author: Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Frank J. Link and John T. Miller, Plaintiffs in error.
    Gen. No. 36,921.

      Opinion filed November 20, 1935.
    John L. McInerney, of Chicago, for plaintiffs in error; Bernhardt Frank, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Per Curiam.

By this writ of error it is sought to review the judgment of the criminal court of Cook county, wherein it was adjudged by the court that Timothy J. Crowe, Frank J. Link, John T. Miller and Martin Edelstein were guilty of the crime of conspiracy in manner and form as charged in an indictment against them and others. Crowe and Link were sentenced to the penitentiary for a term of years not to exceed the maximum fixed by statute for the crime of conspiracy, Miller was sentenced to a term of six months in the house of corréction together with a fine of $2,000, and Edelstein to a term of three months in the house of correction together with a fine of $2,000. Crowe died since the suing out of the writ of error herein, and the writ as to him has been dismissed. Edelstein entered a motion in the trial court to vacate the judgment, and for a new trial, which motions were allowed, and the indictment was thereafter nolle prossed as to him. The surviving plaintiffs in error are Frank J. Link and John T. Miller. Other defendants included in" the indictment were found not guilty.

At the June term of the criminal court of Cook county for the year 1931, an indictment was returned by the grand jurors of Cook county against Timothy J. Crowe, Frank J. Link and certain other named members of the then board of trustees of the sanitary district of Chicago, together with certain employees of the district, including John T. Miller, Timothy J. Connolly and Martin Edelstein, upon a charge of conspiracy. Connolly was not apprehended. The indictment contained nine counts, of which six were quashed, and the trial was had upon counts one, three and seven. The first count charges that the persons named, conspired together and with divers other persons whose names were to the grand jurors unknown, with the fraudulent and malicious intent to wrongfully, wickedly and unlawfully obtain from the sanitary district of Chicago, a municipality and a body corporate and politic, a large sum of money, to wit, $5,000,000, lawful money of the United States of America, the funds, money and property of the sanitary district of Chicago, by false pretenses. Count three charges that the named conspirators conspired together and with divers other persons whose names were to the grand jurors unknown, to divert $3,000,000 from the use of the sanitary district of Chicago to certain persons by procuring the district to pay to said persons divers large sums of money under the fraudulent and false pretense, that the said persons and each of them were then and there performing work, services and labor for the district and that the district was indebted to said persons therefor when in truth the said persons were not performing and had not performed any services, Avork or labor for the district, and the district was not indebted to them and to thereby divert $3,000,000 from the purposes of the district and to thereby defraud the district. Count seven charges that the persons named, conspired together and with one George L. Chamberlain and with divers other persons whose names were to the grand jurors unknoAvn, to let and award certain contracts at an exorbitant, extortive, unreasonably high and excessive price and cost to said sanitary district of Chicago and at a price and cost greatly in excess of what the aforesaid contracts and each of them could have been and could be let and awarded to responsible persons, firms and corporations desirous of being awarded said contracts, and at a price and cost greatly in excess of what the same could have been and could be let and awarded for at competitive bidding, to thereby defraud the district. In each count it is recited that the alleged conspiracy Avas entered into on December 6, 1928. The indictment Avas returned into open court on the 5th day of June, 1931. Defendants had previously been indicted on May 29, 1930, for the same alleged offenses as those' charged in the indictment of June 5, 1931. The former indictment contained the same number of counts as the last indictment, all of which counts in the first indictment were either quashed or nolle prossed. The latter indictment, upon which the trial was had, recites in each count thereof that the defendants are there indicted on the same charge as is made in the indictment returned on May 29, 1930.

It is insisted by the defendants that the indictment upon which the trial was had is duplicitous, for the reason that each count in the pending indictment sets forth in haec verba the former indictment, and states that the offense charged in the pending indictment is the same crime and offense as charged in the former indictment. The purpose of this allegation in each count of the indictment upon which the trial was had, is apparent.

The Criminal Code of Illinois (Cahill’s Illinois Revised Statutes 1933, ch. 38, ¶ 657, p. 1077) contains the following provision:

“When an indictment, information or suit is quashed, or the proceedings on the same are set aside, or reversed on writ of error, the time during the pendency of such indictment, information or suit, so quashed, set aside or reversed, shall not be reckoned within the time limited by this Act, so as to bar any new indictment, information or suit for the_ same offense. ’ ’

In Judicial and Statutory Definitions of Words and Phrases, 2nd Series, Volume 2, page 189, we find the following: “ ‘Duplicity’ in an indictment or information is the joinder of two or more distinct offenses in one count.” State v. Sherman, 137 Mo. App. 70. (Citing 1 Bish. Cr. Proc. (3d Ed.) par. 432.) There is no joinder of distinct offenses in either of the counts upon which the trial was had. The word “same,” as used in the latter indictment, has a very distinct meaningand can only apply to a similar charge contained in the indictment returned May 29, 1930. We are of the opinion that the method adopted in drawing the indictment, was proper, and did not make it duplicitous. See Swalley v. People, 116 Ill. 247.

The record indicates that the hearing of the cause was had before three judges of the criminal court of Cook county sitting together, without a jury, and defendants urge that the respective judgments, sentences and fines are illegal and void in that they were entered by a branch of the criminal court composed of three judges sitting en banc.

Immediately after the court made its finding that the defendants were guilty, a motion for a new trial was made by the attorney for the defendants in the following language: “We would like to enter a motion as to all the defendants who have been found guilty for a new trial.” No grounds for a new trial were urged, and the motion was denied. Following the motion for a new trial, counsel for defendants made a motion in arrest of judgment without stating any grounds therefor, which motion was denied. Thereafter, and on the same date, motions were made by counsel for defendants to vacate the judgments and the sentences, without stating any grounds therefor, which motions were both denied.

The placita to the record filed in the cause here is as follows:

“United States of America

“Pleas, before a branch of the Criminal Court of Cook County, in said County and State, at a term thereof begun and held at the Criminal Court House, in the City of Chicago, in said County, on the first Monday (being the first day) of February in the year of our Lord one thousand nine hundred and thirty-two and of the Independence of the United States the one hundred and fifty-sixth.

“Present: Honorable Harry M. Fisher Judge of the Circuit Court of Cook County, and Ex-Officio Judge of the Criminal Court of Cook County.

“John A. Swanson State’s Attorney

“William D. Meyering Sheriff of Cook County “Attest: (George Seif Clerk”

The initial recital in the bill of exceptions is as follows :

“Be It Bemembered, that heretofore, to-wit, on the 25th day of November, A. D. 1931, being one of the days of said term of said court, before the Honorable Harry M. Fisher, judge of the Circuit Court of Cook County, ex-officio judge of the Criminal Court of Cook County, and Judges John Prystalski and James J. Kelly, both judges of the Superior Court of Cook County and ex-officio, judges of the Criminal Court of Cook County, the latter two named judges acting in an advisory capacity, without a jury, a jury having been waived by counsel for the respective parties, this cause came on for trial upon the indictment heretofore found herein, the defendants (other than Timothy J. Connolly who was not on trial) having each entered a plea of not guilty.” The bill of exceptions was signed by Harry M. Fisher, judge of the criminal court of Cook county.

Prior to the hearing, and before the court heard evidence, the record shows that the following occurred:

“Mr. Northup: (Assistant State’s Attorney) Let the record read, then, that the defendants, all being in court, waive any and all objections of advantage which may be taken of the fact that the- Chief Justice of this court is presiding in this trial and being advised, or two of the associate judges are sitting in advisory capacity, so that no question can be raised on the record hereafter on an appeal,” etc.

“Judge Fisher: Let the record so show.”

“Mr. Northup: (Assistant State’s Attorney) If the court please, I presume at this time that all. of the defendants outside of Mr. Lawler are in court, which has not been true, I think, before, and I think that each defendant in his own person as well as by counsel ought to waive any objection to the hearing of this case before your Honor with two other members of the bench sitting in an advisory capacity, for the purpose of our record. ’ ’

“Judge Fisher: They have already done that. Is there any objection to repeating the waiver?”

“Mr. Fink: (Counsel for all defendants) None at all.”

The record indicates clearly that the defendants, John T. Miller and Frank J. Link were before the court at this time, and that the method of trial had been and was agreed to by them.

The judgment in the case entered on February 5, 1932, contains, among others, the following recitations :

“Before Hon. Harry M. Fisher, Hon. John Prystalski.and Hon. James J. Kelly, sitting en banc. Judgment. And the Court being fully advised in the premises doth .find the said defendants, John J. Tuohy, J ames N. Whalen and August M. Miller not guilty.

“And the Court doth find the said defendants, Timothy J. Crowe, Frank J. Link, John T. Miller- and Martin Edelstein guilty of conspiracy, etc. in manner and form as charged in the indictment. . . .

“ Therefore, it is ordered and adjudged by the Court that the said defendants, Timothy J. Crowe.and Frank J. Link be and they hereby are sentenced to the penitentiary of this state at Joliet for the crime of conspiracy in manner and form as charged in the indictment whereof they stand convicted, for a term of years not to exceed the maximum term fixed by statute for the crime whereof they stand convicted, and it is further ordered and adjudged that the said defendants Timothy J. Crowe and Frank J. Link be taken from the bar of the Court to the common jail of Cook County, and from thence by the Sheriff of Cook County to the penitentiary of this state, at Joliet, and be delivered to the Warden or Keeper of said penitentiary and the said Warden or Keeper is hereby required and commanded to take the bodies of the said defendants Timothy J. Crowe and Frank J. Link and confine them in said penitentiary according to law, from and after the delivery thereof until discharged according to law, provided such term of imprisonment in said penitentiary shall not exceed the maximum term for the crime for which the said defendants were convicted and sentenced.

“It is further ordered that the said defendants pay all the costs of these proceedings, and that execution issue therefor.

“Defendant, John T. Miller sentenced on finding to the House of Correction for a term of six (6) months, Two Thousand ($2,000.00) Dollars fine and costs.

“It is further considered, ordered and adjudged by the court that the said defendants John T. Miller and Martin Edelstein be each fined in the sum of Two Thousand ($2,000.00) Dollars and pay all the costs of these proceedings. . . .”

In Hall v. Hamilton, 74 Ill. 437, a judgment was entered on a note which contained a warrant of attorney by virtue of which the judgment was confessed, and which authorized the entrance of the appearance of the defendant, the waiver of process and' confession of judgment. There was a further agreement that a cognovit for the amount due might be filed, and there was also an agreement that no writ of error should be prosecuted or appeal taken, and a provision that all errors were released. On appeal a similar question as to the personnel of the court was presented as is presented here, and the court said:

“In this case the placita to the record shows that three of the judges of the Superior Court were present, as also two circuit judges. If the record is true in this regard, then the decision of all questions was submitted to five judges instead of but one, as contemplated by the law. If that number sat and decided questions, they may have been decided by three of the five, and the decision different from what it would have been had but one judge sat. Hence such an organization of the court is not such as litigants are entitled to have when their causes are tried.

“But the court thus organized is not without jurisdiction. Either of the five judges had jurisdiction to try any and all causes, and the association of the others with him did not detract from or deprive him of the jurisdiction vested in him by the constitution and the statute. The placita to all records in that court, and to transcripts to this court, should show that one judge sat on the trial, who it was, and that he was holding a branch court. But being only error, which may be waived or released, plaintiff in error released it with all others by the cognovit filed by his attorney in fact. ’ ’ A special concurring opinion by Justice Scott in which Justice Sheldon joined, was filed in the cause, and is as follows:

“The Superior Court of Cook County is composed of three judges, and it is proper the placita should show how many of them may be present on the day fixed by law for the convening of the court, or at any other time during the term. This is all the office the plácito,' performs. The proceedings are to be had in the Superior Court, and hence any order made by either of the judges in the trial of the cause will be presumed to be authorized by law. Commonly, the bill of exceptions will show before which judge the cause was tried. The fact the clerk in making up the transcript may certify that any particular number of judges were present, cannot vitiate the record. It' is sufficient if it shall appear by the record the cause was heard before either of the judges of the Superior Court, or any other judge authorized by law to hold a branch of that court.”

In Holland v. People, 132 Ill. App. 449, the plaintiff in error was charged with assault and battery, a misdemeanor, as is the case here. It is stated in the opinion in that case that “counsel for defendant stated in open court in the presence of the defendant that it would not be possible for him-and the defendant to be present the next morning, and consented that the jury should be instructed without either of the parties or counsel being present, and requested the - court to explain to the jury the reason for their absence. ’ ’ The jury returned a verdict finding the defendant guilty of an assault. A fine was imposed by the court, to which the defendant objected. Further, in its opinion the Appellate Court said that “The record in this case shows that the People asked that the jury assess the fine if they should find the defendant guilty, as provided by the statute in appealed cases, and the defendant, by his attorney, thereupon stated that ‘the jury should pass solely upon the question of guilt, and if the defendant was found guilty the fine was a matter for the court. ’ This is only a misdemeanor. In a misdemeanor, the defendant may waive any of his rights on the trial. He could have waived trial by jury and could have been tried and found guilty and had a fine assessed against him by the court. If the defendant can now take advantage of the procedure that the record shows he caused, then the defendant, by his attorney, may intentionally mislead the court and take advantage of his own wrong.' A defendant ought not to be permitted to take advantage of the course of procedure which he causes the trial court to pursue. It has been held to be the law that even in cases of felony that a defendant may waive somé of his statutory rights, and that he cannot assign error upon what he has consented and agreed to when he is not damaged thereby.” Citing Bow v. People, 160 Ill. 438; Bruen v. People, 206 Ill. 417.

In view of the fact that these defendants consented to this method of trial pursued, and that after they were found guilty, neither in the motion for a new trial, nor in the motion in arrest of judgment, nor in the motion to vacate the judgment, was any question raised as to the jurisdiction of the court, as constituted, we are of the opinion that they waived any question as to the personnel of the court. Further, the record clearly indicates both by the piadla and by the first paragraph in the bill of exceptions, that the cause was tried before Judge Fisher, and that two other judges sat with him in the hearing. The fact that the clerk in making up the transcript certified that the judgment was the judgment of Judge Fisher and the two other judges, does not vitiate the record.

It is urged that the court erred in refusing to quash count seven, wherein the persons named as conspirators in count one and three are charged with conspiring together and with one George L. Chamberlain, and with divers other persons whose names to the grand jurors were unknown, to let and award contracts at an exorbitant, extortive, unreasonably high and excessive price and cost to the sanitary district of Chicago, and at a price greatly in excess of what such contracts could have been and could be let and awarded to responsible firms, and at a price greatly in excess of what the same could have been and could be let and awarded for a competitive bidding, for the purpose of defrauding the district. Chamberlain was not indicted.

In People v. Smith, 239 Ill. 91, page 107, the Supreme Court said:

“It is also said that the parties to the conspiracy are improperly described in the indictment, it being urged that Robert H. Howe was in the conspiracy, and that as that fact was known to the grand jury he should have been specifically named in the indictment and not been referred to under the general description that he was unknown to the grand jury. This phase of the argument proceeds upon the hypothesis that the persons who enter into a conspiracy so form a part of the offense as to be descriptive of the offense, and that a misdescription of the parties who are engaged in a conspiracy is fatal. The logic of this position is, if too many or too few are named in the indictment there must be an acquittal of all. This cannot be the law. Clearly, if three persons are named in an indictment as conspirators two may be convicted and one acquitted, and if two or more are named in the indictment it would be no defense to prove that someone not named in the indictment was a party to the conspiracy. We are satisfied the great weight of authority is to the effect that the persons engaged in, a conspiracy are not so far a part of the offense as to be said to be descriptive of the offense, and the fact that a conspirator is designated in the indictment as unknown when he is known to the grand jury is not fatal to a conviction. People v. Mather, 4 Wend. 229; Graff v. People, 208 Ill. 312; Cooke v. People, 231 id. 9; Clune v. United States, 159 U. S. 590; McClain on Crim. Law, sec. 981; Joyce on Indictments, sec. 354; Commonwealth v. Edwards, 135 Pa. St. 474; Cohen v. United States, 157 Fed. Rep. 651; United States v. Miller, 26 id. 1255; People v. Richards, 76 Cal. 412.”

We are of the opinion that the court was not in error in entering the order overruling the motion to quash this seventh count in the indictment.

During all the times mentioned in the indictment and in the evidence, Crowe was the president of the sanitary district of Chicago and Link was a member of its board of trustees, and on December 22,1926, the board of trustees of the sanitary district of Chicago adopted the following rule, which provides that:

“The Committee on Employment shall appoint all employees of the District, and the chairman of said Committee shall certify in writing to the head of the proper department and to the clerk the names of all such employees stating the positions to be filled and the compensation to be paid to such employees. Thereupon it shall be the duty of such head of department and the clerk of the District to include the name of such employee upon the pay roll of the District. The Committee on Employment may suspend heads of departments, providing such suspension is reported to the Board, and may discharge any employee when in its judgment it shall deem it advisable for the good of the service. The head of any department may suspend any employee in his department for cause, and shall report his action in the premises at once to the Committee on Employment. The head of any department, in case of emergency, may temporarily employ such agents and employees as may be required by the work of the District and report his action in the premises at once to the Committee on Employment.”

There was also created by the board of trustees of the sanitary district a “Department of Permanent Plants and Structures,” of which the defendant, John T. Miller, was the head. Under this “Department of Permanent Plants and Structures” was what was termed a water meter survey division, and the record shows that in the years of 1926, 1927 and 1928 a large number of persons were placed on the pay roll of the sanitary district of Chicago for the ostensible purpose of making a water meter survey, and that the appointment of these persons all received the approval of the committee of employment and of the board of trustees, after the .committee had received an order and direction from Miller to make such appointment. It is in evidence that before the committee on employment placed any of these persons on this pay roll, it was necessary that they receive a letter from Miller as to each one, authorizing this action. Two hundred and ninety one of these so-called employees testified that they were on this water meter survey pay roll, that they received many thousands of dollars in pay, and performed no services whatever. The names of these persons are all set forth in the record. A typical case is that of one J. A. Egelston who testified that he was on this so-called water meter survey pay roll from April 1st to November 15,1928, at a salary of $200 per month, and that he performed no service for the sanitary district of Chicago, nor did he report for service. This witness also testified that he was so placed on the pay roll at the direction of the defendant Link. The record further shows that there were 162 persons on this so-called water meter survey pay roll, and that each of them received large salaries, and whose services consisted almost entirely of political work, such as copying names from registration lists, addressing envelopes and calling upon certain persons as householders to ascertain whether or not they had water meters in their house, but that their principal work was canvassing for votes for a certain election. During the time mentioned, the record further shows that there were 81 persons employed in the law department of the sanitary district of Chicago, who rendered no services whatever to the district, and that there were 29 on such law department pay roll who received various large sums of money amounting to many thousands of dollars, and who performed but slight service. A typical case is that of one of them received $10,000 for a period beginning August 1, 1927, and concluding November 30, 1928. This person testified that he worked about 30 or 40 days during the entire period.

In addition to the departments mentioned, there existed in the sanitary district at the times mentioned what was called the Illinois Valley Department, which had to do with suits pending against the sanitary district, brought to recover for alleged damage to lands in the Illinois Valley, said to have been caused by these lands being overflowed by waters from the sanitary district. A large corps of so-called investigators were placed on the sanitary district pay roll at large salaries, and most of them testified that they did little or no work for the district. One typical case is that of a person named Schaeffer, who testified that during the period mentioned, he received $5,000 in salary and $1,448 for expenses, and that he performed no service whatever for the sanitary district of Chicago. A large number of others testified to the same effect. These persons not only received considerable sums in salaries, but in addition, were paid large and extravagant amounts for their alleged expenses. In addition to those mentioned, a great many members of the Illinois General Assembly were placed on the pay roll of the sanitary district of Chicago, all of whom testified that they received pay in large amounts. Very few of them performed any service whatever.

In the summer of 1927, and subsequently, a so-called bridle path was constructed by the sanitary district trustees, along what is known as the North Shore Channel of the Sanitary District. The record indicates that the following amounts were spent on this work:

Cinders, 85,886 yards at $1.90 a yard......$162,866.50

Auto trucks hired....................... 291,175.90

Teams hired............................ 7,712.50

Rental of equipment..................... 131,490.50

Repairs to rented equipment............. 8,458.75

Pay rolls............................... 265,683.35

Materials, equipment and expenses....... 201,474.41

Engineers who computed the amount of work on this bridle path, the cost of materials which entered into its construction, and the entire reasonable cost of the construction thereof, placed their figure at $292,375.08. This evidence seems to have gone into the record without objection, and there was no evidence offered to dispute the figures given. There was no advertisement made for bids based on any estimated cost of the construction of this bridle path, but the work was paid for by vouchers in sums of less than $500 each for the entire work. Some of the cinders were obtained from the 39th Street Pumping Station of the sanitary district of Chicago without cost to the person who furnished them, and were afterwards sold by him to the district. Others were obtained from various industrial plants, and as testified by one Frenzel who did the hauling of the cinders, the district was charged a much larger price than the market price of such commodity at the time and place in question.

Employees of the sanitary district working under the defendant Miller, together with others, organized what was known as the ‘‘ City Machine & Engineering Company,” which institution had its place of business in a real estate office at 3953 Roosevelt Road, Chicago. One Pezman, a machinist, testified that in the year 1926 he entered into the employment of the City Machine & Engineering Company. His duties consisted of repairing pumps and engines, and doing general machinist work for the sanitary district of Chicago. He testified that he employed certain union men to assist him; that he worked for this City Machine & Engineering Company part of 1926 and all of 1927 and 1928; that he received pay checks through the City Machine & Engineering Company from the sanitary district of Chicago; that his work, among other things, consisted of seven or eight days’ work at the Glenview Pumping-Station, where he and two other men overhauled two pumps; that he and three or four other men worked at the 95th Street Pumping Station overhauling a hydraulic gauge and sewer pump; that he worked for three or four days at Northbrook overhauling sewer pumps, and seven or eight days at Morton Grove on a gasoline engine and sewer pump. He further testified that he and two other machinists worked a week at the Clifton Avenue Pumping Station, and another week at the Wilmette Pumping Station; that he and three other men worked two or three weeks at Elmwood and at the Lawrence Avenue Pumping Station, where he and three or four men worked for three months overhauling steam turbine engines and pumps, and that the vouchers paid to the City Machine & Engineering Company by the sanitary district of Chicago for these various jobs amounted, to around $168,000. An engineer, familiar with the character of work done by the City Machine & Engineering Company for the sanitary district, testified that for the work done at the Lawrence Avenue Pumping Station, for which a price of $9,056 was charged the sanitary district, that the reasonable price for such work was $4,310, or an overcharge of $4,756.95; that for certain work done for the sanitary district hy the City Machine & Engineering Company, for which the sanitary district paid the sum of $976.62, the reasonable price would be $600, or an overcharge of $376; that for certain work done by this institution for the sanitary district, and for which the district was charged the sum of $3,249.11, a reasonable price would be $1,580, or an overcharge of $1,669.10; that for certain work done on the 39th Street Pumping Station by this institution, for which a charge of $1,808.91 was made, the reasonable charge would be $1,000, or an overcharge of $808.91; that for certain work done on the Morton Grove Pumping Station, for which a charge of $360.45 was made, the reasonable price would be $200.00, or an overcharge of $160.45; that for certain work done on the Glenview Pumping Station, a charge was made of $2,313.65, a reasonable price being $1,285, or an overcharge of $1,028.65; that for work done on the Elmwood Pumping Station, for which a price of $2,931.45 was charged, the reasonable price for this work was $1,556, or an excess of $1,371.43; that for work done on the Northbrook Pumping Station,.. for which a price of $2,421.85 was charged, the reasonable price for this work would be $1,150, or an excess of $1,251.85; that for work done on the Desplaines Treatment Plant, for which a price of $11,641.04 was charged, the reasonable price for this work would be $5,907, or an excess of $5,734.04; and that for. work done on the Calumet Pumping Station, for which a price of $9,417.48 was charged, the reasonable price for this work would be $5,477, or an excess of $4,040.48. This all appears from the record in the case, and-is not disputed by any evidence offered by the defendants. It is stipulated in the record that the City Machine & Engineering Company submitted bills to the sanitary district, for which vouchers amounting" to $80,558.34 were paid by the district in the year 1927, and the sum of $47,691.94 in 1928, aggregating a total of $128,250.28.

Many vouchers were issued to a certain institution known as the Evers-Sauvage Engineering Company, for work done under the defendant Miller, and it was, shown that in one instance the sum of $10,999.25 was paid to this institution for work which was, in fact, done by the General Electric Company at a cost of $5,560.73.

The record is filled with many such items of alleged work done under the control and by the direction of Miller and the employees in his department, for which many thousands of dollars were paid by the sanitary district of Chicago by Miller’s direction, under circumstances very similar to those mentioned.

In addition to the above mentioned items, the record is replete with cases wherein duplicate, triplicate and quadruplicate payments were made for work done through Miller’s department and under his supervision and control, and where the orders for the payment of the work were authorized by Miller. It was stipulated in the trial that the trustees of the sanitary district, which included Crowe, its president, Link, a member, and other trustees, approved the vouchers for the payment of the salaries of all those employed, as well as for work done, as hereinbefore noted. The person who acted as secretary of the committee, Thomas J. Whalen, testified that during these years, the chairman would go over these voucher lists in the presence of the whole board, the roll would be called, and the trustees thereupon voted for their payment.

There was offered and received in evidence a report of an investigation of certain credits in the current bank deposits of the three appealing defendants. That of Crowe amounted to $229,747.01, his wife, $68,750, Frank J. Link and his wife, $99,100, and John T. Miller $103,265.42. The testimony as to these bank accounts was objected to, and its admission is assigned here as error. However, in view of the fact that the case was tried before the court without a jury, whether this evidence was admissible or not, we will indulge in the presumption that the court considered only such evidence as was relevant and proper.

In Radtke v. People, 171 Ill. App. 462, this court said:

“The rule is that, on a trial by the court without a jury, no improper or incompetent evidence will be presumed by a reviewing court to have influenced the court in reaching a decision, where there is sufficient proper evidence to justify the judgment. Merchants’ Despatch v. Joesting, 89 Ill. 152; Kreiling v. Nortrup, 215 Ill. 195; Pratt v. Davis, 224 Ill. 300. There are also many Appellate Court decisions to the same effect.”

Another claim of the defendants is that by proving a number of small and claimed unrelated conspiracies, there can be no conclusion that the defendants are guilty of the acts of conspiracy charged in the indictment. In Ochs v. People, 124 Ill. 399, an indictment ivas returned by the grand jury of Cook county in which it was charged that a number of members of the board of county commissioners of Cook county, together with other persons, were guilty of conspiracy in obtaining money from Cook county by means of false pretenses. It was proved in that case that these commissioners, together Avith other persons, some of whom were indicted and some of whom were not; had let many fraudulent contracts at excessive rates and in an unlawful manner. The indicted persons were not all shown to have been connected with each of the fraudulent lettings, but it was claimed that there was a general conspiracy to defraud Cook county, and the Supreme Court said:

“In every instance where one of these fraudulent contracts was negotiated for in advance by one of the commissioners, or by some third person,' the contract was awarded as had been arranged for, and the commissioners indicted are invariably found voting in favor of the allowance of the false and fraudulent bills rendered.

“Upon an examination of the entire testimony in the case, we can have no doubt that the verdict is fully sustained by the evidence.

“The great contention on the part of the plaintiffs in error is, that though the evidence may tend to show that there were minor conspiracies between certain ones or groups of the accused, it does not show a general conspiracy in which all the plaintiffs in error were engaged, and that whatever the conspiracy may have been, it was not the specific one charged in the indictment.

“As respects the law governing in the proof of a conspiracy, it is stated by Archbold, as follows: ‘A conspiracy is proved, either expressly, or by the proof of the facts from which the jury may infer it. It is seldom proved expressly, nor can a case easily be imagined in which that is likely to occur, unless where one or more of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases, therefore, the conspiracy is proved by circumstantial evidence, namely, by proof of facts from which the jury may fairly imply it. It is usual to begin by showing that the defendants all knew each other, and that a certain degree of intimacy existed between them, so as to show that their conspiring is not improbable; and if to this can be added evidence of any consultations or private meetings between them, then there is a strong foundation for the evidence to be subsequently given, namely, of the overt acts of each of the defendants in furtherance of the common design. But although the proof above mentioned is desirable, because it satisfies the jury as you proceed, and they are better able to apply the evidence of the overt acts when it is afterwards given, yet it is not essentially necessary, as the jury may imply the conspiracy of all from the overt acts of each. ’ Arch-bold’s Crim. Pr. and Pl. 619.

“Mr. Greenleaf says: ‘The evidence in proof .of a conspiracy, will generally, from the nature of the case, be circumstantial. Though the common design is the essence of the charge, it is not necessary to prove that the defendants came, together and actually agreed, in terms, to have that design, and to pursue it by common means. If it be proved that the defendants pursued, by their acts, the same object, often by the same means, one performing one part, and another another part of the same, so as to complete it, with a view of the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy'to effect that object. Nor is it necessary to prove that the conspiracy originated with the defendants, or that they met during the process of its concoction, for every person entering into a conspiracy or common design already formed, is deemed, in law, a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design. ’ 3 G-reenleaf on Evidence, sec. 92.

“We have quoted thus at large, because what is thus announced seems completely to meet and dispose of the point as to there being conspiracies in groups, and not one general conspiracy, and of the conspiracy being of another kind than the one charged, and of objections on that score to the reception of the evidence of individual acts which was received, and to be in justification of instructions which were given.” No evidence was offered or received on behalf of the defendants.

It is insisted that the statute of limitations had run when the new indictment of'June 5,1931, was returned. The statute of limitations, in the prosecution of misdemeanors, is one year and six months. After eliminating the period of the pendency of the old indictment, a computation will show that the return of the new indictment of June 5, 1931, was made well within the limitation period. Further, an examination of the record indicates that many of the acts done in furtherance of the alleged conspiracy occurred well within the limitation period.

We are of the opinion that the finding and judgment are sustained by the evidence, and that the judgment should not be disturbed. The judgment is, therefore, affirmed. .

Affirmed.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    John Sheehy, Appellee, v. Mary Sheehy Koerber and Edward Koerber, Appellants.
    Gen. No. 38,613.

      Opinion filed November 30, 1935.
    Aaron Soble, of Chicago, for appellants; Irving Goodman, of Chicago, of counsel.
    Henry P. Heizer, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

August 27, 1935, John Sheehy filed his complaint, accompanied by an affidavit, against the defendants and the next day, upon his motion, the court entered an order restraining the defendants from opening any safety deposit box “in the Chicago City Bank and Trust Company, or in any other safety deposit vault, ’ ’ and from withdrawing any moneys on deposit in any bank to the credit of either of them. It was further ordered that for good cause shown the injunction issue without bond and without notice. Two days later, August 30th, the defendants entered their appearance and on September 4th following filed their written motions (1) to dismiss the complaint, and (2) to dissolve the injunctional order, setting up specific reasons in support of each motion. September 26th an order was entered in which it is recited that the cause came on to be heard on the motions of defendants, “and the Court having heard the arguments of counsel upon both of said motions and being fully advised in the premises, and the counsel for the defendants . . . having interposed a motion to withdraw said motion in the nature of a demurrer to the complaint, ’ ’ it was ordered that the defendants’ motion to dissolve the injunction be denied, and it was further ordered that defendants be given leave to withdraw their motion to dismiss the complaint, “and that said defendants answer under oath said complaint within fifteen days.” Defendants seek to reverse the order denying their motion to dissolve the injunction.

The complaint alleged that defendant Mary Sheehy Koerber was plaintiff’s daughter and Edward Koerber, the other defendant, her husband; that for many years plaintiff had a savings account in the Continental Bank of Chicago in the joint name of himself and other members of his family, at different times, and that on June 15, 1934, the account was in the joint names of himself and his daughter, Mrs. Koerber, on which date there was on deposit $9,600.62; that for some time prior to June 15th his daughter had been urging him to withdraw his money from the bank and to permit her to put it in some safety deposit box; that at any time plaintiff desired to withdraw any money from the box she would do it for him; that for many years plaintiff had worked as a checker for the Illinois Central Eailroad company and had no opportunity to go to a bank or to a safety deposit box during business hours, and that the entire $9,600 was made up of plaintiff’s savings; that no part of it was contributed by defendant Mary Sheehy Koerber; that the money was in the bank in the joint names of plaintiff and his daughter' for the sole purpose of enabling her to make withdrawals when plaintiff should so desire ; that on or about June 15, 1934, upon his daughter’s earnest solicitation he delivered the savings bank account pass book to her and a note to be given to the bank to permit her to withdraw the entire amount on deposit so that his daughter could place the money in a convenient safety deposit box; that thereafter the daughter informed him she had secured a safety deposit box in the Chicago City Bank and Trust Company and had placed the money in the box where it would remain until plaintiff needed it; that the daughter at no time informed him she had taken any of this money out of the box; that recently, when plaintiff requested his daughter to withdraw some of the money for him she, on one pretext or another, failed, refused and neglected to do so; that he became suspicious; that afterward, through his attorney, he investigated the records .of the recorder’s office and learned.that his daughter, who had been living at 6732 South Lincoln street, Chicago, as a tenant, had, after the withdrawal of the money by her from the box, purchased .the property, the premises being conveyed to her and her husband as joint tenants by the owners of the property; that the records further showed that release deeds had subsequently been filed of record releasing certain mortgages on the property; that plaintiff had no knowledge as to the amount defendants had paid for the property or for the release of the two trust deeds, but that whatever sum was paid by defendants was from plaintiff’s money withdrawn from the deposit box as above stated; that the purchase of the property was without his knowledge, and having been paid for with plaintiff’s money the title to the property was in defendants who held their title as trustee for him.

It was further alleged in the complaint, upon information and belief, that the daughter had not used the entire $9,600 to purchase the real estate and that she still held some of the money in a safety deposit box or in some bank, either in her name or in the joint name of herself and husband; that if defendants were notified of the application for a restraining order they would remove the contents of the safety deposit box and withdraw any balance of money which was either in the box or in some bank and therefore he would be unduly prejudiced. He prayed for an accounting, etc. The further prayer was that the injunction issue immediately without notice and without bond; that he had no real estate and that all of his savings was the money in the box and that he was unable to give a bond.

Defendants contend that the order is wrong and should be reversed because the affidavit in support of the complaint was wholly insufficient; that a charge of perjury could not be predicated upon it in case it were held that the injunction had been wrongfully issued.

Defendants, having filed a motion to dismiss the complaint which takes the place of the old demurrer, and having set up in the motion specific grounds that went to the merits of the complaint, and having also filed a motion to dissolve the injunction in which they set up specific grounds, some of which went to the merits of the complaint, the question whether the complaint was properly verified or whether the injunction order was issued without bond and without notice, is immaterial, because, by the motions, the defendants admitted the allegations of the complaint to be true. Williams v. Chicago Exhibition Co., 188 Ill. 19; Spiegler v. City of Chicago, 216 Ill. 114; Decker v. West, 273 Ill. App. 532. But counsel for defendants say that when the court entered the order denying their motion to dissolve the injunction, and as a part of the same order they withdrew their motion to dismiss, therefore the motion was out of the case. By the order the defendants were given leave to withdraw their motion to dismiss and they were ruled to answer within 15 days. The effect of this was that the defendants confessed their demurrer was wrong and that the bill was sufficient to require an answer. And defendants ’ motion to dissolve the injunction, as stated, also specified grounds that went to the merits of the bill. For these reasons, the issuance of the injunction without notice and without bond and the claimed insufficiency of the verification were waived.

Defendants further contend that the injunctional order was too sweeping; that the complaint was insufficient because there was no allegation that the defendants were insolvent or unable to respond in damages. The contention cannot be sustained. Plaintiff alleged that the $9,600, which was all the money he had, was taken by his daughter and part of it invested in the real estate, and he was informed and believed that part of it was still in some safety deposit box or bank, and since it was alleged that the money was his, there was no error in enjoining defendants from withdrawing any of it they might have in a safety deposit box or bank.

Defendants made a further point that “A joint owner of a savings account with right of survivorship is entitled to withdraw any or all of the money from said bank for his or her own use. ’ ’ And in support of this counsel say, “the complaint on its face does not allege a cause of action. Giving the plaintiff the benefit of any doubt, the most that the complaint alleges is that the plaintiff made a gift of his hank account to his daughter and now he wants to retract or revoke a completed gift.” There is no merit in this contention. There is no allegation of a joint ownership of the savings account and there is no right of survivorship involved nor was there any gift of the money to the daughter. The allegations of the complaint are that the money belonged to plaintiff and that it was kept in the joint names of himself and daughter because he was unable to go to a bank or a safety deposit box during working hours, and that the account was in their joint names, so that she could withdraw the money when he would request her to do so.

The order of the superior court of Cook county appealed from is affirmed.

Order affirmed.

McStjbely, P. J., and Matohett, J., concur.


author: Mr. Presiding Justice Huffman

text:
    Farmers State Bank of Belvidere, Appellant, v. George W. Meyers, Appellee.
    Gen. No. 8,955.
    Opinion filed December 5, 1935.

      Wm. Biester and F. A. Oakley, both of Belvidere, for appellant.
    William L. Pierce and Alexander J. Strom, both of Belvidere, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is a suit brought by appellant upon an alleged guaranty contract to which appellee was one of the signers. The cause was tried before the court, without a jury. Appellant prosecutes this appeal from the judgment of the trial court.

Appellant sets out no errors relied upon for a reversal, as required by the rules of this court. The present Practice Act in force in this State does not require an assignment of errors. Nor did the Practice Act of 1907 contain any such provision. This was then required by Rule 11 of the Supreme Court and by Rule 12 of this court. Rule 9 of this court, which was adopted June 25, 1934, and in force at the time of the prosecution of this appeal, provides that the brief of appellant shall contain, “the errors relied upon for a reversal,” and designates where the same shall appear. Rule 39 of the Supreme Court as adopted at its December term, 1933, contained a like provision, which was amplified by amendment at the June term, 1935, thereof.

There is no attempt made by appellant to set out in its brief the errors relied upon for a reversal. Under such circumstances there is nothing presented to this court for review. Butters v. Chicago, B. & Q. Ry. Co., 154 Ill. App. 275; Frick v. Aurora, E. & C. Ry. Co., 154 Ill. App. 277. Errors relied upon for a reversal must be assigned. This is not a mere matter of form to be considered waived if not objected to, but is one of substance. Ditch v. Sennott, 116 Ill. 288; Rosin v. Wilde, 80 Ill. App. 58; Jesse French Piano & Organ Co. v. Meehan, 77 Ill. App. 577. Such assignment performs the same function in the court of review as a declaration in the trial court. People v. Sleight, 302 Ill. 45; Great Northern Refining Co. v. Jeffris Lumber Co., 308 Ill. 342; Cass v. Duncan, 260 Ill. 228; Ditch v. Sennott, supra.

An examination of the record and abstract discloses no assignment. The present rules governing the assignment of errors have merely changed the place where the same shall be set out. Instead of being attached to the record and printed in the abstract, such errors as are relied upon for reversal by the appellant are now to be set out at the conclusion of appellant’s statement of the case, in his brief.

It has long been the rule that a case submitted to a court of review for final decision without an assignment of errors, will be dismissed. Village of East Peoria v. Lake Erie & W. R. Co., 237 Ill. 93; Aetna Life Ins. Co. v. Sanford, 197 Ill. 310; Burrall v. American Telephone & Telegraph Co., 217 Ill. 189; Schaeffer v. Burnett, 217 Ill. 84.

This appeal is therefore dismissed.

Appeal dismissed.


text:
    Margaret F. Cox, Appellant, v. Mills D. Dewey, Appellee.
    Gen. No. 8,979.

      Opinion filed December 5, 1935.
    Hamilton, Black & Klatt, of Peoria, for appellant; L. M. Burkey, of Toulon, W. J. Black and D. C. McCarthy, of Peoria, of counsel.
    F. B. Brian, of Toulon, and Harry C. Heyl, of Peoria, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action brought by appellant against appellee for money had and received, wherein it is alleged that on March 16, 1929, appellant appointed appellee her agent to hold certain money for her, which was to be returned by appellee upon her request. Appellant alleges the request for payment and failure of appellee to pay. At the close of the plaintiff’s evidence, the court instructed the jury, on motion of defendant, to find the issues for the defendant. The action of the court in this respect was based upon evidence disclosing that the agreement or contract alleged by plaintiff to have existed as between herself and appellee, was an illegal contract and unenforceable at law.

The appellant was a resident of Peoria county, Illinois, living near the village of Laura, where she had lived practically her entire lifetime. Her husband died in the. month of August, 1928, leaving several thousand dollars in life insurance, payable to appellant. Appellant was indebted to the Laura bank, which indebtedness was reduced to a judgment. She had paid this bank part of the insurance money, as well as turning over certain other property. She states, “I paid and paid out of my insurance money until it was gone down to about a third, and I could commence to see then that I wasn’t going to have a cent left, and that’s when I went to Mills Dewey and talked to him.” The evidence of appellant discloses that the purpose of her negotiations with appellee was to avoid the payment of indebtedness. It appears that she never at any time had the money on deposit in her own name. She first placed the same in a bank at Wyoming in the name of her brothers-in-law, Cox brothers. The money was next turned over to James Colgan, another brother-in-law. Finally, in the month of March, 1929, she arranged with appellee to turn the money over to him. Subsequently, she moved to the State of Michigan, and from there moved to the State of Nebraska. During such time she received small payments of money from time to time from appellee. Prior to the bringing of this suit she returned to Peoria county and was living with a son, where she states, she was “hid away.” We do not believe any further or more detailed discussion of the evidence would serve any good purpose. We have examined same fully and are satisfied with the action of the trial court thereon.

Courts owe it to public justice and to their own integrity to refuse to become parties to contracts essentially violating morality or public policy, by entertaining actions upon them. It is a judicial duty to turn a suitor upon such a contract out of court, whenever and however the purpose and character of the contract is made to appear. Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466, 484. It has consistently been held that where a transaction is tainted with' fraud, as between the parties to it, a court will not-assist either but will leave the parties in the position in which they have placed themselves. Miller v. Marckle, 21 Ill. 152. In the case of Brady v. Huber, 197 Ill. 291, and at page 296 of the opinion, the following statement is made: “It is a rule having universal recognition that though creditors of a fraudulent grantor may invoke the aid of the courts to have a conveyance made for the purpose of hindering and delaying them in the collection of their demands declared inoperative as against their rights and interests, the law will not provide a remedy which either of the guilty parties, if in pari delicto, can avail of against the other, either to disturb or enforce the conveyance. ’ ’ Whatever parties to an action have executed for fraudulent or illegal purposes, the law will refuse to lend its aid to enable either party to disturb, and whatever the parties have fraudulently or illegally contracted to execute, the law will refuse to enforce such contract, and in both cases will leave the parties where it finds them. Kirkpatrick v. Clark, 132 Ill. 342, 347, 348.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice McSurely

text:
    Dorothy Farley, a Minor, by Charles Farley, Her Parent and Next Friend, Appellee, v. Bradford Mitchell, Appellant.
    Gen. No. 38,294.
    Opinion filed December 16, 1935.
    Robertson, Crowe & Spence, of Chicago, for appellant ; Burt A. Crowe, of counsel.
    Frederick A. Gariepy, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Dorothy Farley, hereafter called plaintiff, while riding as a guest in an automobile driven by defendant, was injured in an accident; she brought suit against Bradford Mitchell and his father, the owner of the automobile which Bradford, then 15 years of age, was driving with his father’s permission; upon the trial before the court the cause was dismissed as to the father and judgment was entered against the remaining defendant, Bradford Mitchell, for $2,630.

Defendant filed a motion to vacate the judgment on the ground that Bradford Mitchell was a minor and no guardian ad litem had been appointed for him; the judgment was vacated, a guardian ad litem was appointed who filed an answer on behalf of defendant; the case was again tried before another trial judge without a jury and the issues were again found against the defendant and judgment was entered against him for $2,500, from which this appeal is prosecuted.

Plaintiff, then 14 years of age, was a guest of the defendant in the automobile at the time and cannot recover damages unless the evidence proves that the accident was caused by the wilful and wanton misconduct of the defendant in operating the automobile which caused the accident and injury to plaintiff. Ill. State Bar Stats. 1935, ch. 95a, ¶ 47 (5). The only question presented is whether the trial court properly found with the plaintiff on this proposition.

The accident happened about :30 on the morning of April 2, 1934. A party of young people living in La-Grange, Illinois, went to a dance at Edgewood Valley Club, which is near Joliet; they went to the dance over the Willow Springs road, a concrete highway 18 or 20 feet wide; the shoulders on either side were freshly graded and wet, and at intervals of about 50 or 75 feet signs were placed on the shoulders reading, “Soft Shoulder. Drive carefully. ’ ’ These signs were visible to the members of the party as they went toward the Edgewood Valley Club.

They returned about 1:30 a: in. along the same Willow Springs road, going northerly toward LaGrrange; plaintiff was riding in the front seat of the car driven by the defendant and in the rear seat were Kelso Middleton and Lura Fellows; in front of them was another car northerly bound, driven by Jimmie Nelson, containing several young people who had also been at the club and dance; the weather was then dry and clear and it was very dark; the cars were lighted and the warning signs on the road were discernible; both cars were going along at about 35 miles an hour; the young people were in no particular hurry to get home. Defendant first attempted, without success, to pass the Nelson car, and then speeded up his car to 50 miles an hour attempting to pass the Nelson car. Plaintiff testified that she then felt “kind of scared.” Middleton, who was in the rear seat, remonstrated with defendant and asked him to slow down, but defendant continued without slackening speed and without giving any warning to the Nelson car of his attempt to pass it. The two left wheels of defendant’s car ran off onto the soft shoulder; defendant then turned the wheel to the right to get back to the concrete pavement, which was three or four inches higher than the dirt shoulder; the car ran to the right, in front of the Nelson car, forcing it off the road to the right; without slackening the speed of his car defendant ran off the concrete pavement on the right side, then careened back across the road to the left, and then again to the right shoulder, running into a ditch and then into a telephone pole on the right side of the road which was about 50 yards (or 150 feet) from the point where he originally left the pavement. Defendant’s car was in good mechanical condition, with new tires.

Plaintiff was injured in the abdomen, necessitating the removal of the spleen by surgical operation. The extent of the injuries and the amount awarded are not questioned.

A great deal of language has been used in many eases in the attempt to define with mathematical certainty the difference between ordinary negligence and wilful and wanton negligence. More recent cases have held that this is virtually impossible; that whether an act is wilful and wanton depends upon the particular circumstances of each case. In Bernier v. Illinois Cent. R. Co., 296 Ill. 464, the court said: “It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a wilful or wanton act.” And in Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, it was said: “What degree of negligence the law considers equivalent to a wilful or wanton act is as hard to define as negligence itself, and in the nature othings is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. ’ ’ However, the decided cases seem to agree that one of the factors distinguishing a wilful and wanton act is, such absence of care for the person of another as exhibits a conscious indifference to consequences. Lake Shore & Michigan Southern Ry. Co. v. Bodemer, 139 Ill. 596; Walldren Express & Van Co. v. Krug, 291 Ill. 472; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; Brown v. Illinois Terminal Co., 319 Ill. 326; Streeter v. Humrichouse, 357 Ill. 234. Mantonya v. Wilbur Lumber Co., 251 Ill. App. 364, involved the collision of two cars; the court said that the defendant’s truck came at a high rate of speed, without régard to the plaintiff’s rights or safety, and held that such conduct, exhibiting indifference to consequences, “makes a case of constructive or legal wilfulness.” Foale v. Linsky, 279 Ill. App. 58, involved a guest riding in defendant’s automobile where defendant’s son attempted to pass a street car and he was warned by plaintiff not to drive so fast. It was held that the jury was justified in finding defendant guilty of wilful and wanton negligence. In all of the above cases and many others which might be cited, it was held that the question of the conduct of the defendant was for the determination of the jury.

Counsel for defendant cites many cases from other jurisdictions, in which, under other circumstances, the defendant has been exonerated from the charge of wilful and wanton negligence, but such cases are not helpful in the present instance. In the recent opinion in McGuire v. McGannon, 283 Ill. App. 293, cited by defendant, the driver of the car, late at night, was going along an unfamiliar road and did not observe that the concrete pavement ended and the car proceeded onward and into a ditch. It was properly held that the driver was not guilty of wanton and wilful conduct in the operation of the car.

In the instant case the conduct of the defendant on a dark night, in recklessly speeding up his car to ah excessive speed, not because of any urgency to reach a destination but solely to outstrip the forward car, and against the protest of one of his guests and against the warning signs to drive slowly, and running onto the road shoulder which he knew was soft, showed an indifference to consequences which makes a case of legal wilfulness and wantonness in the operation of his car.

The case before us has been heard by two trial judges, and in both trials the issues of fact have been found against the defendant. Unless the reviewing court can say that the finding in the present case was manifestly erroneous it should not reverse. Nevius v. Gourley, 97 Ill. 365. We see no substantial reason for disagreeing with the finding of the court, and the judgment is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


text:
    The P. & O. Banking Corporation, Ltd., Appellee, v. Wurm Brothers Company, Appellant.
    Gen. No. 38,303.
    Opinion filed December 16, 1935.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellant; Henry J. Brandt and Henry Gr. O’Donnell, both of Chicago, of counsel.
    Nat. M. Kahn', of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment for $2,607.19 entered against it after its amended affidavit of merits had been stricken.

The controversy arises out of the delivery to defendant for sale of 480 cases of cashew kernels for which defendant gave its receipt, in which it undertook to deliver to plaintiff the proceeds of any sale. Plaintiff’s statement of claim alleged that the merchandise was sold and defendant did not account to it for the proceeds. Defendant admits that it received the merchandise, signed the receipt in question, has sold the merchandise and has not delivered the proceeds to plaintiff. Its defense is that plaintiff was not the owner of the merchandise; that it ascertained the true owner and has paid to him the proceeds of the sale.

The receipt signed by defendant was headed by the words, “Trust Receipt,” and defendant cites cases tending to show that this is not in fact a trust receipt. The document was drawn in New York, dated May 25, 1933. By the New York statute, one who delivers merchandise to another to be sold is called an “entruster,” which is defined by the statute to mean “the person who has or directly or by agent takes a security interest in goods, documents or instruments under a trust receipt transaction.” Parenthetically, we might say that the Illinois statute, entitled “Uniform Trust Receipts Act,” passed at the last session of the legislature, defines an “entruster” in the same way. Ill. State Bar Stats. 1935, ch. 140a, ¶ 13, sub-par. (3). In Simons v. Northeastern Finance Corp., 271 Mass. 285, a trust receipt is said to be an instrument in writing whereby one who has advanced money for the purchase of imported merchandise takes title and delivers possession to the importer upon an agreement in writing to hold the merchandise in trust for the entruster until he is paid. There are other citations to the same effect. Counsel for each of the parties seem to agree that the receipt signed by the defendant was not a true trust receipt, as defined, and we shall consider it as an ordinary receipt and contract.

Defendant says that it was entitled to show that plaintiff had no security interest in the merchandise in question and therefore defendant could introduce parol evidence as to the real owner who had received the proceeds of the sale. Plaintiff replies that the label on the document — ‘‘Trust Receipt” — is unimportant; that it is the terms of the contract which must prevail, not an arbitrarily applied name; that the document is a combination of a receipt and contract, and that the law applicable is that, while the receipt of the merchandise may be questioned by parol testimony, the contract obligations cannot be changed.

In the instant receipt appears repeated acknowledgment that plaintiff owned the merchandise. The language is, “said merchandise . . . being the property of the Company” (plaintiff) for sale only, “with the understanding that after sale we will remit the proceeds” to plaintiff. The defendant agreed to hold said merchandise in trust for the plaintiff subject at all times to the order of plaintiff, and not to pledge or in any other way to use the same or the proceeds thereof for the account of defendant or for any purpose other than above specified. Should said merchandise be released for sale and actually sold the defendant agrees to notify the plaintiff forthwith, and immediately upon receipt to deliver to plaintiff the proceeds, whether in the form, of money or otherwise.

Defendant further agreed to keep the merchandise and “the proceeds thereof . . . separate and capable of identification as the property of the” plaintiff, and also by all entries in its books and records, clearly to indicate that the property or proceeds belonged to the plaintiff. There was also an agreement that plaintiff might at any time cancel this agreement and take possession of the merchandise, which defendant agreed to surrender, and that no rights of the plaintiff should be waived “unless in writing endorsed hereon and properly signed by the” plaintiff. This document was duly signed by the defendant.

By its amended affidavit of merits defendant admits the receipt of the merchandise but denies that plaintiff was the owner; it alleges that one N. Subramonia Iyer was the owner and that he had requested plaintiff to act as his agent in the disposition of said merchandise; that Iyer signed a bill of lading in which it was ordered that the merchandise should be delivered to plaintiff; that plaintiff advanced no sums of money to Iyer in connection with the transaction, neither was Iyer indebted to it; that after defendant had sold the merchandise Iyer claimed the proceeds as owner; that defendant “then made an investigation of the facts and found” that Iyer was the true owner; that this defendant paid Iyer in full for the merchandise.

Defendant’s position is that it is not bound by the recitals in the receipt that the merchandise is the property of the plaintiff, and it may disregard the obligations to account to plaintiff for the proceeds, but may deal directly with the owner; that these provisions may bind the plaintiff but not the defendant. Cases cited to support this are not in point. A typical case cited by defendant is Ludeke v. Sutherland, 87 Ill. 481, where plaintiff sold to defendant a tract of land supposed to contain about 140 acres for a certain price; there was an oral agreement that if a survey showed the tract to contain less or more than 140 acres this price would be adjusted according to the survey; the deed described the land as containing 140 acres “more or less”; after the deed had passed a survey was made showing approximately nine acres in excess of 140; plaintiff brought suit at the price agreed on for this excess and had judgment, which was affirmed. . It was held that parol proof did not tend to change or modify the legal effect of the writings. Other cases cited by defendant may also be distinguished from the instant case.

Supporting plaintiff’s position is Loeb v. Flannery, 148 Ill. App. 471. There defendant Flannery gave a written receipt to Loeb acknowledging receipt of “one thousand dollars to be held by me for him (Loeb) and to be returned to him by me upon ten days’ notice in writing.” The defense sought to show by parol testimony that the money was in fact to be paid to a third party. The court held that the document was both a receipt and a contract, calling for the application of the rules of evidence applicable to both; that in so far as it was a receipt for money it was open to contradictory evidence, but parol testimony would not be admissible to change the obligation of defendant to return the money to plaintiff.

The attempt of the defendant in the instant case is to change its written undertaking to account to plaintiff for the proceeds of the sale by substituting a third party as the object of its obligation. Parol evidence to effect such a change would violate the established rule stated in 22 C. J. 1234, note 26, that “the general rule against the admission of parol evidence to vary or contradict a written instrument has been held to preclude the admission of evidence to show that the real parties to the instrument are other than those whose names appear in or are signed thereto.”

The rule that under some circumstances parol evidence may be introduced to prove an undisclosed principal is not applicable here. In Barker v. Garvey, 83 Ill. 184, cited by defendant, it appears that the contract was ambiguous as to who was to receive the money. There is no ambiguity in the present contract, especially with reference to the parties and their obligations thereunder. Defendant was clearly bound by its admissions in the contract of ownership in plaintiff, and by its agreements to account to it, and parol evidence is not admissible to change these recitals. Wynkoop v. Cowing, 21 Ill. 570, and cases therein cited.

We see no reason to disagree with the conclusion of the trial court, and the judgment is therefore affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice McSurelt

text:
    In re Wheeling Drainage District No. 1. William Buesing, Appellant, v. Henry Grandt et al., Appellees.
    Gen. No. 38,404.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Theodore A. Kolb, of Chicago, for appellant.
    Morris Aronson, of Chicago, for appellees.
   Mr. Presiding Justice McSurelt

delivered the opinion of the court.

Objections were filed to the reports of the Commissioners of the Wheeling Drainage District; these came on for hearing before Judge Isley in the county court; the attorney for the objectors filed a motion for a change of venue; this motion was denied and the hearing on the reports and objections proceeded. The objectors appeal to this court, questioning only the action of the trial court in denying the motion for a change of venue.

The commissioners, who are appellees, first say that a change of venue in these proceedings before the county court is not covered by the Change of Venue Act, which affects only civil suits or proceedings in law or equity (Ill. State Bar Stats. 1935, ch. 146, sec. 1); that these proceedings are none of these.

The Wheeling Drainage District was organized by decree of the county court of Cook county many years ago under the Drainage Act (ch. 42, secs. 41 and 42) and commissioners were appointed by the court. Sections 41 and 42 of the act provide that these commissioners shall, as often as once in each year or as much oftener as the court shall require, make a report to the court showing the amount of money collected by them and the manner in which it has been expended. It is also provided that due notice shall be given on a hearing of the report and any objections thereto. The court has power upon failure of the commissioners to report to the satisfaction of the court, on the application of any person interested or without such application, to remove such commissioners from office. These sections also provide that the itemized accounts shall be audited by the county court and subject to its approval. It has been held that such drainage commissioners are officers of the court. Hunt Drainage District v. Cole, 283 Ill. 105.

It is argued very plausibly that the relationship of the commissioners in a hearing under sections 41 and 42 of this act is that of an administrator and his subordinates where the administrator requests a report from his subordinates and makes suggestions and amendments, and requires explanations; that the ordinary legal procedure is not followed in arriving at conclusions, and that such hearings are independent of the Change of Venue statute. The appellant cites in opposition to this position People v. Scott, 326 Ill. 327, which involved an inquest into the sanity of the defendant who had been sentenced to death for murder. It was held that such an inquest was a civil action and covered by the Change of Venue statute. This case is not in point. The better argument seems to support appellees’ position that the venue statute could not be applied to the hearing upon the commissioners ’ report and objections.

However, we base our conclusion on firmer grounds. Section 9 of the Change of Venue Act provides that when there are two or more plaintiffs or defendants a change of venue shall not be granted unless the application is made by at least three-fourths of the parties. Here there were 20 objectors. Only four made the application for a change of venue, so that the petition failed for lack of the necessary signatures. Tanner v. Clapp, 139 Ill. App. 353; Gourley v. Pierce, 182 Ill. App. 609; Ossey v. Retail Clerks’ Union, 326 Ill. 405. Appellant says that they subsequently obtained the requisite number of consents, but these were presented over two weeks after denial of the motion for change of venue, which was then too late.

A reading of the record justifies the action of the court in denying a change of venue. Judge Isley first sat in these hearings on December 28, 1934; various continuances brought the hearing to January 18, 1935, at which time the hearing was set for March 25th; on that date, counsel for appellant stated that he could not proceed without the presence of the commissioners who had made the report and at his request the hearing was continued until March 28th; on that date the hearing commenced; all of the parties were present, the matter was discussed at length, counsel for the objectors stating his position; the court asked for evidence on the objections; counsel for the objectors then asked for a continuance; the court denied this, saying' that the board of commissioners were present and that the matter had been in the court for months; at this point counsel stated that he wished to file a petition for a change of venue, saying that he had just become satisfied that the court could not give him a fair hearing.

It has been repeatedly held that where a court has already commenced a hearing and has by his rulings indicated his views, it is too late for the party against whom such rulings have been made to move for a change of venue. It would be improper for counsel to try out the attitude of a trial judge by questions and discussion and argument, and if the court was not in harmony with counsel’s views to then assert that the court was prejudiced and that a change of venue must be allowed. This practice will not be countenanced. It is the established rule that after a trial of a cause has commenced or is about to be commenced, it is too late to grant a petition for a change of venue. Hudson v. Hanson, 75 Ill. 198. In Richards v. Greene, 78 Ill. 525, it was said that to allow a change of venue after a trial has commenced or is about to be commenced would lead to endless delay, is not authorized by the statute and cannot be encouraged. Other cases to the same effect are Thompson v. American Horse Breeders’ & Importers’ Ass’n, 114 Ill. App. 131; Ford v. Ford, 189 Ill. App. 468; Epstein v. Fort Dearborn Motor Cartage Co., 207 Ill. App. 321.

For the reasons indicated the motion for a change of venue was properly denied. As the action of the court on the motion for a change of venue is the only-matter presented in appellant’s points and argument, we have considered nothing else. The order denying the motion for a change of venue was proper and it is affirmed.

Affirmed.

Hatchett and 0’Connor, JJ., concur.