text:
    Lewis J. Craft, Appellee, v. Bankers Life Company, Appellant.
    Gen. No. 8,580.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    O’Harra, O’Harra & Roeth, for appellant.
    Hartzell, Cavanagh & Martin, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Lewis J. Graft, appellee, filed Ms bill in equity to the March term, 1931, of the circuit court of Hancock county against Bankers Life Company, appellant, upon two policies of insurance.

The bill of complaint sets out the two policies of insurance, together with certain agreements for disability benefits; alleges that after the issuance of the said policies complainant became totally and permanently disabled, and that by virtue of the disability benefit agreements defendant paid certain benefits for a number of years and waived the payment of premiums on the policies during that time. The bill further alleges that thereafter, on or about September 1,1930, the defendant refused to continue to pay benefits and waive premiums although requested so to do; alleges that complainant is still totally and permanently disabled and the defendant is about to cancel the policies for nonpayment of premiums claimed to be due. The bill prays that the court decree that said agreement, as provided for in said policies and agreement for disability benefits, may be in full force and effect and carried into execution and that defendant may be decreed to waive further payment of premiums on said policies and that defendant be enjoined from canceling the policies for the nonpayment of premiums.

An answer was filed by the appellant, admitting the issuance and delivery of the policies as set out in the bill and that the agreements for disability benefits were a part of the said policies. The answer further admits that for a number of years complainant was totally and permanently disabled, and that the defendant paid the benefits and waived the payment of premiums as provided in the said agreements for disability benefits until on or about September 1, 1930. The answer further admits the stopping of payment of benefits and waiver of premium and the refusal to continue the same as the result of an examination of the complainant on or about September 1, 1930.

The answer alleges that complainant has recovered from his disability and denies that he is now. totally and permanently disabled within the meaning of the agreement for disability benefits.

The answer alleges that the court is without power, jurisdiction or authority in the premises and denies that the complainant is entitled to the relief prayed for.

The appellee filed formal replication to the answer and the cause was referred to the master in chancery, to take and report the evidence, together with his conclusions of law and fact.

Proofs were heard before the master and the master made a report and among other things found that on September 1, 1930, complainant had not recovered from said disability and had not become able to. perform any work or engage in any occupation for remuneration or profit, and that complainant is now and has been for more than two years prior to filing bill of complaint, totally and permanently disabled within the meaning of the agreement; further finds that the disability benefits provided in said contracts of insurance have not in any way been canceled and that the same are now in full force and effect; that the complainant has proven the material allegations of his bill; that the equities of the case are with the complainant and that he is entitled to the relief prayed for.

There were objections made before the master, which were overruled, and the objections, having been made exceptions before the chancellor, were heard and overruled and a decree entered.

The decree ordered that the two policies of insurance involved in this proceeding be declared to have been on March 3, 1931, in full force and effect, including the contract for disability benefits attached to each of said policies and it was ordered that the defendant pay to'the complainant a sum equal to one per cent of the face of each of said policies for each calendar month, beginning as and of the 1st day. of September, 1930, and down to the 3rd day of March, 1931, which amounted to the sum of $700, .and that the defendant pay the costs of this proceeding. It was further ordered that judgment be and the same was thereby rendered in this cause against the defendant and in favor of the complainant for the sum of $700, and the costs of this proceeding, and execution was ordered and directed to issue out of the court for the same.

It was further ordered that the defendant waive all premiums due on said policies or either of them from September 1, 1930, to March 3, 1931.

It was further ordered “that the defendant be and it is hereby” perpetually enjoined and restrained from canceling said policies of insurance or either of them, because of the nonpayment of any premiums upon the same due prior to the 3rd day of March, 1931.

Appellant has appealed.

It is contended by appellant that there is no evidence in the record tending to show that appellant was about to cancel said policies of insurance for nonpayment of premiums and therefore the decree should be reversed. .

From the proofs it appeared that appellant sent the following letter to appellee, under date of September 24, 1930: “We have received the report of our examining physician, Dr. Pearce, and have also completed certain other independent investigation of your claim for total disability benefits, and as a result thereof, we are of the opinion that you are no longer entitled to benefits.

“Total disability which wholly prevents you from performing any work or engaging in any occupation whatsoever is a condition that must exist if you.are to receive benefits, and it is not our opinion that you are so totally disabled at this time. Please understand that the mere refraining from work is not evidence of total disability, in the absence of a condition serious enough to wholly prevent you from working.

“In these circumstances, we are discontinuing the payment of further benefits and the check which you received as of September 1st is the last payment to be made. Tour policies are being restored to a premium paying basis and future premiums should be paid as they become due, if the contracts are to remain in force. The next annual premiums will be due February 10,1931.

“Should you at sometime in the future again become totally disabled strictly within the provisions of the contract, we will gladly consider another claim, provided your insurance is in good standing.”

This was ample notice to appellee that all disability payments would end with the September payment and unless premium payments were made February 10, 1931, the policies would be canceled, and fully warranted the findings of the master of the court in that regard.

Appellant contends that equity has no jurisdiction of this cause of action and that appellee has an adequate remedy at law. We cannot agree with this contention. In Brooklyn Life Ins. Co. v. Week, 9 Ill. App. 358, 361, the court held: “It may be, however, that by reason of impaired health, or other cause for which he is not to be charged, he is no longer insurable upon the usual terms, and if such be the case, he ought not to acquiesce in the company’s declaration of forfeiture, but insist upon his right that the policy should be continued in force; and to this end he may institute a proceeding in chancery to have it adjudged in force, and the rights of the parties may thus be speedily determined, and the question of forfeiture set at rest; or he may tender his premiums, and if refused, wait until the policy by its terms shall be payable, and bring an action on the policy. Day v. Conn. Life Ins. Co., 45 Conn. 480; N. Y. Life Ins. Co. v. Statham, 93 U. S. 24; Phoenix Ins. Co. v. Baker, 85 Ill. 410.”

No objection was made before the master that appellee had an adequate remedy at law and that exception, therefore, made before the court was waived. (Law v. Ware, 238 Ill. 360; McIntyre v. McIntyre, 287 Ill. 544; Kaufman v. Wiener, 169 Ill. 596.)

It is argued strenuously in this case by appellant that appellee was in no manner injured by the conduct of appellant so as to entitle appellee to an injunction. Payments of benefit falling* due each month upon these policies were to be stopped, according* to the threat and terms of appellant’s letter requiring a suit to be commenced each month and a multiplicity of suits and in the opinion of this court appellee was entitled to the injunction order.

Appellant calls the court’s attention to a further provision in the policies, as follows: “The agreement further provides that should the insured recover from total and permanent disability, the payment of benefits and waiver of premiums should cease. By the latter provision it is contemplated that a person while totally and permanently disabled at the present time, in the sense that he is unable to do anything and it is impossible to say just how long his condition will continue, might at some future time recover from his disability sufficiently to perform work or engage in an occupation for remuneration.”

This was a valid provision of the policies and was the basis of the only substantial issue in the case. We have read all of the testimony offered in the case and we are of the opinion that the proofs support the decree.

Appellant complains that the court, in its decree, allowed appellee disability benefits for one month too many. The record does show that these payments had been made to September 1, 1930. The record does not show when the disability commenced or the amounts paid, and there is nothing before this court to indicate that these payments were made monthly in advance. This particular objection and exception was not pointed out either to the master or the chancellor and we cannot determine it was error.

Finding no error in the record, the decree of the circuit court of Hancock county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Harry Hall and William Hall, Trading as Hall Brothers, Appellants, v. Fred J. Bergschneider and J. G. Bergschneider, Appellees.
    Gen. No. 8,583.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Hairgrove & Absher, for appellants.
    Carl E. Robinson, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

In vacation during the February term, A. D. 1931, of the Morgan county circuit court, the appellants took judgment by confession on the promissory notes involved in this suit. At the same term the appellees filed their motion for leave to open the judgment and to plead to the merits. The circuit court granted the motion of the appellees, opened the judgment, stayed the execution and preserved the lien of the judgment and execution during the pendency of this suit.

In the month of April, A. D. 1930, Harry Hall and William Hall, partners, doing business as Hall Brothers, the plaintiffs below and the appellants here, by written contract sold to Fred J. Bergsehneider and J. Gr. Bergsehneider, the defendants below and the appellees here, a certain John Deere No. 5 combine. Four judgment notes, each in the principal sum of $407.50, were signed and given by the appellees for the combine. The notes were payable to Hall Brothers and contained the usual power of attorney for the confession of judgment.

Among other things the contract of sale contained a warranty, a part of which is as follows: “That all machines herein ordered are warranted to be well-made, of good material and workmanship and to do good work when properly set up and. operated according to directions furnished with each machine. Should any machine herein ordered fail to do good work, when operated as above, then immediate written notice shall be given to the seller and a reasonable time allowed to send a man to put the machine in good working order. The purchaser agrees to render necessary and friendly assistance in making said machine do good work. Failing then to make the machine do good work, same shall be subject to the order of the seller and the settlement made for the same shall be void. ’ ’

The machine was. later delivered by the appellants to the appellees and assembled and set up for action by the appellants. The combine was a machine to be used for three different purposes, to wit: The harvesting and threshing of wheat, the harvesting and threshing of oats and the harvesting and threshing of soy beans. It is claimed it did not work satisfactorily for any one of these purposes; that the appellants were immediately notified and sent men to work on the machine at least a dozen times; that the machine was used very little for the threshing of oats and the same trouble was had in that work as was had in the threshing of wheat, the appellees claimed.

The harvesting and threshing of soy beans followed the other harvests. In this last work, it is claimed that the machine utterly failed.

As before, appellees gave immediate notice to the appellants and again men were sent to adjust and repair the machine repeatedly. Sometimes days were spent continuously in working on the machine. Men from the appellants, who were retail dealers, and men from the John Deere Company, the manufacturers, both came and worked on the machine repeatedly.

There was testimony tending to show that on October 10, 1930, after the machine had been repaired many times and it had failed to do good work and appellees had purchased another machine to save their crops, and had demanded back their notes at various times and tendered back the machine to appellants at different times, one of the appellants said to the appellees: “You go on and try it again . . . it will work when it is fixed.” Three men came from the manufacturers and worked two or three days on the machine, changed several of the parts and put on some new parts. The machine was tried again by appellees, but, it is claimed, it would not work satisfactorily or do good work and they again tendered back the machine and demanded their notes.

The cause was tried by a jury and there was a verdict finding for appellees and a judgment that appellants take nothing by reason of said notes and appellants have brought the record to this court by appeal for review.

Appellants deny that on October 10, 1930, or at any other time after that date, they, or either of them, asked appellees to try the machine again, but testify that at the meeting on October 10 or about that date, they stated to appellees that they would not take the machine back and cancel the notes, after appellees had used the machine during the entire season, and they reiterated the same statements to appellees at several times before appellees ceased to use the machine in cutting beans that fall; nevertheless, appellees continued to use the machine and cut soy beans with it up to and including October 30, 1930.

The father, J. Gr. Bergschneider, testified that he had no interest in the machine except to sign the notes for his boys, 'and it appears, by the proofs,' that his three sons, Fred, Paul and Leo Bergschneider,. were to run and operate the machine and have the earnings from the same and on August 2, 1930, Leo Bergschneider, one of the sons, paid appellants $300 from the earnings of the machine, which was indorsed upon one of the notes before the same was due, and which amount was later demanded back by'appellees.

Various assignments of error are made in this case. Although the warranty provided that the machine in question should be made of good material and workmanship, yet by various rulings the court refused to permit appellants to show that the machine was made of good material and workmanship. This was error.

There was trouble in the operation of this machine, without question, but the proofs show that, whenever notified, appellants were diligent in attempting to repair any break or defect, and there is not much controversy but that appellants did everything that could be done in that behalf. There is a direct issue made in this case whether the machine did or did not do good work when properly set up and operated according to directions furnished with each machine. It was a complicated machine and doubtless, as with all machines of that character, more or less repairing and care must be used to secure' its operation in a good and smooth manner. This much is implied in the wording of the warranty.

It was shown by the proofs that appellee, J. Gr. Bergschneider, one of the signers of the note, merely signed for accommodation and that his three sons, Fred, Paul and Leo, operated the machine and were interested in the earnings of the machine. Leo Bergschneider paid $300 to appellants from these earnings on August 2, 1930, one month after the machine was delivered and had been in operation. The court, by its rulings, would not permit appellants to show under what arrangement or contract the three sons operated the machine. This was error, as it had a direct bearing upon the payment made upon the notes before they became due.

Appellees, in their pleadings, do not defend solely upon the breach of warranty contained in the contract, and this course is pursued probably because appellees did not comply with the terms of the contract of warranty and did not give any written notice to appellants that the machine failed to do good work. Appellees, in their third plea, allege that the consideration for the notes had wholly failed. To this plea appellants replied, among other things, “that defendants did use said machine and operate the same during all of said season and received large profits and valuable considerations therefrom,” to which replication a similiter was filed and the issue there joined became one of the issues in the case.

The proofs show that appellees harvested with this machine during the season of 1930 from July 1, to November 1, 300 acres of wheat, 200 acres of beans, 15 acres of oats and hulled a quantity of clover seed for three or four parties. It was therefore error to deny appellants the right to inquire into the earnings of the machine. It may be that a written notice of defects, as provided in the contract, was waived as to all notices given prior to October 10, although a waiver is not pleaded; however, on appellants’ theory of the case, no waiver of a written notice of defects .could be claimed after that date. We make no finding on waiver of notice, however.

The court refused to give appellants’ instruction marked number eleven as follows: “The court instructs the jury that by the second plea of the defendant a warranty in writing of the machine sold is pleaded and that by the said warranty the seller was to make the machine do good work and if it did not do good work it should be subject to the order of the seller and the settlement made for the same should be void; and that it is further provided in said warranty that there was no other warranty express or implied and the defendants therein aver that said machine was defective and not of good material or workmanship as guaranteed by said warranty and that it failed to do good work and that by reason thereof the notes sued on herein became and were void and of no effect. And the jury are further instructed that if the jury believe from a preponderance of the evidence, in this case that the defendants did have trouble with said machine and that said machine did not do good work and that thereon the defendants had a right to return the machine and declare the notes void. Yet, if the defendants knew the work of the machine was not good and wished to return the same and declare the notes void, then the defendants were bound to so notify plaintiffs within a reasonable time. And if the jury further believe from the evidence that the defendants did not notify the seller that the machine was subject to seller’s order within a reasonable time but thereafter kept and used the machine throughout the harvest and the defendants paid to plaintiffs on August 2, 1930, three hundred ($300.00) dollars on a note given for the machine, after wheat harvest was over, and if the jury further believe that the defendants kept the machine and used the machine until the end of the season and did not tender the machine under the contract to plaintiffs and did not elect to declare the contract void within a reasonable time, the defendants will be held to have elected to keep the machine and pay for it at the agreed price and to have waived their rights to declare a forfeiture of the notes under the warranty set out in the second plea of the defendants. ’ ’

A part of the substance of this instruction was given in appellants’ instruction number two, but number 11 was the only instruction which attempted to bring to the consideration of the jury the payment of $300 upon the notes more than one month after the machine was delivered. Whether this constituted an acceptance of the machine was a question appellants were entitled to have presented to the jury. Illinois Glass Co. v. Ozell Co., 197 Ill. App. 626.

What we consider to be one of the major issues in this case, to which insufficient consideration was given in the lower court, is whether appellees used the machine after being notified by appellants that appellants would not accept the machine back and cancel the notes. There was testimony submitted on both sides of this question. Appellees attempt to explain the continued use of the machine by appellants’ express request “for another chance” and for additional time “to make the machine right,” etc. Appellants deny this testimony and state that on or about October 10, 1930, and at other times before appellees ceased using the machine, they attempted to rescind and offered to return the machine and demanded back their notes and the money paid, but that appellants refused to accept the machine and cancel the notes, but informed appellees that the notes would he entered in judgment, and that appellees requested that the litigation be friendly. If appellants ’ testimony on that issue is true, and appellees thereafter in any manner used the machine as owner, it constituted a full acceptance of the machine and appellees are liable on the notes.

In Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491, 502, the court held: “It cannot well be contended that the appellant’s continued use of the engine after May 26 did not constitute an acceptance of the plant unless the circumstances attending such use so qualified the act as to prevent its having the ordinary effect. The test was completed, the appellee had withdrawn its engineer, claimed to have performed its contract and was demanding payment. The plant was then tendered in satisfaction of the contract. If it conformed to the contract the appellant was bound to accept it. If it did not substantially conform to the contract the appellant had the right to accept or reject it, at its option. If it chose to retain and use the engine it thereby acceptéd the ownership of it. Any act done by the buyer of goods tendered in fulfillment of a contract of - sale, which he would have no right to do if he were not the owner, constitutes, of itself, an acceptance of the goods. (2 Benjamin on Sales, — 4th Am. ed. — sec. 1051; Cream City Glass Co. v. Friedlander, 84 Wis. 53; Dodsworth v. Hercules Iron Works, 66 Fed. 483; Brown v. Foster, 108 N. Y. 387; VanWinkle v. Crowell, 146 U. S. 42; Chapman v. Morton, 11 M. & W. 534.) Even though the appellant had determined to reject the plant, and. though its letters to the appellee and its attorneys be regarded as sufficient notice, in writing, of such rejection, it could not retain possession of the property and use it for its own profit in its business and at the same time insist upon the rejection. The two things are utterly inconsistent. While the appellant is actually accepting and using the plant its words of rejection are unavailing. Where machinery has been bought on approval, tried, found defective and unsatisfactory and- notice of rejection has been given, and where, nevertheless, the vendee has continued to use the machinery, such use amounts to a waiver of the right to return the machinery and an election to accept it. Fox v. Wilkinson, 133 Wis. 337; Palmer v. Banfield, 86 id. 441; Stutz v. Loyalhanna Coal Co., 131 Pa. 267; Aultman v. Theirer, 34 Iowa 272.” This rule of law rendered certain of appellees’ instructions, not made plain by the abstract, erroneous. The record does not make plain that the three sons of Bergschneider in the use and operation of the machine used due care and caution in following the book of directions furnished with each machine. There is testimony that some of them paid no attention to the book.

Other errors are pointed out by appellants which doubtless upon another trial will be corrected.

For the reasons stated, the verdict and judgment of the Morgan county circuit court is reversed and the case remanded for another trial.

Reversed and remanded.


text:
    T. E. Lyons, Receiver of the Arcola State Bank of Arcola, Illinois, Appellant, v. Estate of Ralph G. Ernst, Deceased, Appellee.
    Gen. No. 8,592.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    John M. McNutt, for appellant.
    Ward & Pugh, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from the circuit court of Coles county, and the case came to that court on appeal from the county court.

T. E. Lyons, receiver of the Areola State Bank of Areola, filed, ■ in the Coles county court, his claim against the estate of Ralph Gr. Ernst, deceased, on August 28, 1929. The claim as filed and sworn to consisted of three promissory notes of Ralph Q-. Ernst, upon which there was due at' the date of filing said claim $31,991.02. Each of said notes was the usual judgment form of notes. Judgment was rendered in the county court against the estate on November 21, 1930, for $33,586.04. The administrator of the estate appealed to the circuit court.

Bond was filed with the clerk of the county court on the 21st day of November, 1930, said bond being-in the sum of $200. The bond was not approved by the county judge, but purports to have been approved by the county clerk only.

At the January term, 1931, of the circuit court, the receiver moved to dismiss the appeal for want of a sufficient bond and on February 14, 1931, the court ordered the administrator to file a sufficient bond in 30 days, “the bond to be approved by the clerk.” On March 12, 1931, the defendant filed his second appeal bond, in the sum of $68,000, by which he became bound only to the Areola State Bank and the bond was approved only by the clerk of the circuit court on March 12,1931.

The January term, 1931, was finally adjourned on March 14, 1931. On April 20, 1931, being the first day of the April term, 1931, the receiver filed his second motion to dismiss said appeal for want of sufficient bond and set forth that the bond was not the bond of the administrator or a party to the suit; that the bond was not conditioned as required by statute and pointed out other defects.

On June 8, the court denied ^appellant’s motion to dismiss the appeal and granted appellee’s cross motion to file a new bond within 10 days. There was no order permitting the clerk to approve the bond.

On June 13, appellee filed another pretended bond, purporting to be approved by the clerk of said court. It was not approved by the court or a judge thereof and upon June 27, 1931, appellant again moved to dismiss the appeal for various reasons set out and other defects in the bond.

On July 11, appellee filed a cross motion for leave to file another bond and' the court overruled appellant’s motion to dismiss the appeal and granted appellant’s cross motion for leave to file another bond within 10 days, and on July 20, 1931, appellee, in the circuit court, filed another bond which was approved by the court. Appellant objected and took exceptions to all of the rulings of the circuit court of Coles county in refusing to dismiss said appeal from the county court and in permitting the administrator to file additional bonds.

Appellant, in this court, has moved to dismiss the appeal of appellee from the county court of Coles county on the ground that the circuit court of Coles county lost jurisdiction of the appeal and the case. The right to appeal from the county court of Coles county upon a claim is derived from section 68 of chapter three of the Revised Statutes, the Administration Act, Cahill’s St. ch. 3, 'ff 69, which reads as follows: “In all cases of the allowance or rejéction of claims by the county court, as provided in this Act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices-of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by the county judge, and such appeals shall be tried de novo in the circuit court.”

Under the Justices and Constables Act (Cahill’s St. ch. 79, if 116), the party praying for the appeal shall within 20 days from the rendition of the judgment pay the fee provided by law for the filing of such appeal, and enter into bond with security to be approved and conditioned as hereinafter provided, etc. The bond shall be approved by and filed with either the justice of the peace rendering said judgment or the clerk of the court to which the appeal is taken.

Section 180 of the same act, Cahill’s St. ch. 79, ft 178 (§69), provides: “Ho appeal from a justice of the peace shall be dismissed for any informality in the appeal bond. But it shall be the duty of the court before whom the appeal may be pending, to allow the party to amend the same within a reasonable time, so that a trial may be had on the merits of the ease. ’ ’

There is no doubt but that appellee in this court, for any informality in the bond' given in the county court, had the right to secure an extension of time to give a sufficient bond, but having failed to* give a sufficient bond within the time allowed by the circuit court, in the January term, or an order extending the time within which to file the bond, the circuit court of Coles county lost all jurisdiction of the case. (Hall v. First Nat. Bank of Pittsfield, 330 Ill. 234; Hill v. City of Chicago, 218 Ill. 178; McCormick v. Meisenheimer, 337 Ill. 65.) In many respects the defects in these bonds were of substance and not mere informalities. The court erred in not dismissing the appeal.

However, after the court’s rulings upon the various motions to dismiss the appeal, appellant entered his general appearance and proceeded with the trial of the case, thereby waiving his special appearance, and subjected himself to the jurisdiction of the court. Davison v. Heinrich, 340 Ill. 349, 353.

Upon the trial of the cause the rulings of the court were even more extrajudicial than the rulings upon the motion to dismiss. The cause was tried by a jury. There were no pleadings filed except the verified claim. Counsel for appellee, in their statement of defense to the jury, made it manifest that appellant could not safely proceed to trial without the presence of certain witnesses, who were absent from the county and whose presence appellant could not obtain in time to testify in said cause. We have examined the affidavit for continuance, and in the opinion of this court it was amply sufficient for the court to have exercised its discretion and continued the cause. The court denied the motion.

Appellant presented his credentials as receiver of the Areola State Bank by a commission of authority over the signature and seal of Oscar Nelson, auditor of public accounts of the State of Illinois, authorizing and empowering said appellant to take possession of the books, records and assets of every description of the said Areola State Bank, etc., and declaring said bank insolvent and approving appellant’s bond as such receiver, etc. under date of March 7, 1927, prior to the presentation of said claim in the county court, and offered the same in evidence. Appellee objected to the introduction of the document, which objection the court sustained and appellant excepted to the ruling. This was error. (Cahill’s St. ch. 15,1i 6; Irving v. Brownell, 11 Ill. 411; Fish v. Hopping, 169 Ill. 105, 107.)

Appellant offered the notes in evidence. They were signed by appellee and the record so shows. To this offer appellee objected and the court sustained the objection, to which ruling appellant excepted. This was likewise error." ' (De Clerque v. Campbell, 231 Ill. 442, 447; Campbell v. Thompson, 192 Ill. App. 415; Chicago Title & Trust Co. v. Ward, 113 Ill. App. 327, 329; Bell v. Bennett, 188 Ill. App. 62, 65; Gross v. Estate of Thornson, 286 Ill. 185, 193; Woodward v. Donovan, 167 Ill. App. 507; Commercial Credit Trust v. Land, 251 Ill. App. 469, 472.)

Appellant made no further proof and none was needed. Appellee then asked the court to instruct the jury to find a verdict for the defendant, appellee in this suit, and the court granted the motion and instructed the jury to find a verdict for the defendant, which was done. This was error. Had appellant, claimant, then moved for a new trial on a motion for judgment, non obstante veredicto, this court likely would have been in a position to dispose of the entire case. This was not done, but' a judgment was entered upon the verdict for appellee.

For the errors pointed out, the verdict and judgment of the Coles county circuit court are reversed and the cause remanded for another trial.. •

Reversed and remanded.


text:
    Ruth Elizabeth Short, Defendant in Error, v. Harold Short, Plaintiff in Error.
    Gen. No. 8,595.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Harold F. Trapp, for plaintiff in error.
    Peter Murphy and E. C. Mills, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This cause brings before this court on writ of error the decree of the circuit court of Logan county finding that the complainant, defendant in error, at the time of the filing of the bill of complaint, was living separate and apart from her husband, plaintiff in error, without fault on her part and directing the payment of the sum of $10 a month for her maintenance. Defendant in error filed her bill for separate maintenance August 7, 1929, she being then 18 years of age, against plaintiff in error, who was then 19 years of age. The court at the September term, 1930, appointed a guardian ad litem for plaintiff in error, who filed his answer as such guardian. The guardian ad litem prayed postponement of the case until the January term, 1931, at which time plaintiff in error would be 21 years of age and could for himself elect whether to affirm or dis-affirm the alleged marriage. The court denied the motion. The guardian ad litem thereupon filed his cross-bill alleging that the marriage was procured by duress and coercion in that on the 27th of February, 1928, the father of defendant in error came with a deputy sheriff of Logan county to the home of plaintiff in error and represented that defendant in error was pregnant with child. He charged the plaintiff in error with being the father of said child and represented to plaintiff in error that unless he married the defendant in error he, the plaintiff in error, would be prosecuted for rape and sent to the penitentiary for life; that the plaintiff in error was not the cause of the pregnancy of the defendant in error, but that he was young, inexperienced and put in fear by reason of the nature of the charge and influenced by the threats and representations of force and entered into said marriage immediately on the same day; that thereafter on the 13th day of June, 1928, a fully matured child was born to said Ruth Elizabeth Short which child is still living; that plaintiff in error, knowing the child was not his child, refused to live with the defendant in error and has never lived with her since said time; that the defendant in error became 16 years of age after the birth of said child; that he never lived with her since before the birth of said child; that he is a minor under the age of 21 years and does not care to ratify or confirm said marriage; that by reason of the misrepresentation and coercion brought upon him, the marriage was voidable; that by reason of the age of the said Ruth Elizabeth Short at the time of said pretended marriage the marriage was void, and he desires to disaffirm the same.

The court sustained a demurrer to the cross-bill and the plaintiff in error elected to stand by said cross-bill. The plaintiff in error was 18 years of age on January 15, 1928; defendant in error was 16 years of age May 12, 1928; the marriage took place February 27, 1928.

Plaintiff in error contends that the proofs show that after said marriage the defendant in error and plaintiff in error lived upon the farm of defendant in error’s father, which defendant in error operated himself; that they never' cohabited as husband and wife after the latter part of April, 1928; that during the latter part of May, 1928, a nurse waited upon defendant in error . and' until' the child was born, and thereafter until June 24, 1928; that plaintiff in error occupied a different room in the home after the latter part of April, 1928, and was' still maintaining the defendant in error in their home, on June 24, 1928, at which time defendant in error’s mother was staying with her; that-on said day the nurse was discharged and early in -the morning the defendant in error’s father came in his car and took defendant in error, her child and her mother to the father’s home where she has resided since that. time. ' There was no proof that plaintiff in' error had ever injured or mistreated defendant in error in any way, but on the contrary the proof shows that he provided for her and supported her and continued to operate the farm until after she deserted him. There was no proof to sustain the charge that defendant in error lived separate and apart from her husband without fault on her part.

The only contradiction to the testimony as given was by defendant in error. She states that plaintiff in error was at the home until after the child was born; that he was not there any time after that; that he came back twice a day to do his chores; as far as defendant in error knows, after June 24,1928, he stayed with his parents about a mile and a half west of Emden. Plaintiff in error contributed. $60 to the support of his wifé after the separation.

The’plaintiff in error upon the trial offered to prove that he had not had sexual intercourse with the defendant in error at any time prior to said marriage, and that he was not and could not be the father of said child; that he was but 18 years of age; that on February 27,1928, when defendant in error’s father in her behalf came with the sheriff of Logan county, early in the morning to the defendant in error’s home and stated that he must marry her or be prosecuted for rape and sent to the penitentiary for life, he was very much intimidated; that he was taken to the courthouse in Lincoln where said threats were repeated; that he was told by the sheriff that he would have to marry the defendant in error, but that he need not live with her; that he was inexperienced, had no attorney, and that by reason of fear and intimidation and the threats and representations made to him he was induced to enter into the marriage. He also offered to prove that at no time when the child must have been begotten was he with or in the presence of the defendant in error. He further offered to prove by his father and his mother the said threats and representations so made by the sheriff and defendant in error’s father, all. of which offers the court refused to admit. Plaintiff in error also offered to prove by his own testimony that he was never in the company of the defendant in error except one evening, September 23, 1927, when he drove from Emden to her home, a distance of about two and one-half miles,- to get some spoons for a Sunday school picnic. This date was such that the child born on the 13th day of June, 1928, fully developed with finger nails and hair, could not in the course of nature have been begotten by the plaintiff in error. Plaintiff in error offered to prove that he never did have sexual intercourse with defendant in error and that said child was not and could not be his child. He also offered to prove that defendant in error told him that on the night of the Hartsburg Homecoming, September 15, 1927, she had driven in the car of John Zimmer with John Zimmer and Pauline Brandt and with a young man named Coogan; that Zimmer and Miss Brandt had gotten out of the car, walked down the road and left her and Coogan in the car; that Coogan there had sexual intercourse with her.

All of these offers to prove were denied by the court, to which rulings of the court refusing to permit him to make proof of the coercion, duress and misrepresentation by which the marriage of plaintiff in error was procured, the plaintiff in error duly excepted.

The court dismissed the plaintiff in error’s cross-bill for want of equity and sustained defendant in error’s bill for separate maintenance. A decree was granted which is brought to this court on a writ of error for review.

It is contended by plaintiff in error- that there is no testimony in the record fairly tending to support the finding and decree, that defendant in error, at the time of filing her bill, was living separate and apart from plaintiff in error, without her fault. Separate maintenance is a statutory remedy, in derogation of the common law, and the court is without jurisdiction to decree it except where the proof brings the complainant strictly within the law, nothing by way of intendment being presumed. (Raab v. Raab, 150 Ill. App. 554, 558; Johnson v. Johnson, 125 Ill. 510, 515; Was-son v. Wasson, 236 Ill. App. 505, 508.)

Before the court can decree separate maintenance to the wife, the preponderance of the evidence must show, first, that the conduct of the husband is such as directly to endanger the life, person or health of the wife, or, second, that the husband pursues a persistent, unjustifiable and wrongful course of conduct toward the wife, which will necessarily and inevitably render her life miserable and living with him as his wife, unendurable. (Johnson v. Johnson, supra; Raab v. Raab, supra; Wasson v. Wasson, supra; French v. French, 302 Ill. 152, 161.)

But the more serious question in this case, aside from the status of the parties under the laws of this State, is the question of the court’s action on plaintiff in error’s cross-hill, the question of duress and the use of threats to compel plaintiff in error to enter into the marriage. There is no question about the facts charged in the cross-bill and, by the demurrer, admitted to be true. Plaintiff in error, if he had intercourse with defendant in error, was guilty of a felony and subject to confinement in the penitentiary.

In Schwarts v. Schwarts, 29 Ill. App. 516, 526, duress is defined: “In 2 Greenl. Ev., Sec. 301, it is said: ‘Duress, in its most enlarged sense, is defined as that degree of severity, either threatened and impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.’ ‘The plea of duress of imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument. ’

“In 6 Am. & Eng. Encyclopedia of Law, 57, duress is defined thus: ‘Duress exists where one, by the unlawful act of another, is induced to make a contract or perform some act under circumstances which deprive him of his free will. ’

“The Supreme Court of Michigan, in Feller Green, 26 Mich. 69, have said: ‘To make out the defense of duress of imprisonment, it must appear that the party’s action has been influenced by the restraint; if he has only paid or secured a just debt while held in custody, the transaction is not to be avoided unless he did so because of the custody. The question is one of fact, whether he was coerced or acted willingly, and the conclusion of coercion is not a necessary and unavoidable one from the fact of unlawful restraint. ’ Taylor v. Cottrell, 16 Ill. 93; Ford v. Cratty, 52 Ill. 313.”

In Taylor v. Cottrell, 16 Ill. 93, 95, duress is described: “In the case of Thompson v. Lockwood, 15 John. 256, the imprisonment was unlawful, and the bond being taken by a public officer, colore officii, was void for want of right or authority in the officer, although worded according to the statutory form. Being contrary to the policy of the law, it was adjudged void as to the surety also, and not good as a voluntary bond at common law.

“The chief distinction under the rule seems to be between a lawful and unlawful imprisonment. The latter shall be intended a duress to avoid a bond given for enlargement. 3 Bacon’s Abridg., title ‘Duress,’ -252; 4 Harrington, 311.

“But where the imprisonment is lawful, the party alleging the duress, must show how it is made to operate upon and influence his mind by constraint to assent to, and do acts contrary to right and justice. 3 Bacon’s Abridg., title ‘Duress,’ 252-5; 4 Harrington, 311. And this may be done by false, malicious, and groundless demand, or charge of crime for which the party may be arrested, and forced to execute the instrument to procure his release, as in the case of Wat'kins v. Baird, 6 Mass. 506; 3 Bacon’s Abridg., title ‘Duress,’253.”

In Schommer v. Farwell, 56 Ill. 542, 545, it- is held: “It is evident that the sole purpose of Keefe in this prosecution was, by the agencies of the criminal law, to secure what he believed to be a debt due to his employers. The police officers seem to have paid no attention to the command of the magistrate’s warrant, or to the rights of the prisoner, but to have used their official power merely in obedience to the wishes of Keefe, and to enable him to accomplish his private purpose. We presume Keefe believed Sehommer’s son had been guilty of embezzlement, and that the father was privy to it, but this did not justify him in prolonging the imprisonment of Schommer a single hour, merely for the purpose of compelling the execution of this 'mortgage, and if it was executed by Schommer as the only means of speedily terminating his confinement, and after being refused a hearing before the magistrate, then it was executed under duress and is void. That it was so executed is fairly to be inferred from the testimony.”

And it is held in-Heaps v. Dunham, 95 Ill. 583, 588: “Imprisonment, when lawful, is by no legal intendment an abridgment of the free and voluntary volition of the mind in the management of business transactions. It is, therefore, not sufficient to establish duress to show an imprisonment. It is necessary to show an unlawful imprisonment or abuse of or oppression under lawful process or legal detention. Taylor v. Cottrell, 16 Ill. 93.” In the last case the court held void a note in the excess above $500, the amount that might have been recovered in a bastardy suit.

In the case at bar there was no legal prosecution of plaintiff in error or any warrant for his arrest. Harry McCormick, father of defendant in error, and the, sheriff took plaintiff in error into custody and informed him that he would be convicted of rape and sent to the penitentiary for life. They did not permit him to have counsel or advice or the assistance of an attorney, without which no court undertakes to adjudicate the rights of a minor. They tried and convicted plaintiff in error and fixed the penalty. Plaintiff in error at this time told McCormick and the sheriff that he was not the father of the child and had not had intercourse with the girl, but in their view of the matter someone had to marry defendant in error and they held their court in session until plaintiff in error succumbed, according to the proofs offered and the cross-bill. He was taken before the State’s attorney, and told by him that he would have to marry defendant in error or be prosecuted for rape. The sheriff informed him that he would have to marry defendant in error, but would not have to live with her. All of these matters are questions of fact upon which plaintiff in error was and is entitled to a trial by jury.

Defendant in error’s only answer to the charge of duress and threats is that the threats were made, not by defendant in error, but by a third person, and cites Marston v. Brittenham, 76 Ill. 611; Ladew v. Paine, 82 Ill. 221, and Schwartz v. Schwartz, supra. It is true that there must be some privity or relationship between the party coerced and the party benefiting thereby. In Marston v. Brittenham, supra, the cause arose between a wife, acknowledging with her husband a trust deed covering her own property, and the party who was the holder of the indebtedness. The wife fully acknowledged the instrument, separate and apart from her husband, but afterward claimed that she was coerced by her husband. It was held that her claim would not bind a third party. Ladew v. Paine, is identical in facts with Marston v. Brittenham, supra. In Schwartz v. Schwartz, supra, it would appear that all of the parties were adults, and that appellant was persuaded to do nothing except what he had contracted to do and very cheerfully was willing to do. We cannot hold that the same rule applies to a child, under age, also under the age of consent, under the direct control of her father, under his will and possibly under the influence of the same coercion. She is not in a position to claim rights in a contract into which, under the law, she had no right to enter.

In the cross-bill plaintiff in error sought to show that the child was not his child. Counsel for defendant in error contend that the declaration of the father or mother cannot be admitted to bastardize the issue born after marriage, citing Godfrey v. Rolland, 7 Am. Cas. 993; Wharton on Evidence, sections 607, 608 and 609, and Enel, of Evidence, vol. 2, page 240. There is no doubt about this rule in a proper case. But does it apply in this case? There seems to be no decided case in our own State upon this subject; at least, no case is cited by either side.

In Gard v. Gard, 204 Mich. 255,169 N. W. 908, found in American Law Reports vol. 11, page 923, the court held: “A man is entitled to annulment of a marriage into which he enters because of the fraudulent representations by the woman that the child of which she is pregnant is his, although she had informed him that she had sustained illicit relations with another,” and a copious note follows upon the subject at page 931.

In Jackson v. Ruby, 115 Atl. 90, found in American Law Reports vol. 19, page 77, the court held: “A marriage will be annulled if induced by fraudulent representations that the man is the father of the woman’s unborn child, although he had sustained illicit relations with her, and took no precautions to ascertain the truth of her assertion.” There is a note to this case, page 80, stating 1 ‘ Supplementing annotation in 11 A. L. R. 931.

“The reported case (Jackson v. Ruby, ante, 77) is the first one upon the subject which has been reported since the publication of the former annotation. It is shown in the former note that while the tendency of the earlier cases was to refuse relief in such cases, the later ones show a very strong tendency in the opposite direction, and, in the absence of special circumstances, grant the relief. The Maine court now adds the weight of its authority to that side of the controversy.”

In neither ease do we find any citation of Illinois authority, and therefore we presume the question has not been passed upon in this State.

It is contended by defendant in error that plaintiff in error ratified the marriage by living with her after she arrived at the age of consent. Plaintiff in error testified he did not live or cohabit with defendant in error after she became 16 years of age, but states that he left her in the latter part of April, 1928. This is a question of fact to be established upon another trial. The testimony offered to establish the right of separate maintenance was meager, if sufficient, but we do feel that it is necessary to pass upon it until the matters in the cross-bill are out of the way. In the opinion of this court, the circuit court of Logan county erred in sustaining the demurrer to the cross-bill. The cross-bill should have been sustained both upon the question of threats, coercion and duress that induced plaintiff in error to enter into the marriage, as charged in the bill, as well as the allegation of fraudulent representations that the child was the child of plaintiff in error, as charged, and as to any other rights that plaintiff in error may have under his cross-bill.

Little light is thrown upon an analysis of this case by the various decisions of the Appellate Courts of the State, since the amendment of the Rape Act in 1905, and the provision in that act as to a “legal marriage” not yet having been determined.

For the reasons stated, the decree of the .circuit court of Logan county is reversed and the cause remanded to that court for further proceedings, in ■ accordance with, the views expressed in this opinion.

Reversed and remanded.


author: Mr. Presiding Justice

text:
    L. Sherman Adams et al., Appellants, v. William J. Stratton, Secretary of State for the State of Illinois, Appellee.
    Gen. No. 8,542.

      Heard in this court at the October term, 1931.
    Opinion filed February 15, 1932.
    Moses, Kennedy, Stein & Bachrach, Friedman, Atherton, King & Turner and Graham & Graham, for appellants; Percy A. Atherton and Herbert H. Kennedy, of counsel.
    Oscar E. Carlstrom, Attorney General, for appellee; B. L. Catron and James W. Gullett, Assistant Attorneys General, of counsel.
   Mr. Presiding Justice

Niehaus delivered the opinion of the court.

In this case appellants L. Sherman Adams, Ash-ton L. Carr, Merrill Griswold, and Charles P. Rowley, trustees of the Massachusetts Investors Trust, filed a petition under section 18 of chapter '32 being “An Act relating to the sale or other disposition of securities,” Cahill’s St. ch. 32, If 271, to review the action of William J. Stratton, Secretary of State, in refusing to list 5,000 shares of beneficial interest in the common law investment trust of which the appellants are trustees, as Class “C” securities under section 6 of the act referred to, Cahill’s St. ch. 32, ff 259.

The petition avers that the Massáchusetts Investors Trust is a common law investment trust organized and existing under and by virtue of the- laws of the State of Massachusetts, and having its principal place of business at Boston, Massachusetts; that said trust was organized on March 21, 1924, under a declaration of trust, a copy of which is attached to said petition; that petitioners are now the acting trustees of said trust; that among the purposes of said trust is the power to buy, sell and invest in stocks, bonds and other types of securities mentioned in said declaration of trust and to make distributions of income and capital gains to its shareholders; that there is no bonded indebtedness or interest bearing obligations outstanding; that there is no class of shares having a preference over any other class; that shares in said trust have been qualified for sale under the securities laws of the States of Massachusetts, New York, Pennsylvania, Indiana, Iowa, Maine, New Hampshire, Rhode Island, Missouri, California, Kansas, Washington, Vermont, Illinois (as in Class “D” securities), Minnesota, Michigan and Wisconsin; that on July 3, 1930, 5,000 shares of said trust were qualified for sale in Illinois as Class “D” securities under the Illinois Securities Law, Cahill’s St. ch. 32, H 261; that none of said 5,000 shares have yet been offered for sale or sold within this State; that on December 3, 1930, petitioners presented and tendered to appellee their application or statement to qualify said 5,000 shares for sale in Illinois as Class “C” securities under the Illinois Securities Act. The petition further avers that said application complies with all the provisions of the Illinois Securities Act, and regulations in connection therewith, for the qualification of said 5,000 shares as Class “C” securities for sale in Illinois; that said application or statement, together with the exhibits, correctly sets forth all facts necessary to qualify said shares as Class “C” securities under said act; that on the 14th day of January, 1930, appellee wrongfully and without cause refused ■to file said application or statement and refused to qualify said 5,000 shares as Class “C” securities for sale in the State of Illinois.

A general demurrer was filed to the petition and sustained by the trial court; and an order was entered dismissing the petition. This appeal is prosecuted by the appellants from the order.

The appellants contend on appeal that the trial court erred in sustaining the demurrer of appellee to their petition; and in holding that the 5,000 certificates or shares of beneficial interest in Massachusetts Investors Trust, a common law investment trust, could not be qualified as Class “C” securities under the Securities Act.

The only question presented for consideration of this court in review is whether or not certificates or shares of beneficial interest in a common law investment trust can be qualified and listed as Class “C” securities under section 6 of the act referred to. Section 6 provides that securities in Class “C” shall comprise the following:

“Those issued by a person, corporation, firm, trust, partnership or association owning a property, business or industry which has been in continuous operation not less than two years and which has shown during a period of not less than two years prior to the filing of the statement herein provided for, average annual net profits, exclusive of all prior charges, as follows:

“ (1) In the case of interest bearing securities, not less than one and one-half times the annual interest charge thereon and upon all other outstanding interest bearing obligations of equal rank;
“(2) In the case of preferred stock, not less than one and one-half times the annual dividend on such preferred stock and on all other outstanding stock of equal rank;
“ (3) In the case of common stock, not less than 3 per cent per annum upon such common stock, (or in the case of common stock of no par value, upon the price at which the same is, or. is to be offered), and on all other outstanding common stock.” Cahill’s St. 1929, ch. 32, If 259.

The question presented for review is narrowed- down to a determination of the meaning of the words: “Common-. Stock” in paragraph 3 of- section 6 above set forth. The appellants contend that this section should be given a broad and liberal construction; and that giving it such a construction, the words “Common Stock” as used in the paragraph' mentioned should include the certificates or shares issued by the common law investment trust; and that such was the intention of the legislature by the use of the words referred to. The trial court held that the words ‘ ‘ Common Stock” as used in the act did not include certificates or shares of beneficial interest in a common law trust organization; and were not intended-by the legislature to include them; but that they referred to the shares of capital stock, of a legally organized corporation.

It is well settled and not disputed that words used in the enactment of a statute should be held to have the usual, ordinary and generally understood meaning. People v. Belt, 271 Ill. 342. Applying this rule as a test of what the term “Common Stock” means, concerning the matters in controversy, it is evident. that the usual, the ordinarily and generally accepted meaning of “Common Stock,” especially when used in connection with the term “Preferred Stock” as in the section referred to, means stock representing shares in the capital as well as the profits of a legally organized corporation. That.this is the meaning of “Common Stock” is also emphasized by the fact that a purchase of “Common Stock” as an investment differs materially in. its legal status and its financial potentiality from the purchase: of shares which merely give the purchaser a right to participate in. profits which may accrue to the purchaser from the operation of a trust Moreover there is nothing in the Securities Act or in the section referred to from which the inference could be reasonably drawn that the term “Common Stock” as used in the section has any other wider or different meaning than that which is usually and generally accepted when used in the statute. We conclude, therefore, that the court did not err in sustaining the demurrer to appellant’s petition, and dismissing it; and the order and judgment is therefore affirmed.

Judgment affirmed.


text:
    R. C. Jones Lumber Company, Appellant, v. Jessie Lahr Jones, Appellee.
    Gen. No. 8,553.

      Heard in this court at the October term, 1931.
    Opinion filed February 15, 1932.
    John E. Hogan and John W. Coale, for appellant.
    Hershey & Vogelsang, for appellee.
   Mr. Presiding Justice

Niehaus delivered the opinion of the court.

In this case an action of assumpsit was brought by the appellant B. C. Jones Lumber Company, a corporation, in the circuit court of Christian county, against the appellee Jessie Lahr Jones, a former stockholder, to recover the sum of $715 claimed by the appellant to be due and owing from the appellee. The declaration filed in the cause consisted of the common counts; afterwards upon motion of the appellee, and the order of the court, a bill of particulars was filed by the appellant, which specifically sets forth its cause of action as arising in connection with a contract of sale, by which the B. C. Jones Lumber Company on January 1, 1926, sold to the Pana Lumber Company the lumber yards which it owned and had been operating at Pana, Illinois, and all the assets thereof, including various accounts due the B. C. Jones Lumber Company; and that the individual stockholders of the B. C. Jones Lumber Company, by verbal agreement, agreed to guarantee the payment of the accounts transferred to the Pana Lumber Company in the event of their being uncollectible or not paid; and in that event, the stockholders were to contribute a proportionate amount of the uncollectible accounts according to the shares of stock held by them respectively.

That on January 31, 1930, a computation was made of the amount of unpaid accounts upon which an assessment against the stockholders should be made, and it was ascertained thereupon that the amount was $19,500, 13 per cent of which would be the share of Jessie Lahr Jones, making her assessment of 13 per cent on $11,000 stock $1,430; and that afterwards at a meeting of the stockholders of the R. C. Jones Lumber Company, held on March 1, 1930, an assessment was made on the stock to meet this deficit, which was made payable quarterly on April 1, 1930, July 1, 1930, October 1, 1930 and December 31, 1930, by the appellee, Jessie Lahr Jones, as stockholder, and that under the assessment, $357.50, and a total of two assessments were due at the time of the commencement of the suit, amounting to the total sum of $715.

The appellee Jessie Lahr Jones thereupon pleaded the general issue to the declaration and bill of particulars and gave notice of the following special defenses under the plea of general issue, namely:

That at the time of the levy of the alleged assessment she was not a stockholder in the R. C. Jones Lumber Company; and was not in any way obligated to pay any of the sums of money claimed to be due from her to the plaintiff.

And that each and everyone of the supposed several promises in said bill of particulars mentioned was a special promise to answer for the debt of another person, to wit, the debts due and owing by the R. C. Jones Lumber Company, and that no memorandum or note thereof in writing, signed by this defendant, nor any other person thereto was by her lawfully authorized according to law.

There was a trial by the court, a trial by jury having been waived by the parties; and the court found the issues in favor of the appellee and entered a judgment in bar of the appellant’s right to recover. This appeal is prosecuted from the judgment.

Error is assigned by the appellant upon the finding of the issues in favor of the defendant; and that the finding .is manifestly against the weight of the evidence.

That the court erred in refusing certain propositions of law submitted by the appellant which were decisive of the appellant’s right to recover; and that the court erred in not entering judgment against the appellee for the amount of appellant’s claim.

An examination of the record discloses that the evidence clearly and conclusively sustains both of the specific defenses set forth by the appellee in her notice of defenses, filed with the general issue. It appears from the evidence that at the time of the purported assessment against the appellee, as stockholder of the R. C. Jones Lumber Company, she was not a stockholder, and had not been for several years prior thereto. The statute does not authorize the creation of a liability by assessment against stockholders in the manner pursued by the appellant corporation, nor is there any warrant in the statute to. make an assessment against persons who are not stockholders of the corporation for the payment of debts of the corporation or for any other purpose.

Stockholders at common law were not responsible personally for any of the liabilities of a corporation, and are only responsible because of some statutory or constitutional provision. (Golden v. Cervenka, 278 Ill. 409; Parkhurst v. Mexican S. E. R. Co., 102 Ill. App. 507.)

Even on the dissolution of a corporation, its members do not become liable for its debts beyond the assets which a member may have in his possession, and a shareholder cannot be held liable beyond the liability imposed by the legislature. A dissolution does not have the effect of converting the stockholders into mere partners. (Tarbell v. Page, 24 Ill. 46.)

It is contended, however, by the appellant, that.the appellee is liable on her alleged verbal agreement which it is claimed was made at the time of the contract of sale .of the R. C. Jones Lumber Company to the Pana Lumber Company. The evidence concerning this feature of the controversy is found in the testimony of Ray C. Jones, president and principal stockholder of the appellant corporation. He testified that all the stockholders of the corporation, including the appellee, were present at the time of the sale by the company and agreed to it. He also testified with reference to the accounts sold, as follows:

“Q: State whether there were any outstanding accounts in the various lumber yards?
A: Yes, sir. -.
Q: State how many shares of stock the defendant, Jessie Lahr Jones, had.
A: She had 110.” ...

In answer to the question concerning what was said by him and the stockholders about the accounts-sold tq.the Pana Lumber Company, the witness answered: “that they (The Pana Company) were to take over the accounts at the yards, Pana and Gillespie, and guarantee by the R. C. Jones Lumber Company any accounts after a reasonable length of time, that they were unable to collect, would be charged back to the R. C. Jones Lumber Company and would reimburse them.” ...

“ Q: Was the defendant there ?

A: Yes, sir.

Q: How did she agree to it; what was said?

A: She said it would he all right. ’ ’

It is apparent from the testimony of the witness Jones that the alleged verbal promise or agreement of appellee to pay, made, was to make good a debt the R. C. Jones Lumber Company might incur under its contract of sale with the Pana Lumber Company to indemnify the Pana Lumber Company for the amount of loss to the Pana Company if the accounts transferred to that company were not collectible and that in this action the appellant seeks to charge the appellee under her alleged verbal promise to answer for a liability incurred by the appellant corporation by its contract of sale referred to with the Pana Lumber Company, which would be in conflict with the provisions of section 1 of chapter 59 on Frauds and Perjuries, Cahill’s St. ch. 59, Ü1, and therefore void.

“Where the undertaking is that the stockholders shall become personally liable for the debts of the corporation to an extent beyond which they would have been liable at common law, or under special statutory and constitutional provisions, the agreement is to answer for the debt or default of another person, and is within the statute of frauds, and must be in writing, since the stockholder is a different person from the corporation.” 14 Corpus Juris, p. 971.

For the reasons stated, the court’s refusal to hold the propositions of law presented by the appellant was not error, and the finding and judgment rendered was proper.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Niehaus

text:
    James Dwyer, Appellant, v. Thomas E. Dwyer and John J. Dwyer, Appellees.
    Gen. No. 8,596.
    Heard in this court at the October term, 1931.
    Opinion filed February 15, 1932.
    Thos. S. Weldon, for appellant.
    Whitmore & Whitmore, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit in assumpsit was commenced in the circuit court of McLean county by the appellant James Dwyer, to recover the sum of $2,000 from the appellees Thomas E. and John J. Dwyer, brothers of the appellant. The alleged legal'" basis for'the recovery of the. sum mentioned is that an" oral promise to pay the appellant the $2,000 was made by the appellees to Thomas E. Dwyer, Sr., father of the parties, as part of the consideration for a deed of conveyance of 115 and 72-100th acres of land to the appellees on February 28, 1913. The parties waived a jury and trial was had by the court. The court, after hearing the evidence, found the issues in favor of the appellees; and thereupon entered judgment against the appellant in bar and for the costs of the suit. This appeal is prosecuted from the judgment.

In the briefs filed by the appellant, it is conceded that for proof of the alleged oral promise sued upon, he relied on the admissions of the appellees in an answer and amended answer filed in a chancery suit, which was brought by the appellatit and his sisters, in the circuit court of McLean county, to set aside the deed of conveyance referred to. The admissions relied on and contained in the amended answer of the appellees are as follows:

“These defendants, further answering, allege that at the time the said Thomas E. Dwyer and wife executed and delivered the deed for said land there was an oral agreement between the parties to. said deed,, and one of the provisions of said oral agreement was, that after the death of said Thomas E. Dwyer, within a number of years, these defendants were to pay to the complainants, respectively, the sum of $2,000, but were not to be charged with interest on said sum from the death of said Thomas E. Dwyer till the said sum was paid. ’ ’ ■

The general rule concerning admissions in pleadings signed by an attorney for his client is correctly stated by counsel for. the appellant, namely, that they are properly admissible as evidence against the client either in the same suit or in some other suit between the parties, or concerning .the same subject matter; but it must be pointed out that admissions of the character mentioned when introduced in evidence are not necessarily conclusive, but should be considered and weighed precisely as other evidence. Ayers v. Metcalf, 39 Ill. 307; 8 Ency. Pl. Pr. 22. “The question as to how far statements made by a party to a suit, in pleadings filed in previous cases, are admissible in evidence, is one on which the authorities are conflicting, but the rule adopted in Illinois is, that they arc admissible; and their weight is to be determined from all the facts and circumstances under which they were made.” Gardner v. Meeker, 169 Ill. 40. Allegations in pleadings are sometimes made by the attorneys drawing the pleadings, on a misunderstanding of the facts and not by authority of the party; and this may be shown. First Euling Case Law, 500, citing Houston, E. & W. T. R. Co. v. DeWalt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877. In this case" it appears from the testimony of the attorney for the appellees, who drew the answers and filed them in the chancery case mentioned, that he made the statements in the answers which are relied upon as admissions of the appellees improvidently, and without any authority therefor from his clients. The purported admissions therefore were as a matter of fact not admissions by the appellees that they made the oral promise upon which the right of recovery is based. And it is evident that the trial court did not so regard the admissions, when viewed in the light of the other evidence in the case, as a legally sufficient basis for recovery; and we are of the opinion that the trial court was warranted in this conclusion and was not in error in rendering the judgment.

The judgment is therefore affirmed.

Affirmed.