remanded with directions.

McSurely, P. J., and Hatchett, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Home Fuel and Supply Company, Appellee, v. Dr. O. A. Rawlins, Appellant.
    Gen. No. 40,181

      Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Stevens & Carrier, of Chicago, for appellant; George M. Stevens and George M. Stevens, Jr., of counsel.
    Oscar B. McGlasson, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

December 14, 1936, plaintiff brought an action of replevin against defendant to recover a certain quantity of coal. All the coal except a very small portion was taken on the writ from defendant and delivered to plaintiff. There was a trial before the court without a jury, a finding that plaintiff was entitled to possession of the coal, its damages assessed for the wrongful detention at $67.26, and defendant appeals.

The record discloses that plaintiff was engaged in the coal business in Chicago, and that defendant, a practicing physician, owned three buildings in Chicago; that about December 1, 1936, plaintiff received a telephone order from Miss Julia Thon for the coal in question to be delivered by plaintiff to defendant, some to each of defendant’s three buildings. The coal was delivered to the buildings December 1, 2, 3, 4 and 5. The sale was for cash and December 10 plaintiff wrote defendant a letter enclosing the invoices for the coal and saying that a representative of plaintiff would call the next day at defendant’s office for payment. On the next day defendant refused to pay, saying he had bought the coal from Miss Thon and had, several months prior to delivery of the coal, advanced $1,500 to her for coal he would thereafter purchase from her. Miss Thon was credited with the price of the coal out of the $1,500. Three days later plaintiff brought the instant suit, and all of the coal was taken on the writ except $67.26 worth, which plaintiff said was left at the three buildings so defendant would have enough coal to operate the buildings until he could get more.

Defendant contends that the title and right to possession passed out of plaintiff upon delivery of the coal in question to defendant, Dr. Rawlins, and cases are cited as well as sections of the Uniform Sales Act in support of the contention.

Obviously, before this proposition can be applied we must consider the evidence.

Plaintiff’s president testified he had known Miss Thon for some time; that she was a stenographer employed by the Maryland Coal & Coke Company for a number of years, and that plaintiff coal company bought considerable coal from the Maryland Company; that about December 1 Miss Thon telephoned him she was buying some coal for Dr. Rawlins, that she had been buying coal for him from the Racine Fuel Company but wanted to give the business to the plaintiff coal company. The price of the coal was agreed upon, and according to directions given by Miss Thon the coal was delivered within the next few days to Dr. Rawlins’ three buildings. There are also in evidence plaintiff’s delivery tickets showing the coal was delivered to the three buildings on the 1st, 2nd, 3rd, 4th and 5th of December; these tickets were receipted by various persons, one of them being signed by the Doctor himself.

December 10 plaintiff’s president wrote defendant, enclosing invoices for the coal delivered, each stating the terms were “net cash upon receipt of invoices,” the total price of the coal being $500.73. The letter said some one would stop at the Doctor’s office the next evening and pick up the check. December 11 the witness called the Doctor on the telephone and said that pursuant to the letter he had written to defendant the day before he would call for the check, but was then told by defendant that he had bought the coal from Miss Thon, not from plaintiff, and he had paid her for the coal. Plaintiff thereupon said they would have to replevin the coal; two or three days later the suit was brought and the coal taken on the writ, as above stated.

Dr. Rawlins, the defendant, testified that he was a practicing physician in Chicago and had known Miss Thon very well for 12 or 13 years; that during that time he bought all his coal from her; that she was in the coal business connected with the Belmont Coal Company, later with the Belmont Fuel Company and still later with the Southern Fuel Company, and that she also told him she was connected with the Maryland Fuel Company, a wholesale coal company; that during the period of years that he had bought coal from Miss Thon some of it came from plaintiff coal company ; “I paid for this coal [the coal in question] in advance. I had advanced the money”; that he had received plaintiff’s letter of December 10, inclosing the invoices, the following day and was dictating a reply when plaintiff’s president called him on the telephone, saying he would call for the check, and defendant thereupon told him he did not owe him anything, that he had bought the coal from Miss Thon; he further testified that “when Miss Thon came up she receipted these statements. The date ‘12/5/36’ indicates the date of our adjustment of accounts”; that he advanced to Miss Thon more money than was necessary to pay for the coal and that her signature appears on each of the invoices. On cross-examination he was asked if he did not owe Miss Thon for coal he had purchased a year before; he answered that he did not, that he always paid her cash. “And in June, 1936, I advanced her money and I advanced her as much as $1,500 in order to get a good price.” Miss Thon did not testify and there is no explanation as to why she was not called.

There is other evidence in the record but we think it unnecessary to detail further. We are also of opinion it would serve no useful purpose to discuss the statute and authorities cited by counsel for defendant because we have reached the conclusion that the judgment must be affirmed. Looking at the evidence in the view most favorable to defendant, we think the question of whether the coal was sold to Miss Thon or to defendant was one of fact to be decided by the court. The Court apparently found in favor of plaintiff on this question and we are clear we would not be warranted in disturbing his finding on the ground that it is against the manifest weight of the evidence. The sale was for cash and since the coal was not paid for upon delivery plaintiff was at liberty to treat the sale as conditional and reclaim it. Cheatle v. MacVeagh, 83 Ill. App. 336; Canadian Bank v. McCrea, 106 Ill. 281. In the Cheatle case the court said: “The goods having been put into appellants’ possession in the expectation that the price would be immediately paid, appellees were at liberty to treat the sale as conditional and reclaim the goods. Canadian Bank v. McCrea, 106 Ill. 281-298.” In the McCrea case the court said (p. 289): “It is not contested, in argument, that the law is, where personal property, other than commercial paper, is, by contract, sold for cash, to be paid on delivery, the delivery and payment are to be concurrent acts, and, therefore, if the goods are put into possession of the buyer in expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as conditional, and may at once reclaim the goods.”

But whether the law as above stated has been changed or modified by the enactment of our Uniform Sales Act, or whether the facts in the case from which we have above quoted are distinguishable from the facts in the instant case, so as to make the principle announced in those cases inapplicable, is not of controlling importance, as we are of opinion the court was warranted in any view of the evidence in finding that in reality there was no meeting of the minds of the parties and consequently no sale of the coal. Plaintiff’s president testified he sold the coal to Dr. Rawlins and delivered it to him, terms cash; Dr. Rawlins testified that he bought the coal from Miss Thon. If the court believed what each one said there was no sale because there was no meeting of the minds, and therefore when defendant did not see fit to pay for the coal plaintiff was entitled to repossess itself of it. Reid, Murdock & Co. v. Sheffy, 99 Ill. App. 189. In that case one of the questions involved was whether there was a sale of a store by Lillian E. Amphlett to the Plano Manufacturing Company. It was contended she did not own the store but that it was owned by other parties. The court there said the question whether a sale or an apparent sale was absolutely void or merely voidable at the instance of the vendor, and whether a bona fide purchaser from the vendee acquires, as against the vendor, a good title to the goods, had frequently arisen and been discussed, “the rule seeming to be that where goods are obtained upon false representations by the vendee as to his character, financial ability and intentions as to the goods, the sale is merely voidable, and a bona fide purchaser from the vendee will acquire a good title; but where the deception practiced upon the vendor is such that there is in reality no meeting of the minds of the parties, the sale is actually void and a bona fide purchaser from the apparent vendee will acquire no title. That in such an instance as is presented in this case — goods having been sold by appellants, as they believed, to Lillian E. Amphlett, she representing that she was buying them for herself, when in reality she bought the goods for three other parties and had no interest in them or their purchase save as the agent of said third parties —it has ever been held that the three concealed and unknown parties could hold goods so obtained against the vendor, we are unaware.”

In the instant case on each occasion when coal was delivered by plaintiff to defendant’s buildings it was receipted for by some one at the several buildings, one of the tickets being signed by Dr. Rawlins himself. A few days later plaintiff wrote defendant, enclosing the invoices for the coal, saying some one would call the next day for the check. This was December 11. After the 11th, the exact date not appearing, Miss Thon called on defendant and receipted the invoices, dating each of the receipts December 5, 1936. The court might well have found there was no satisfactory explanation of this.

Upon a consideration of all the evidence we are of opinion the judgment ought to be and it is affirmed.

Judgment affirmed.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Presiding Justice Murphy

text:
    The People of the State of Illinois ex rel. Otto Hiller, Appellant, v. Hugh Bevirt, Appellee.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Turner, Holder & Ackermann, of Belleville, for appellant.
    Farmer, Klingel & Baltz, of Belleville, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.

Otto Hiller, in the name of the People of the State of Illinois and as relator thereto, filed a petition in the circuit court of St. Clair county in which it was alleged that the defendant had usurped the office of supervisor of Caseyville Township in that county; that the State’s Attorney of the county and the Attorney General had failed or refused to file a complaint in quo warranto and prayed that he be granted leave to file and prosecute such a complaint.

Joseph Kinsella filed a like petition against the defendant and prayed for the same relief. After due and timely notice to the State’s Attorney, Attorney General and the defendant, a hearing was had and the prayer of each petition denied. Each plaintiff exhibited the complaint and supporting affidavit he wished to file. Each perfected an appeal to this court but inasmuch as the parties in each case are represented by the same attorneys and the questions raised are common to both cases the two appeals have been consolidated.

The facts alleged in the petitions, complaints and affidavits will not be stated except in so far as is necessary to consider the question of plaintiffs’ right to file their respective complaints.

The facts stated in the petition, which plaintiffs contend give them the right to prosecute a quo warranto proceeding in the name of the People, are that they are citizens and residents of and legal voters in Caseyville Township. In addition Hiller alleged that he is town clerk of said township while Kinsella states that he is a justice of the peace and by virtue of the office is a member of the board of town auditors of said township.

It is alleged that the defendant had not qualified as supervisor by filing an official bond as required by section 1, art. XI, ch. 139, Smith Hurd [Ill. Rev. Stat. 1937, ch. 139, § 100; Jones Ill. Stats. Ann. 133.102] ; that the defendant has failed and refused to keep proper accounts of the various public funds in his hands as supervisor; that he has issued vouchers which were not properly executed, and recorded and has failed to file proper reports as required by statute and that such acts and misconduct in office did by virtue of the provisions of section 108, art. XI, ch. 139, Smith Hurd [Jones Ill. Stats. Ann. 133.111] operate as a forfeiture of title to the office.

In addition to the foregoing facts, Hiller alleges that by reason of such misconduct and misfeasance in office he, as town clerk of the township, is prevented from performing his official duties and Kins ella alleges that such acts and neglect of duty by the defendant prevents him from performing his official duties as a member of the board of town auditors. Neither of the plaintiffs claim any right to the title of the office of supervisor or the right to name a successor in the event the defendant should be ousted.

Early in the history of the State, a statute was passed to regulate proceedings upon information in the nature of quo warranto against a person or persons who had unlawfully intruded into or usurped a public office or franchise. The beginning and prosecution of the action was placed in the hands of the Attorney General or the circuit attorney. Laws of 1833, p. 506.

By subsequent legislative enactments the uses and purposes of a quo warranto proceeding were extended so' that it was no longer limited to cases where there had been a usurpation of a public office or franchise but was made to also include those cases where there had been a usurpation of an office in a private corporation. By such extension it became a proceeding much used for the enforcement of private rights of individuals. But all acts passed prior to 1937 required that the proceeding had to be instituted by the Attorney General or State’s Attorney. Either of said officers were authorized to act on his own accord or at the instance of an individual relator. Porter v. People, 182 Ill. 516; People v. North Chicago Ry. Co., 88 Ill. 537; Hesing v. Attorney General, 104 Ill. 292.

Under the statutes as they existed prior to 1937 it was held that the Attorney General and the State’s Attorney had an arbitrary discretion in regard to filing a petition in the nature of a quo warranto in a case which was in fact a prosecution by the people and which involved no personal rights of an individual relator. It was also held that if an individual had a personal right that could only be enforced by information in nature of quo warranto and the State’s Attorney refused to file a quo warranto proceeding the individual had the right upon proper showing to mandamus the State’s Attorney and compel him to do that duty. People v. Healy, 230 Ill. 280; People v. Fullenwider, 329 Ill. 65. Whether the action was for the enforcement of a right in which the public alone was interested or the personal right of the individual, leave to file had to be obtained from the court.

The individual who sought to compel the State’s Attorney or Attorney General to file a petition for leave to file an information in the nature of a quo warranto to oust an usurper from a public office had to have an interest in the office itself peculiar to him and one that was not common to the public. The interest that an individual had as a taxpayer was not sufficient. People v. Fullenwider, supra.

In 1937 the legislature changed many of the provisions in reference to quo warranto proceedings and by section 10, ch. 112, Smith Hurd [Jones Ill. Stats. Ann. 109.498(2)] provided that all proceedings should be brought in the name of the People and authorized the Attorney General or the State’s Attorney of the proper county, either on their own accord or at the instance of an individual relator to bring such action. Either of said officers may file without first obtaining leave of court. The section departs from the former practice and provides that any citizen “having an interest in the question, on his own relation” may, if the State’s Attorney or Attorney General fail or refuse to file and if the court will grant him leave to file, file a complaint in quo warranto. Section 13 [Ill. Rev. Stat. 1937, ch. 112; Jones Ill. Stats. Ann. 109.498(5)] requires him to file security for costs.

The requirement of said section 10, that the individual who seeks leave to file a complaint in quo warranto must have an interest in the question, necessarily means that the question to which his interest must attach is the question being litigated. In the instant case, the question would be, has the defendant intruded himself into and usurped the office of supervisor of Caseyville Township?

Under the allegation of plaintiffs’ petitions and complaints their interests may be grouped in two classifications. First, as citizens and residents of the township they have an interest in having the office of supervisor filled by one who has been duly elected and has qualified by filing the bond required by statute. If the misfeasance and misconduct alleged in the petitions, complaints and affidavits amount to a forfeiture of the rights to hold the office, upon which we express no opinion, the plaintiffs are interested as citizens and residents of the township in having the office filled by one who will properly perform his official duties. The interests which plaintiffs have as citizens and residents of the township is not peculiar to them but is common to every citizen and resident of the township. If such interest was sufficient to entitle the plaintiffs to be granted leave to file a complaint in quo warranto then it would follow that every citizen and resident of the township would have an equal right to the use of the writ. In view of the restrictions that were placed upon the right of the individual, both at common law and by previous legislative enactments, we do not believe it was the intent of the legislature in the enactment of section 10 to lay in the hand of every citizen and resident the right to file and prosecute a quo warranto proceeding against a public official. The interest that a citizen and resident must have before he be granted such leave must be an interest personal to him and it must be peculiar to him and not one that is possessed by the public. This construction is supported by the reasoning of the Supreme Court in People v. Fullen wider, supra and by cases in other jurisdictions. Newman v. United States, 238 U. S. 537; State v. Matthews, 44 W. Va. 372; Commonweatlh v. McCarter, 98 Pa. 607; Mills v. State, 2 Wash. 566, 27 Pac. 560.

The other classification of plaintiffs’ interest would be that interest they have as public officials of the township in having one hold the office of supervisor that will perform his duties that they may properly perform theirs. It is apparent that such interest attaches only to the performance of the duties of the office. If the defendant has failed to perform the duties of the office and such failure amounts to statutory grounds for forfeiture and he was ousted by reason of such failure then plaintiffs’ interest as township officials terminates when he is ousted. Under this classification of interest the office of supervisor might be occupied by an usurper yet if he performed the duties of the office in such a way that plaintiffs could perform their official duties then plaintiffs would have no interest. The interest must be in the office itself and not merely in the performance of the duties of the office. If plaintiffs’ theory, that their interest as public officials is sufficient to entitle them to file a complaint in quo warranto, was adopted it would make it possible for one public official to test the efficiency of another official by a quo warranto proceeding. Such a construction would open the way to innumerable actions by one public official against another and would be extending the use of the quo warranto proceeding beyond the scope intended by the legislature.

The trial court’s order in denying plaintiffs’ leave to file their complaints in quo warranto was correct and is affirmed.

Judgment affirmed.


text:
    A. Perry Ready, Appellant, v. Board of Education, School District No. 103, Madison County, Appellee.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Rehearing denied December 12, 1938.
    Henry B. Eaton, of Edwardsville, for appellant.
    Wilbur A. Trares, of Edwardsville, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.

In this action plaintiff appellant seeks to recover damages for the breach of an alleged contract of employment whereby he claims he was employed to teach in defendant appellee’s schools for nine months, 1936-1937 at $200 per month. The case was tried without a jury and resulted in a judgment for defendant.

There was no written contract and the sole question is whether the record of the minutes of various meetings held by defendant together with plaintiff appellant’s acceptance constituted a contract of employment.

Plaintiff appellant had been in defendant’s employment as a teacher for five school years prior to the time in question. Plaintiff appellant introduced in evidence defendant’s records of meetings held at frequent intervals covering a period of 30 days prior to May 7, 1936, but our view is that these prior meetings contain nothing of value in determining whether there was a legal contract. They do establish the fact that there was a division of opinion among the members of the board as to whether plaintiff appellant and certain other teachers should be employed for another year but there was no official action taken that has any of the elements of an offer of employment. The record of May 7th as it pertains to this matter is as follows, “Motion by Mr. Wiegant, seconded by Mr. Grilles that the Board vote by Ballot on the teacher question, each teacher to be voted on separately. Namely Mr. Beady, Mr. Ferril, Miss Cochran, Miss Perkins. Carried (Un.) by Boll Call.

“Mr. Beady-

Yes vote to retain No vote to dismiss.

Yes, four (4) ballots No, two (2) ballots.”

At this meeting or one held immediately thereafter plaintiff appellant appeared before the board and verbally stated he would accept the employment. Within a few days thereafter the board rescinded the action of May 7th.

Section 127, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.145] provides that a board of education shall have all the powers of school directors and be subject to the same limitations. Section 112, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.127] directs that the clerk shall keep in a punctual, orderly and reliable manner a record of the official acts of the board and that on all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings of the board. Such provisions are mandatory and a failure to observe them is fatal. People v. Chicago & E. I. Ry. Co., 314 Ill. 352; Crawford v. Board of Education District No. 88, 215 Ill. App. 198. The purpose of the statute in requiring a yea and nay vote and the recording of the same is to give the taxpayers an opportunity to know how each member voted. The method followed by defendant appellee gives no such information and is in direct violation of the statutory provisions. The verbal acceptance of employment by plaintiff appellee did not operate as a waiver of the statutory requirements for they were enacted for the benefit of the taxpayers of the district and no liability could be created against the district except by a compliance therewith.

The judgment is affirmed.

Judgment affirmed.


text:
    Marilyn Emge, a Minor, by Ben Emge, Her Father and Next Friend, Appellant, v. Illinois Central Railroad Company, Appellee.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Rehearing denied December 1, 1938.
    Beasley & Zulley, of East St. Louis, for appellant.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.

Marilyn Emge, a minor 11 years of age, by her next friend, instituted this suit to recover damages for personal injuries she sustained when the automobile in which she was riding was struck at a private crossing by one of defendant’s trains. A trial to a jury resulted in a verdict for the plaintiff for $2,500. During the trial defendant filed the usual motions for a directed verdict but rulings thereon were reserved. After the verdict was returned the court granted defendant’s motion for a judgment notwithstanding the verdict and this appeal followed.

In ruling upon a motion for a judgment non obstante veredicto the trial court, and this court on appeal, have no authority to weigh and determine controverted questions of fact. In the consideration of such a motion the court is governed by the same rules applicable to a motion for a directed verdict. Capelle v. Chicago & N. W. Ry., 280 Ill. App. 471; Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14; Gardiner v. Richardson, 293 Ill. App. 40; Farmer v. Alton Bldg. & Loan Ass’n, 294 Ill. App. 206.

A motion to direct a verdict is in the nature of a demurrer to the evidence. The question presented by such a motion is whether there is evidence to sustain plaintiff’s case and in the consideration of such question the plaintiff is entitled to the benefit of all the facts that the evidence tends to prove and all just inferences that can be drawn therefrom, and the evidence most favorable to plaintiff must be taken as true. Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312; Libby, McNeill & Libby v. Cook, 222 Ill. 206; Blumb v. Getz, 366 Ill. 273.

The complaint contained three counts, the first of which charged that the defendant had for 15 years prior to the accident, sounded a whistle at this private crossing but that on the date of the accident it negligently failed to give such warning. In the second count it was alleged that immediately west of the crossing there was a sharp curve with an embankment on the north side of the track but within the right-of-way and that defendant permitted weeds, brush and trees to grow on this embankment and that by reason thereof plaintiff’s view of the approaching train was obstructed. The negligence charged in the third count was that defendant had for a period of 15 years given a whistle warning at this crossing but on the date of the accident failed to sound the whistle or ring a bell as required by the statute in reference to warning signals by railroad companies at public crossings. Defendant’s answer contained a general denial of each charge of negligence.

The evidence shows that Ben Emge, plaintiff’s father, resided with his family, which included plaintiff, on a farm near Belleville. The defendant’s right-of-way severed the farm, leaving that part upon which the residence and other farm buildings were located on the north and the remainder to the south side. The means of ingress and egress from the buildings to the land south of the right-of-way and to the public highway was over a private driveway from the residence to the defendant’s tracks a distance of approximately 200 feet and thence over defendant’s tracks on a private crossing where this accident occurred. The crossing was about 10 feet in length. The greater part of the space between the rails was planked. There was a board on the outside of each rail abutting to the rail thus forming an approach over the rails.

About 8 a. m. the morning of the accident Ben Emge started from his residence in his automobile, to take plaintiff and a 6-year-old son to school. He drove down the driveway to within 8 to 10 feet of the north rail of the tracks where he stopped his automobile, looked in both directions and listened for a train. He testified that no train was in sight and hearing none, he shifted the gear into low and proceeded slowly to cross the tracks; that when the front end of his automobile was on the track he saw the train approaching from the west, which was on his right-hand side, and it was then 50 to 100 feet away. The engine struck the automobile throwing it to the opposite side of the track from which it approached, a distance of 60 feet from the crossing.

Defendant used this track almost exclusively for one-way traffic and this train was traveling the usual direction and on the regular schedule. It consisted of an engine and 11 cars and was running 45 miles per hour.

West of the crossing, which was the direction from which the train approached, the track curved to the north so that as it proceeded in a northwesterly direction it was nearly west of the Emge residence. On the north side of the track at the curve but within the right-of-way there was an embankment which at places was 10 to 12 feet higher than the level of the track. Weeds, brush and small' trees were growing on this embankment to a height of 8 to 10 feet. The engine was about 16 feet, in height, above the rails.

Standing between the rails at the crossing the view was unobstructed for a distance of 600 to 800 feet. Five feet north of the crossing the view was open 400 feet, and 8 to 10 feet north it was reduced to 300 feet. Plaintiff and her father both testified that the automobile was stopped 8 to 10 feet from the north rail and that there was an unobstructed view to the west down the track for 300 feet but beyond that the vision was obstructed by the weeds, brush and trees on the embankment on the inner side of the curve.

At the time of the accident there was a light rain falling. Ben Emge testified he had the window on his left open. The train crew in charge of the train had made the run over this crossing for several years and were well acquainted with conditions at the crossing. Ben Emge had lived in this same residence for 15 years and knew the uses of the track and conditions at the crossing. Plaintiff had known the crossing from her earliest recollections as a child.

There was no statutory duty binding the defendant to give the statutory signals when the train approached this crossing. It had the common law duty to exercise due care. In Chicago & A. R. Co. v. Dillon, 123 Ill. 570, 579 it is said, “Without regard to the statute, it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger.” Chicago B. & Q. R. Co. v. Perkins, 125 Ill. 127; Chicago & A. R. R. Co. v. Sanders, 154 Ill. 531; Illinois C. R. R. v. Scheffner, 106 Ill. App. 344; Coyne v. Cleveland C. C. & St. L. Ry. Co., 208 Ill. App. 425.

Under the foregoing principles the question would be, was this crossing a place of known or reasonably apprehended danger 1 If it was then defendant had the duty to give warning of its approach and failure to observe that duty constituted negligence.

The obstruction furnished by the weeds, and brush on the embankment at and near the curve reducing the distance of unobstructed view to 300 feet was evidence from which the jury could have found that the crossing was such a place of danger that defendant should have given warning of its approach.

There is a sharp conflict in the evidence as to whether a whistle was blown or bell rung for the crossing. Plaintiff and her father testified positively that none were given while a part of the train crew with equal emphasis testified that both were given. Defendant contends that plaintiff’s evidence on this point is negative, that is that she and her witnesses testified that they did not hear the signals. The record discloses that on direct examination of plaintiff and her father the question was asked each of them as to whether a whistle was blown or a bell rung and each of them testify positively that no whistle was blown or bell rung. The credit to be attached to such evidence and the weight of the same were questions for the jury. We are of the view that there is evidence to support the charge of negligence in the second count of the complaint.

On the question of due care the undisputed evidence is that the automobile came to a stop 8 to 10 feet north of the crossing and that plaintiff and her father both looked and listened for a train but that seeing or hearing none the father proceeded to drive across the tracks. On this point defendant contends that since the view was unobstructed for a distance of at least 300 feet west of the crossing, that is in the direction of the approaching train, the plaintiff and her father should have seen the train and that when they testify they did not see it, it is manifest that they did not do that which they testified they did. If the automobile was stopped 8 to 10 feet north of the track and then started over the crossing in low gear and was struck on the crossing when the train was traveling 45 miles per hour it is very probable that at the time plaintiff and her father looked, the train was not within the 300 feet of unobstructed view. Defendant relies upon such cases as Grubb v. Illinois Terminal Co., 366 Ill. 330; Provenzano v. Illinois Cent. R. Co., 357 Ill. 192; Greenwald v. Baltimore & O. R. Co., 332 Ill. 627. The evidence in the Grubb case was that 50 feet south of the crossing there was a clear view for a distance of 450 feet and 75 feet south of the crossing a clear view of 175 feet and that at a point of 100 feet south, the view was 112 feet. In the Provensano case the evidence was that for a distance of 25 feet from the track the view was not obstructed for 900 to 1,000 feet. In the Greenwald case 30 to 40 feet from the crossing the view was unobstructed for a distance of 200 feet. In Lewis v. Illinois Terminal Co., 276 Ill. App. 610 (Abst.) this court held the plaintiff’s intestate was not in the exercise of due care for his own safety at a crossing where he could see an electric car approaching 700 feet down the track when he was 20 to 30 feet from the crossing.

The distance plaintiff was from the track, when the automobile was stopped and she looked and listened, and the length of the space, where there was an unobstructed view towards the approaching train, are important elements in considering the question of her due care but in view of the other facts and circumstances, surrounding her attempt to pass over the crossing as heretofore pointed out, we are of the opinion that the question of her due care was one for the jury.

The court erred in sustaining defendant’s motion for a judgment notwithstanding the verdict.

Plaintiff asks that this court enter judgment on'the verdict while defendant contends that if this court should deem the trial court’s ruling on its motion for a judgment non obstante veredicto erroneous, that the cause should be reversed and remanded for a new trial.

Defendant urges that the court erred in the refusal of two of its instructions. Both instructions were in reference to the due care that was to be exercised by the plaintiff. The first instruction was properly refused for it did not limit the due care which the plaintiff was required to exercise to that which a person of her age, capacity, intelligence and experience would be expected to exercise. The substance of the second refused instruction was covered by other instructions given at request of defendant.

We conclude that the evidence supports the verdict and that there was no error committed in the trial of the case that prejudiced the rights of the defendant. For the reasons stated the judgment of the lower court is reversed and judgment to be entered in this court in favor of the plaintiff and against the defendant for the amount of $2,500.

Judgment reversed and judgment on verdict in this court.


author: Mr. Justice Edwards

text:
    C. A. Prange and George A. Wallace, Appellants, v. City of Marion, Appellee.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Rehearing denied December 12, 1938.
    E. E. Denison and L. A. Colp, both of Marion, for appellants.
    Warford & Franklin and John Hay, both of Marion, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff brought a suit for accounting against defendant, city of Marion, based upon two grounds; first, for money had and received by defendant for use of plaintiffs and negligently withheld from them, and second, for money due plaintiffs for losses and damages sustained by reason of the wrongful, unlawful and negligent acts and omissions of defendant as a trustee. The latter filed its motion to dismiss the complaint, or, in the alternative, to strike certain paragraphs therefrom.

The motion was overruled as to the allegations referring to the first ground alleged for recovery, and as to such the cause is still pending in the trial court, while it was sustained as to those paragraphs whose averments relate to the relief based upon claimed loss resultant through the alleged wrongful, negligent and unlawful acts of defendant. From such parts of said order as sustain the motion to strike, plaintiffs have appealed.

The order complained of reads as follows: “And those parts of the plaintiffs’ cause of action and complaint to which the defendant’s motion is hereby sustained, are dismissed. And it is further ordered and adjudged by the court that the defendant’s motion to strike and to dismiss in all other respects be and the same is hereby denied. And the defendant' is given until November 15, 1937, to file its answer to the parts of the amended Counts 1 and 2 and Count 3 of the complaint not stricken therefrom.” No other order or adjudication was made in the premises.

Appeals are only allowed, under the Civil Practice Act, to review final judgments, orders or decrees, as provided in section 77 of such act [Ill. Rev. Stat. 1937, ch. 110, § 201; Jones Ill. Stats. Ann. 104.077] and as held in Daab v. Ritter, 294 Ill. App. 203.

In Harvey v. Cochran, 103 Ill. App. 576, where a demurrer was sustained to a special count of a declaration, and common counts were not disposed of, the plaintiff elected to stand by such special count and refused to amend, whereupon the court dismissed the cause at plaintiff’s costs and awarded execution therefor. Upon review this court held: “The record in this case shows simply an order dismissing the case for want of prosecution. We must accept this as a statement of fact. This is not the record of a final judgment. It is no bar to another suit for the same cause of action.” The writ of error was dismissed.

Also, in Kircher v. Hamill, 239 Ill. App. 496, this court ruled: “An order sustaining or overruling a demurrer to a bill, declaration or petition is merely interlocutory and no appeal lies therefrom, as to justify an appeal there must be a final order or decree in a chancery suit, or a final judgment in a suit at law. To be appealable, the order, judgment or decree must contain language to the effect that the party take nothing by the writ or that the defendant go hence without day.” The appeal was dismissed.

These decisions were rendered prior to the enactment of the Civil Practice Act; however, as section 77 of such act provides for appeals only from final orders, as did the Practice Act in force at the time such opinions were filed, the rule necessarily is the same, as held in Duncan v. National Bank of Decatur, 285 Ill. App. 305, in a suit brought after the Civil Practice Act became operative, where the court found in favor of defendant and ordered that the latter recover its costs of plaintiff and have execution therefor. The Appellate Court, in dismissing the appeal, stated that a proper judgment order would have provided that “the plaintiff take nothing by his suit and that the defendant go hence without day, and that the defendant have and recover of and from the plaintiff its costs and charges in this behalf expended, and have execution therefor.”

Where a trial court sustained a demurrer to an additional count to a declaration, but not as to other counts, it was ruled that such order was not final; Review Printing & Stationery Co. v. McCoy, 291 Ill. App. 524.

In the well considered opinion in Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200, where a general demurrer to a declaration was sustained and plaintiff elected to stand thereby, and the order of the court was: ‘ ‘ Therefore it is considered by the court that the defendant do have and recover of and from the plaintiff its costs and charges in this behalf expended and have execution therefor,” the court stated: “The judgment was not final and the statute only authorized appeals from final judgments. The Circuit Court merely sustained a demurrer to the declaration, and neither adjudged that the plaintiff take nothing by the writ or that the defendant go hence without day, and the judgment contained no words of equivalent meaning. There was no trial of any issue resulting in a finding for the defendant, as there was no issue to be tried, and there was nothing in the nature of a determination of the rights of the parties. Such a judgment is not final.”

The order in the instant case merely provided that certain parts of the complaint be dismissed and other portions upheld. It did not, in respect to those dismissed, adjudge that as to those, plaintiffs take nothing, nor that so far as they were concerned, defendant go hence without day; neither did it contain words or phrases of equivalent import, hence within the rule of the cited authorities did not dispose of the rights of the parties respecting such dismissed paragraphs. It was, according to the holding in Harvey v. Cochran, supra, “no bar to another suit for the same cause of action.”

Defendant might properly have moved to dismiss the appeal. Instead of so doing it entered appearance and filed its brief and argument, and it only remains to consider the effect of such action.

In Daab v. Ritter, supra, this court held that where there is no final order from which an appeal can be properly prosecuted, the Appellate Court has no jurisdiction of such appeal, even though consented to by the parties.

We likewise held, in Kircher v. Hamill, supra, “If the judgment appealed from is not final, the Appellate Court should dismiss the appeal of its own motion at the cost of the appellant, for want of jurisdiction of the subject matter, and it has no power to enter judgment on the merits although the parties make no objections. ’ ’

Not only do the decisions of this district hold that where an appeal is taken from an order not final and the reviewing court is without jurisdiction to entertain it, such authority cannot be conferred by consent or acts of the parties, and the Appellate Court upon being apprised of such fact is bound of its own motion to dismiss the appeal though appellee fails to move for same, the rule is likewise declared by the Supreme Court and the Appellate Courts of other districts; People v. Banks, 285 Ill. 137; Chicago Portrait Co. v. Chicago Crayon Co., supra; Routt v. Newman, 157 Ill. App. 242 (1st Dist.); Review Printing & Stationery Co. v. McCoy, supra (2nd Dist.); Meyer v. City of Decatur, 134 Ill. App. 385 (3rd Dist.).

The order complained of is not final. This court is therefore without jurisdiction to review it, and by the established law of this State is obligated to dismiss the appeal, regardless of the fact that appellee has not requested that same be done.

Appeal dismissed.


text:
    Edna Mae Smith, Appellee, v. Illinois Power and Light Corporation, Appellant.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Rehearing denied December 12, 1938.
    Dryer, Brown & Poos, of Hillsboro, and P. K. Johnson, of Belleville, for appellant.
    Pope & Driemeyer, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff, a resident of East St. Louis, was a patron of defendant, Illinois Power and Light Corporation, which sold and distributed gas to the residents of said city. On March 31, 1936, defendant replaced the gas service pipe leading into plaintiff’s residence, and in doing so excavated a trench from the street main to the dwelling house, a distance of some 50 feet. The ditch was about 14 inches wide, with a depth varying from 18 inches at the porch to 3 feet at the street.

On the premises was a concrete walk leading to the street, and another one paralleling the porch and leading to the driveway at the side of the house. The ditch was tunnelled under the last named walk and the dirt taken from the ditch was used in its refill, leaving a mound a few inches in height. Owing to the smallness of the trench under the sidewalk, the dirt used in fining same was tamped in by employing the shovel handles of the workmen as tampers. One of the workmen actually doing the refill under the walk stated that he did so by throwing in 10 or 12 shovelsful at a time and then tamping. His foreman testified that the proper method of replacing such dirt was to tamp same after putting in three or four shovelsful.

On July 28, 1936, plaintiff had occasion to walk out into her yard and stepped on the mound covering the ditch a few inches from the concrete walk underneath which the trench had been tunnelled, whereupon the earth gave way and she fell forward, striking her knee against one of the bricks which were laid with corners up and which formed the edge of a flower plot. As a result of her fall she sustained various injuries, including a laceration over the left knee cap and a bruising of her left wrist. Previous to the accident the proof shows that she had suffered from arthritis in both knees. It further appears that she was suffering pain in her limb and unable to use same normally 14 months after the injury was sustained; also, that she had become liable in the sum of $125 for expenses actually incurred, and that in order to relieve her condition an operation costing in the neighborhood of $300 would be necessary, such operation to .be attended with some hazard, as a stiff knee might result therefrom.

Plaintiff brought suit, a jury awarded her damages in the sum of $2,500 upon which the court rendered -judgment, and to reverse which defendant has prosecuted this appeal.

Defendant insists that the court should have directed a verdict in its favor for the reason that no proof was offered that plaintiff was in the exercise of due care for her safety at the time of and just prior to the accident. Before the court would have been warranted in so acting, the situation must have been such that all reasonable minds would agree that the plaintiff was guilty of conduct which proximately contributed to the accident; Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104; Petro v. Hines, 299 Ill. 236. Upon this record we think reasonable persons might have differed upon the question, and that the court properly refused to direct a verdict for such reason.

Defendant further contends that while the work was performed under its control, and the question of the doctrine of res ipsa loquitur was thus presented, that it offered testimony which overcame the application of such doctrine. The law bearing upon that proposition is well settled that the explanation of the manner in which defendant’s servants performed the work upon the premises of plaintiff, and whether same was sufficient to rebut such presumption of defendant’s negligent conduct, are questions of fact; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383; Roberts v. Economy Cabs, Inc., 285 Ill. App. 424.

The rule of res ipsa loquitur was properly raised by the proof, and whether or not defendant’s testimony in explanation of its conduct was sufficient to overcome the presumption raised by the doctrine was properly submitted to the jury as a question of fact. In order to warrant a reviewing court’s interference with such finding, the record must clearly show that it was manifestly contrary to the weight of the evidence; Belz v. Piepenbrink, 318 Ill. 528; Carney v. Sheedy, 295 Ill. 78. This we are unable to say upon a consideration of this record.

The trial court, at the instance of plaintiff, gave two instructions. Complaint is made that they did not require the jury to find certain facts as based upon a preponderance of the evidence. Whether the instructions could be 'so construed is of little consequence, as those given on behalf of defendant emphatically charged the jury that plaintiff, to recover, must establish such facts by .the preponderance or greater weight of the evidence. Instructions are read as a series, and if the entire charge fairly and correctly states the law it is sufficient; People v. Falley, 366 Ill. 545. We do not think any prejudicial error was committed in this regard.

Certain rulings on evidence are questioned, upon a consideration of which we are of opinion that no harm resulted to defendant.

It is insisted that the verdict is excessive and that a remittitur should be required. While plaintiff, prior to the accident, had arthritis, it is shown that same was aggravated by the injury to the left knee. She had, 14 months after the occurrence, constant pain in the joint and a limited use of the knee; that to rectify that condition, an operation for removal of cartilege would be necessary which would require her to keep off her feet for a period of 6 weeks or more; that while such operations are usually successful, there is a chance that a stiffening of the knee joint, with added loss of its use, may result; and that the expense of such an operation, together with obligations already incurred by plaintiff relative to the injury, would aggregate $400.

The jury were charged with determining the amount of compensatory damages plaintiff should receive and their award will not be disturbed unless so palpably excessive as to indicate some improper motive upon the part of the jury such as passion or prejudice; Crane v. Railway Exp. Agency, Inc., 293 Ill. App. 328; Owens v. Guerney, 241 Ill. App. 477. We do not think the amount is so inordinate as to suggest any such purpose or motive.

The judgment is affirmed.

Judgment affirmed.


text:
    Solomon Antibus, Appellee, v. W. T. Grant Company, Appellant.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Wheeler, Oehmke & Dunham, of East St. Louis, for appellant; E. Fred Gerold, Jr., of East St. Louis, of counsel.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On July 28,1936, defendant operated a store in East St. Louis, selling dry goods and clothing, same being conducted-on two levels, a main floor and basement. A stairway, about 7 feet wide and consisting of 19 ordinary steps, led from the first floor to the basement. At the top of the stairway, on the main floor, was a banister or railing around three sides of the stairway, the entrance thereto being from the east. There was freedom of movement all the way around the railing, and the stairway was visible to anyone who might be, in proximity thereto, and the same was well lighted by electricity.

On the day referred to, plaintiff went into the store and down the basement stairs in order to make some purchases. As he descended he met two women and a child coming up the stairway. He remained in the basement some 20 minutes or more, then started up to the main floor, and when at about the fifth or sixth step, stepped upon a banana peel and fell, sustaining injuries to his knee and other portions of his body for which he brought suit. The cause was twice tried, the first trial resulting in a disagreement of the jury, and in the second there was a verdict for plaintiff in the sum of $250, upon which judgment was entered and from which defendant has appealed.

The complaint, in the usual form, averred that defendant carelessly allowed refuse to accumulate upon the stairway, “which said refuse, to-wit: banana peeling, was known by the said defendant to be upon the said steps where the public, including the plaintiff, was required to pass in leaving said basement, or could have been known to said defendant by the exercise of reasonable care.”

In such situations the keeper of the store is not an insurer of the safety of his patrons, his duty being to keep his premises in a reasonably safe condition so. that customers will not be injured by reason-of-any - unsafe condition of the premises; Devaney v. Otis Ele vator Co., 251 Ill. 28; Jones v. Kroger Grocery & Baking Co., 273 Ill. App. 183. It is necessary to allege and prove that defendant knew of such unsafe condition, or that same existed for a period of time from which it might be inferred that he, by exercising ordinary care, could have learned of same; Calvert v. Springfield Elec. Light & Power Co., 231 Ill. 290; Davis v. South Side El. R. Co., 292 Ill. 378.

Plaintiff properly pleaded such matters, and it was incumbent upon him to produce some evidence reasonably tending to support such allegation. There was no attempt to show that defendant had actual knowledge that the banana peeling was on the steps, hence the question is, was same there so long that it might fairly and reasonably be said that defendant, by the exercise of ordinary care, could have or should have known of its presence.

At the close of plaintiff’s case defendant moved for a directed verdict, which was overruled; the motion, however, was renewed at the close of all the evidence, and again denied.

It is contended that there was no proof produced by plaintiff showing either actual knowledge on the part of defendant, or reasonably tending to prove the presence of the peeling on the steps for a sufficient length of time to charge defendant with knowledge of such fact, and that the trial court erred in denying such motion. If such contention is correct the motion should have been sustained; Dee v. City of Peru, 343 Ill. 36.

The proof in plaintiff’s case bearing upon this proposition is the testimony of plaintiff himself, his two other witnesses not testifying to such matter. Plaintiff stated that he did not see the peeling upon the stairs when he descended; that he was in the basement 25 or 30 minutes or maybe longer. He testified: “While I was down in the basement I did not see anyone using the stairway”; and upon cross-examination he deposed: “I just stopped to try on some straw hats; I tried on several but I found none to suit me, and then I looked at some shirts. I was standing sideways to the stairs when I tried on the hats, and then I walked down the aisle with my back to the stairs. My back was to the stairs maybe three or four minutes when I walked down there. ’ ’ This, in connection with the circumstance that plaintiff, as he descended the stairs, met two women and a child coming up, is the only proof as to the use of the stairway during the period involved.

This is the sum total of the proof bearing upon the proposition. From this, therefore, it is manifestly a matter of conjecture as to when the banana peeling first came upon the stairs, or by whom or in what manner it was deposited there. Whether others descended the stairs shortly before plaintiff came up is not shown. He stated that he saw no one, and further said that his back was turned to the stairs for a period of three or four minutes; moreover, he was examining goods, intent upon making purchases, and evidently was not looking around or observing the stairway. It is entirely possible that the peeling may have been thrown down the stairway by some person near the railing* at the top, or have gotten there in some manner unexplained by the evidence. There is no testimony that' it was there for any particular period of time prior to the accident, and there is certainly nothing reasonably tending to prove that it was on the steps sufficiently long to charge defendant with knowledge of its presence. Where such is trite, plaintiff fails to establish oiie of the essentials of his right to recover, and the trial cburt should direct a verdict for defendant; Goddard v. Boston & Maine R. Co., 179 Mass. 52, 60 N. E. 486; De Velin v. Swanson (R. I.), 72 Atl. 388.

In our opinion the motion to direct a verdict for defendant at the close of plaintiff’s case should have been sustained.

Judgment reversed.


text:
    Bert Morehouse et al., Appellees, v. Gulf Warehouse and Sales Company, Appellant.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Lansden & Lansden, of Cairo, for appellant.
    Miller & Miller, of Cairo, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

Eleven suits were brought against defendant by plaintiffs, before a justice of the peace of Alexander county, to recover wages claimed to be due and owing for labor and services rendered to defendant by plaintiffs while working upon the levee at Cairo during the flood times of January and February, 1937. Recovery was had before the justice and defendant appealed to the circuit court, where, after a hearing before the court without a jury, judgments were rendered in behalf of eight of plaintiffs for $120 each, together with costs and attorneys’ fees, and as to the other three plaintiffs the amount allowed in each instance was the sum of $48, also with attorneys’ fees and costs. Defendant now asks this court to review such judgments.

Defendant raises three propositions: 1st, that it did not employ plaintiffs; 2nd, that even though its officers did engage them, they were not authorized so to do; and 3rd, that the trial court erred in rejecting an offer by defendant to prove certain facts.

As to the first contention, the eleven plaintiffs testified that Warren C. Sargent, defendant’s superintendent at Cairo, engaged them to do the work. Sargent denies this. However, we think the decided weight of the testimony establishes the fact that they were in fact engaged by him in behalf of defendant.

As to the second proposition, it appears that at the time in question defendant was operating a warehouse at Cairo which contained a vast quantity of sugar; that flood conditions on the Ohio river threatened to overflow the levee and flood, if not destroy, the city, and that the civic authorities appealed to all men and employers of labor to lend their aid in working upon the levee in the effort to avert the threatened calamity. At the time referred to defendant had in its regular employ some seventy men, a number of the plaintiffs having been engaged by Sargent a few days prior thereto, to labor at its plant. For years he had employed and discharged laborers in and about the plant as conditions required, and several of the plaintiffs had previously been engaged by him to work for defendant at different times. He thus appears to have had the customary authority of a plant superintendent to engage and discharge help as the situation demanded.

Requested by the city authorities to furnish all the man power employed by defendant, Sargent, by telephone, called his superiors in San Francisco regarding same. He testified that he was directed and authorized to transfer to the levee all the regular employees of defendant, but was expressly directed by C. J. Moroney, vice president of defendant, “not to turn over to the city or hire for our company any men other than our regular employees.” The testimony of Moroney upon such matter was: “He (Sargent) was told to send everybody to the levee. It would be ridiculous if anything was said about possible employment of additional men to work for the Gulf warehouse. ’ ’ In view of the statement of Moroney and the clearly proven fact that Sargent did engage plaintiffs to do the work in question, which he no doubt would not have done had he been expressly ordered not to do so, it seems reasonably clear that the matter of additional help was not referred to in his telephone conversation with Moroney, and that he was not forbidden as he testified.

Wé think the proof discloses that Sargent, as defendant’s superintendent of its Cairo plant, had over a term of years been permitted to hire and discharge employees as the exigencies of the situation required; that some of the plaintiffs had previously been so employed by him, and that the general course of dealing with laborers over such period was such as to justify a person of ordinary prudence, conversant with the usages of business and the character of the particular occupation, in believing that the superintendent had the authority to employ in the work in question. Where such is true, a principal may not deny the agency to the injury of an innocent employee who has in good faith relied upon it; Faber-Musser Co. v. Dee Clay Mfg. Co., 291 Ill. 240; Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554. In our opinion, under the circumstances, plaintiffs were fully warranted in believing that Sargent had authority to engage them, and that the court was right in so holding.

It is also claimed that the trial court improperly refused an offer of proof by defendant.. The offer was : “The defendant desires to show by this witness and other witnesses who will be present that the Works Progress Administration of the Federal Government, ordinarily called the W. P. A., brought several thousand men here to Cairo to work on the levee during the high water of January and February, 1937, and that there was an understanding that the W. P. A. would take care of the pay roll on the levee for all men doing the work. These officials announced on February 3rd that they would no longer be responsible for the wages of any men on the levee work and that not until after that time did any of these plaintiffs ever make a claim that they were employed by the Gulf Warehouse and Sales Company.”

It will be observed that the offer refers to an understanding that the W. P. A. officials would take care of the pay roll. Nowhere does it contain any assertion that plaintiffs, or any of them, were parties to the understanding. Unless they were such parties they would not be bound by the same, hence proof of such understanding, unless the plaintiffs were parties thereto, or in some manner assented to same, would be incompetent. Where an offer to prove embraces evidence which is in part inadmissible, the whole offer may be rejected; Harman v. Indian Grave Drainage District, 217 Ill. App. 502; People v. Venard, 168 Ill. App. 254. The court’s ruling thereon was correct.

We are satisfied that the judgments were right, and they will be affirmed.

Judgments affirmed.


text:
    E. H. Hoffman, Trading as Hoffman Lines, et al., Appellees, v. Central Surety and Insurance Corporation, Appellant.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Philip G. Listeman, of East St. Louis, J. H. Cunningham, Jr., and J. S. McClelland, both of St. Louis, Mo., and Costigan & Wollrab, of Bloomington, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff, E. H. Hoffman, an operator of transport trucks, living at St. Louis, Missouri, and hauling goods between various points in Illinois, on October 3, 1934, secured a policy of liability insurance from the American Fidelity and Casualty Company of Richmond, Virginia, which was not authorized to transact business in this State. The policy, in the usual form, was to continue in force until otherwise terminated, and contained a clause which authorized the insurer to cancel the contract at any time by a written notice to the insured, and which might be served on him or sent by U. S. mail.

On the same day said plaintiff also took out with defendant, Central Surety and Insurance Corporation, another contract of insurance which was attached to the policy first mentioned and referred to as an indorsement. The latter provided that “nothing herein contained shall be held to vary, alter, or waive or extend any of the agreements or conditions of the undermentioned policy other than as above stated. . . . The policy to which this indorsement is attached, stm.11 cover the operation of automobile trucks, tractors and trailers of whatever type owned, leased, or hired by, or operated under contract or agreement with the named assured during the term of this policy, and used in the business of the named assured, and for the purpose as stated in the declaration. ’ ’

On March 26, 1935, a truck with attached trailer, owned and operated by Hoffman, collided with a car in which plaintiffs Leslie D. Snow and Myrtle L. Snow were riding; as a consequence of which the Snows brought suit in the circuit court of McLean county, Illinois, where they severally recovered judgments against Hoffman, Myrtle L. Snow in the sum of $4,500, and Leslie D. Snow in the sum of $500.

Hoffman paid $1,000 to apply on the Myrtle L. Snow judgment, and brought suit against defendant upon its contract of insurance to recover said amounts. The Snows, by leave of court, were permitted to join as plaintiffs and the cause proceeded to hearing before the court and jury. Defendant seasonably moved for a directed verdict, which was overruled, while plaintiffs’ motion at the close of all the evidence for instructed verdicts in their behalf were sustained, and verdicts were rendered in favor of plaintiffs, $1,000 to Hoffman, $3,682.29 to Myrtle L. Snow, and $526 to Leslie D. Snow. Judgments were entered upon these findings, and defendant has appealed therefrom.

As we understand the record, two principal grounds are relied upon as reasons for reversal. As to the first, on page 39 of defendant’s brief appears the following: “The court will see from an examination of the policy that was introduced in evidence, by the plaintiffs that it covered only the trucks and equipment that was owned by E. H. Hoffman, or the Hoffman Lines, and the rider that was signed by defendant-appellant clearly shows that it was to cover only the equipment that was hired by E. H. Hoffman Lines ’ ’; and on page 40: “Therefore, in view of the fact that the plaintiffs’ evidence and exhibits clearly show that the truck that was involved in the accident was a truck that was owned by E. H. Hoffman, and was covered by the American Fidelity and Casualty Company policy and not by the hired car endorsement that was issued under the name of defendant-appellant, there could be no grounds,for recovery in favor of plaintiffs-appellees against defendant-appellant, .and the Court should, at the close of the evidence offered on behalf of plaintiffs-appellées, have directed a verdict in favor of defendant-appellant. ’ ’

A contract of insurance may, and often does, consist of a policy and other instruments or documents incorporated therein by reference; Julius v. Metropolitan Life Ins. Co., 299 Ill. 343; 32 Corpus Juris 1159, sec. 269; and where the provisions of the policy proper, and those of the attached rider or indorsement, are in conflict, the latter will control; Morris & Co. v. Rhode Island Ins. Co., 181 Ill. App. 500; Aetna Ins. Co. v. Sacramento-Stockton S. S. Co., 273 Fed. 55.

In the interpretation of insurance contracts, the rule is to favor the construction which enables the insured to recover for his loss; Midwest Dairy Products Corp. v. Ohio Casualty Ins. Co., 356 Ill. 389; Treolo v. Iroquois Auto Ins. Underwriters, 348 Ill. 93.

The rider by its terms set forth that “the policy to which this endorsement is attached, shall cover the operation of automobile trucks, tractors and trailers of "whatever type owned, leased, or hired by, or operated under contract or agreement with the named assured.” It is thus manifest that the agreement with defendant was to cover plaintiff’s liability in the operation of trucks and trailers whether owned or hired by Hoffman, and under the rule of the authorities cited the terms of the indorsement or rider will govern as against the conditions of the policy to which it was attached, and as it expressly provided for protection to Hoffman on trucks and trailers operated by him, whether “owned, leased or hired” by him, it indemnified him against loss resulting from the collision in question.

The further defense was made that the contract of insurance had been canceled prior to the date of the accident, and at the time of its occurrence was not in force. Hoffman had paid his. premiums for a certain period of time; then, failing to keep up same, the American Fidelity and Casualty Company sought to cancel its obligation to him, for such reason, by mailing him a notice of its purpose and intention. Defendant offered in evidence such letter, or a copy of same, and the court, upon plaintiffs’ objection, refused to admit the exhibit. Such ruling is claimed as error. It does not appear that defendant made any attempt to abrogate or set aside its contract with Hoffman by giving him any notice in writing.

Defendant having made the original policy a part of its contract, adopted all its terms except as limited by the provisions of the indorsement. One of such conditions so adopted was the same right of cancellation, upon the same terms, as that of the American Fidelity and Casualty Company. This was a power which defendant could exercise or waive at its option, and its right in this behalf could not be affected by anything done by the American Fidelity and Casualty Company to which it was not a party.

The record is barren of any fact or circumstance tending to prove that defendant at any time took any steps toward, or made any effort to cancel the contract on its part, and whatever was done by the American Fidelity and Casualty Company in this regard would not inure to the benefit of defendant in the absence of a showing that defendant had been a party to or had assented to such action.

Defendant’s contract of insurance was not dependent, for its continuance or force, upon the coincident existence of the policy issued by the American Fidelity and Casualty Company, and while the terms of the latter, by express reference, became a part of defendant’s agreement with Hoffman, yet it was separate and apart from the contract between the American Fidelity and Casualty Company and its insured, and would not be abrogated by or as the result of the mere fact that the latter had been canceled; International Salt Co. v. Tennant, 144 Ill. App. 30; State ex rel. Schmohl v. Ellison, 266 Mo. 580, 182 S. W. 740. It affirmatively appearing that defendant took no steps in writing to void the policy, it was immaterial what the American Fidelity and Casualty Company did in that behalf, .unassented to by defendant, and the court properly excluded the proffered evidence.

Plaintiffs introduced the contract of insurance, proved payment of the first premium thereon, the occurrence of the loss "insured against, notice to the defendant as required by the policy, and that Hoffman was the party assured. This made a prima facie case entitling plaintiffs to a recovery unless some affirmative defense was interposed; Benes v. Bankers Life Ins. Co., 282 Ill. 236.

The contract of insurance with defendant, fairly construed, covered the risk and subsequent loss. There was no proof that defendant had, in writing, attempted to cancel the policy, and what was done by the American Fidelity and Casualty Company to abrogate its own liability did not in any wise affect the obligation of defendant, which is not shown to have participated therein or assented thereto. This being true, there was no evidence on the part of defendant tending to show a termination of its responsibility, hence the court rightly directed verdicts for the plaintiffs. •

Judgments affirmed.