source: Caselaw Access Project

author: Mr. Justice Partlow

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Sylvester Maffei, Plaintiif in Error.
    Gen. No. 7,456.
    1. Criminal procedure — when indictment assailable after plea of guilty. Where, by a plea of guilty, an accused confesses he is guilty in manner and form as charged in an indictment and the indictment charges no criminal offense, the sufficiency of the indictment may subsequently be attacked even though there was no motion to quash or in arrest of judgment.
    2. Intoxicating liquors — insufficiency of indictment for unlawful possession. A count in an indictment charging that defendant “intoxicating liquor unlawfully did then and there possess, said act being then and there prohibited and unlawful, contrary to the form of the statute,” etc., did not charge a criminal, offense.

      3. Criminal procedure — plea of release of errors as requisite to save question of waiver of right to prosecute error. In the absence of a plea of release of errors the court will not determine whether a defendant in a criminal prosecution waived his right to prosecute a writ of error by applying for probation, serving the same and being discharged.
    Error by defendant to the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed May 28, 1925.
    Roy F. Hall, for plaintiff in error.
    Edward J. Brundage, Attorney General, George C. Dixon, Asst. Attorney General, William Johnson, State’s Attorney and A. B. Louison, Asst. State’s Attorney, for defendant in error.
   Mr. Justice Partlow

delivered the opinion of the court.

On January 28, 1922, plaintiff in error, Sylvester Maffei, entered a plea of guilty in the circuit court of Winnebago county to the first count of an indictment which charged the illegal possession of intoxicating liquor. He was released on probation for one year and at the end of that time was discharged. A writ of error has been prosecuted from this court to review the judgment.

As grounds for reversal it is urged that the indictment did not charge a crime. No motion was made to quash the indictment, nor was a motion made in arrest of judgment. The rule is, however, that where by a plea of guilty the accused confesses that he is guilty in manner and form as charged in the indictment, as was done in this case, and the indictment charges no criminal offense, that the sufficiency of the indictment may subsequently be attacked even where there was no motion to quash and no motion in arrest of judgment. Klawanski v. People, 218 Ill. 481; People v. Brown, 312 Ill. 63; People v. Peiscz, 226 Ill. App. 363.

The first count of the indictment charges that the plaintiff in error “intoxicating liquor unlawfully did then and there possess, said act being then and there prohibited and unlawful, contrary to the form of the statute,” etc. This count was not sufficient under the rule announced in People v. Martin, 314 Ill. 110, and People v. Barnes, 314 Ill. 140. For this reason plaintiff in error, by his plea of guilty in manner and form as charged in the indictment, pleaded guilty to no violation of the law.

The next question is whether or not plaintiff in error can prosecute this writ of error after his period of probation has expired and after he has been discharged therefrom. Defendant in error insists that the weight of authority is that where a defendant pays the fine imposed in a criminal case he voluntarily waives his right to appeal, or to review the case by writ of error, and several cases are cited in support of this claim. On the other hand plaintiff in error contends that the judgment has only been partially satisfied by the probation and discharge therefrom; that under the law the judgment still has force and effect and can be used against plaintiff in error in case he shall be charged at any subsequent time with a second violation of the prohibition law, and for this reason he has the right to have the judgment reviewed by writ of error.

It will not be necessary for us to determine whether or not the plaintiff in error by making application for probation and serving the same, and being discharged, waived his right to prosecute this writ of error, because that question is not properly before us. In order to raise the question of a release of errors it has been held that a plea of release must be filed, and in the absence of such a plea the question cannot be raised. Trustees of Schools v. Hihler, 85 Ill 409; Crosby v. Kiest, 135 Ill. 458; Metropolitan West Side El. R. Co. v. Siegel, 161 Ill. 638; Schaeffer v. Ardery, 238 Ill. 557. No plea of this kind was filed, therefore the question of waiver is not properly before us. If the right to prosecute the writ was not waived and the indictment did not charge a crime, the only action we can take is to reverse the judgment and remand the cause, which is accordingly done.

Reversed and remanded.


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    Fred L. Murray, Appellee, v. Henry C. Hagmann et al., Appellants.
    Gen. No. 7,465.

      Taxes — propriety of temporary injunction against sale of mortgaged realty for personal taxes. The chancellor properly refused to dissolve a temporary injunction restraining the county collector, county clerk and purchaser of land under a tax sale from selling said land for a certain personal property tax where the bill alleged that the trust deed to said land to plaintiff was a prior lien to such personal property tax; that the personal taxes were illegally made a charge against the real estate; and that the action of defendants was wholly unauthorized by law, was void as to said real estate and tended to impair plaintiff’s lien.
    Appeal by defendants from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed May 28, 1925.
    Ashbel V. Smith, State’s Attorney, for appellants; Sidney H. Block, of counsel.
    Eugene M. Runyard, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

In May, 1923, appellee, Fred L. Murray, filed his bill in the circuit court of Lake county against Henry C. Hagmann, Bertha E. Hagmann, William Martin-son and Inga Martinson, to foreclose a trust deed given to secure a promissory note of $4,000 dated May 1, 1920. The bill alleged that the four persons named were the owners of the real estate conveyed by the trust deed; that on August 31, 1920, they conveyed the real estate to the Kenosha Wheel & Axle Company, of Kenosha, Wisconsin; that on May 19, 1921, the Kenosha Wheel & Axle Company conveyed the real estate to Henry J. Eeith, which conveyance was in fact in behalf of the Winthrop Motors Company, and that Eeith agreed to hold the real estate as trustee for the Winthrop Motors Company; that the Winthrop Motors Company became a bankrupt in the United States District Court for the Eastern District of Wisconsin, and through its trustee in bankruptcy, by a quitclaim deed dated April 16, 1923, the real estate covered by the trust deed was conveyed, or attempted to be conveyed, to E. C. Bead. The bill prayed for a foreclosure of the trust deed.

The appellants in this case, Ira E. Pearsall, county collector, and Lew A. Hendee, county clerk of Lake county, were not made parties to the original bill and were not interested in the issues there presented. Afterwards, on August 25, 1923, appellee amended his bill by alleging that Ira E. Pearsall was the county collector of Lake county, Illinois, and as such county collector had attached to the real estate covered by the trust deed the sum of $849.39, together with interest and costs, for a certain personal property tax against the Kenosha Wheel & Axle Company, or the Winthrop Motors Company, and had advertised said real estate for sale, together with such personal property taxes, and was about to sell said real estate for said taxes, that said real estate may have been occupied by the Kenosha Wheel & Axle Company, or the Winthrop Motors Company, or both, and they may have had personal property in and upon said real estate; that the collector had obtained an order and judgment of the county court of Lake county for the sale of said real estate, which said judgment, in so far as it was for the personal property tax, was wholly unauthorized by law and void, and tended to impair the lien of the appellee in said premises, which lien was superior to any claim of the collector for personal property tax, and that said collector should be restrained from selling said real estate for such delinquent personal property tax.

The amendment further alleged that by the terms of the trust deed, in order to protect his lien from indebtedness against said property, appellee was authorized to pay all taxes that might be assessed against the real estate, and that he was ready and willing to pay such taxes in the protection of his mortgage indebtedness; that since the filing of his bill he had been informed that said real estate was sold in 1922 for delinquent real estate taxes, together with $770.96, as a personal property tax against the Kenosha Wheel & Axle Company; that said real estate was sold to Fred W. Churchill to whom a certificate was issued by Lew A. Hendee, county clerk of Lake county; that said sale, in so far as the personal property tax was concerned, was void, and that appellee should be permitted to redeem from such sale upon the payment of the amount of the real estate tax, interest and penalties, and that in so far as such sale for personal property tax was concerned the same was subject and subordinate to the lien of appellee on said real estate.

The amended bill prayed that Pearsall, Hendee and Churchill be restrained by injunction from selling said real estate for the personal property tax and interest thereon for the year 1922, and that upon a hearing the court enter a decree finding that the personal property tax so attached was not a lien on said real estate, and that a permanent injunction restrain the county collector from selling said real estate for said personal property tax, and that the county collector and county clerk be enjoined from executing a deed upon the certificate issued to Churchill for the personal property tax for which the land was sold in 1922, in. so far as it affected the lien of the appellee; that the lien of the appellee be decreed to be superior to the sale for delinquent personal property taxes, and that the complainant have such other and further relief, etc.

The bill as amended was sworn to, and a temporary writ of injunction was issued. On May 19,1924, Pearsall and Hendee moved to dissolve the temporary injunction. The motion was in writing and assigned thirteen reasons appearing upon the face of the bill why the motion should be sustained. On May 28, 1924, the chancellor, without any affidavits having been filed, or any evidence having been heard, denied the motion to dissolve the temporary injunction and from that order Pearsall and Hendee prayed an appeal to the Supreme Court. The Supreme Court refused to entertain the appeal and the cause has been transferred to this court for review.

The only question before this court is whether or not the bill states such ground for equitable relief as justified the chancellor in refusing to dissolve the temporary injunction.

Section 253, ch. 120, Smith’s St. 1923, p. 1747 [Cahill’s St. ch. 120, [[ 268], provides that taxes upon real estate shall be a prior and first lien superior to all other liens, from the first day of May in the year in which the taxes are levied until the same are paid. The next section [Cahill’s St. ch. 120, [[ 269] provides that taxes on personal property shall be a lien upon the personal property of the person assessed from and after the time the tax books are received by the collector. Section 255 [Cahill’s St. ch. 120, [[ 270] provides that personal property shall be liable for taxes levied on real property, and real property shall be hable for taxes levied on personal property, but the tax on personal property shall not be charged against real property except in cases of removals, or where said tax cannot he made out of the personal property. Section 183 [Cahill’s St. ch. 120, [[ 201] provides that when it becomes necessary to charge the personal property tax against real estate, the collector shall select for that purpose some particular tract or lot owned by the person owing such personal property tax and shall charge the tax against the same. Belleville Nail Co. v. People, 98 Ill. 399; Ream v. Stone, 102 Ill. 359; Parsons v. East St. Louis Gas Light & Coke Co., 108 Ill. 380, and Carter v. Rodewald, 108 Ill. 351. Section 224 [Cahill’s St. ch. 120, ]¶ 240] provides that tax deeds executed by the county clerk shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs or assigns, to the real estate thereby conveyed of the following facts: Seventh: That the sale was conducted in the manner required by law. And any judgment for the sale of real estate for delinquent taxes rendered after the passage of the act, except as otherwise provided, shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment or decree, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered, and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in eases where the taxes or special assessments have been paid, or the real estate was not liable to the tax or assessment.

In Carter v. Rodewald, 108 Ill. 351, it was sought to levy a personal property capital stock tax against the real estate of a railroad company. A bill was filed to restrain the collector from taking steps to charge the tax against the real estate, and to enjoin the receivers from paying the tax, on the ground that there was a prior trust deed on the property which was for the benefit of the bondholders and that the title was not in the railroad company. The court held that the interest of the bondholders under the trust deed, having been acquired long before the tax was assessed, the bondholders were entitled to the relief granted to prevent the making of the threatened charge against the real property of this personal property tax, and thus prevent clouding the title and impairing the securities covered by the trust deed.

In Parsons v. East St. Louis Gas Light & Coke Co., 108 Ill. 380, a bill was filed by the trustees and bondholders to foreclose a trust deed, and an attempt was made to collect a personal property capital stock tax levied against capital stock subsequent to the making of the trust deed. It was held that any lien in respect to such taxes was subsequent to that of the deed of trust and was to be held subordinate. To the same effect are Gaar, Scott & Co. v. Hurd, 92 Ill. 315; Binkert v. Wabash Ry. Co., 98 Ill. 205.

In Drake v. Ogden, 128 Ill. 603, on page 612, it is said: “A portion of the taxes levied were illegal, and the land was not liable for such tax. The fact that a large proportion of the tax was legal does not change the result. The illegal portion of the tax rendered the judgment and sale void. McLaughlin v. Thompson, 55 Ill. 249, is a case in point. There it was held that if any portion of the tax upon which a judgment is rendered was illegal, or if the judgment was for too large a sum, a sale and tax deed based upon such judgment would be void. The same doctrine is announced in Riverside Co. v. Howell, 113 Ill. 256. As the real estate was not liable for the tax as levied, the judgment did not prevent appellee from relying on the illegality of the tax.” It was also held in this case that section 224 of the Revenue Act [Cahill’s St. ch. 120, j[ 240] does not make the judgment against lands for taxes conclusive as an estoppel that the taxes included therein were legal taxes; that it shuts out all objections that might have been urged against the judgment except in cases of payment, or where the land was not liable for the tax, and that this embraces illegal taxes. To the same effect are McLaughlin v. Thompson, 55 Ill. 249; Riverside Co. v. Howell, 113 Ill. 256; Harland v. Eastman, 119 Ill. 22; Glos v. Collins, 110 Ill. App. 121.

The amended bill in the case at bar alleges that the trust deed to appellee was prior to the personal property tax; that the personal taxes were illegally made a charge against the real estate; that this action was wholly unauthorized by law, was void as to said real estate and tended to impair the lien of appeEee. Under the authorities cited, the amended bill stated a good cause for equitable relief, the chancellor properly refused to dissolve the temporary injunction and the order will be affirmed.

Order affirmed.


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    Julius Lurie, Appellee, v. Rock Falls Manufacturing Company, Appellant.
    Gen. No. 7,479.
    1. Sales — time of performance of sales contract of manufactured article. Where a manufacturer was given forty-five days or as soon thereafter as convenient, from the approval of the contract in question, to deliver the article contracted for, such terms meant that the manufacturer had to fulfill the contract within forty-five days, or within a reasonable time thereafter, or without unreasonable delay, or with due diligence.
    2. Sales — reasonableness of time of performance as jury question. Where the question of reasonableness of time for doing the work and delivering the goods in an action to recover money forwarded with an order was involved, it was for the jury to say whether the work was done within the forty-five days, or as soon thereafter as convenient, fixed by the contract.
    3. Instructions — necessity of correct instructions as to construction of sales contract. It is of the utmost importance that the instructions be correct on the rights of the parties to a sales contract of articles to be manufactured by the seller and delivered within a specified time or as soon thereafter as convenient where one of the principal issues for the jury is the reasonableness of the time of performance under the evidence.
    4. Contracts — when instruction as to construction of written and printed portions of contract inapplicable. An instruction was erroneous which told the jury that where typewritten and printed terms in a printed contract conflict, the typewritten part will govern and prevail over the printed, in the absence of evidence to the contrary, where there was no inconsistency nor conflict with reference to the only part of the contract to which such instruction could have applied.
    5. Contracts — construction of written and printed provisions. Neither the printed nor the written portions of a contract can be disregarded unless there is a conflict between the two, in which case the written portion will prevail.
    6. Sales — propriety of instruction as to timeliness of performance by seller. An instruction was erroneous which told the jury that if they believed that prior to the time plaintiff brought suit defendant had a reasonable time to comply with the contract in question, but failed to do so, and had not delivered nor offered to deliver the articles mentioned in the contract, they should find for the defendant, as such instruction omitted all reference to the cancellation of the contract by the defendant.
    7. Contracts — repudiation by one party as excusing performance by other party. Repudiation of a contract by one party before the time of performance relieves the other party from performance.
    8. Contracts — cashing check for purchase price as acceptance of contract by seller. The mere cashing of a check for part of the purchase price accompanying an order did not constitute an acceptance or approval of the contract in question, where the contract called for the payment of the amount thereof in cash, and therefore an instruction based upon a contrary assumption was misleading and prejudicial.
    9. Contracts — when instruction as to acceptance of order taken by agent erroneous. An instruction telling the jury that if they believed that a certain named person was the defendant’s agent and had authority to make the contract in question, then it was unnecessary for defendant to make formal acceptance, was erroneous where the contract provided in express terms that it should not be binding until accepted, and that all verbal agreements with the agent were contained in the order.
    Appeal by defendant from the City Court of Sterling; the Hon. I. L. Weaver, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 1, 1925.
    Carl E. Sheldon, for appellant.

      J. J. Ludens, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

Appellee, Julius Lurie, began suit in the city court of the City of Sterling against appellant, Bock Falls Manufacturing Company, a corporation, to recover $500 which was an advanced payment on a contract for the purchase of two hearses. There was a trial by jury, a verdict and judgment against appellant for $500 and this appeal was prosecuted.

Appellee fives in New York City, and appellant was doing business in Sterling, Illinois. On September 18, 1922, appellee signed an order with a salesman of appellant for two hearses at a cost of $9,000. Five hundred dollars was to be paid in cash; $2,500 was to be paid upon delivery; appellant was to take two used limousines at $1,000 each, and the balance was to be evidenced by eighteen equal notes due in equal monthly payments. The order provided that “the failure of purchaser to take car upon arrival at destination, or failure to accept delivery and make settlement upon terms of contract within ten days after notice that vehicle is ready for delivery, will be sufficient cause for the company to retain as damages the initial payment and retain the vehicle. It is agreed title shall remain in B. F. Mfg. Co. until vehicle is fully paid for. Upon default of the purchaser to perform any of the terms of this agreement, the company may declare the whole amount agreed to be paid, due and payable, or may take possession of the vehicle, whereupon the purchaser shall forfeit all rights. Delivery to be made forty-five days, 1922, or as soon thereafter as convenient. All orders are accepted and subject to delays occasioned by accident, strikes, fires, sickness, or causes beyond our control, and no damages for delay in delivery will be allowed. This contract cannot be cancelled, and all verbal agreements with agents are contained in this order, and the purchaser accepts receipt of an exact carbon duplicate of this order. Signed — J. Lurie. Signed — Rock Falls Manufacturing Company, by M. J. Coolahan, But subject to their approval. ’ ’

This order was received by appellant on September 21.1922. The cash payment provided for in the order was made by a check delivered to appellant’s agent who secured the order. The check was received and cashed by appellant who immediately began an investigation of appellee’s financial standing. On October 20, 1922, the contract was approved by appellant and the construction of the vehicles began. Appellant claims that the bodies of the hearses were practically completed when a letter dated November 27, 1922, written by appellee, reached appellant on December 1.1922, which said: “I am forced to cancel the order on the ground of not delivering as agreement.” Appellant stopped work, never shipped either vehicle, and this suit was commenced to recover the $500 paid at the time the order was given.

It is the contention of appellant that this order did not become a contract until the date of its approval by appellant, on October 20, 1922; that up to the time it was approved, it was an order which the company could reject, and that as soon as it was approved appellant began the work and prosecuted it as rapidly as possible until it was canceled by appellee. Appellee insists that a letter written by appellant on September 21, 1922, shows that appellant received the order and approved it; that if appellant desired to investigate the financial standing of appellee it should have held the check, not cashed it, and notified appellee; that the order show's that the parties contemplated the delivery within forty-five days, and it was the duty of appellant to fulfill the order within that time; that sixty-five days elapsed before the contract was canceled, no demand was made to comply with the contract, it never was complied with, and for that reason appellant is not entitled to recover.

The order, by its terms, was subject to the approval of appellee. It did uot become a valid and binding contract until it was approved. If it had never been approved, it certainly could not be successfully contended that appellee would have acquired any rights under it which he could have enforced. Appellant had a reasonable time after the order was received in which to investigate appellee’s financial standing in order to determine whether to accept or reject the order. After it was accepted it became a binding contract and related back to the date of the execution of the order. The mere fact that appellant caused the check to be cashed did not constitute an acceptance or approval. The $500 was payable in cash. In order to get the cash appellant had to present the check for payment. Appellant had forty-five days, or as soon thereafter as convenient, in which to fulfill the contract. These terms mean that appellant had to fulfill the contract within forty-five days, or within a reasonable time thereafter, or without unreasonable delay, or with due diligence. Scammon v. Germania Ins. Co., 101 Ill. 621.

On behalf of appellant the evidence shows that the work was started as soon as the order was approved, and that the bodies were practically completed when the letter of November 27, 1922, from appellee canceling the order was received; that it was not convenient to furnish these vehicles prior to that date on account of the shortage in materials, and the large amount of work on hand at that time; that appellant was putting the work through the shop as fast as it could; that it took experienced and expert workmen to do the work; that when the letter of November 27 was received appellant stopped work, which was practically completed, and that the same is a total loss.

The appellant had the right to have the question of the reasonableness of time in which the work was performed submitted to the jury as a question of fact, and it was for the jury to say whether the work was performed within the forty-five days or as soon thereafter as convenient. In this condition of the evidence it was of the utmost importance that the jury be correctly instructed as to the rights of the parties so they could properly determine the issues presented. On behalf of appellee the first instruction told the jury that “where typewritten and printed terms in a contract conflict, that in the absence of any evidence to the contrary, the typewritten part will govern and prevail over the part that is printed.” This order was on a printed form and part of the blanks were filled in in writing. The only part to which this instruction could apply is the part with reference to delivery being made in forty-five days or as soon thereafter as convenient. The law is that effect must be given if possible to all of the terms of a contract, and this applies to instruments partly written and partly printed. Neither the printed portion nor the written portion shall be disregarded unless there is a conflict between the two in which case the written portion will prevail. City of Chicago v. Weir, 165 Ill 582; Soucy v. Obert Brewing Co., 180 Ill. App. 69; Morris & Co. v. Rhode Island Ins. Co., 181 Ill. App. 500. There is no inconsistency nor conflict in the terms of the contract with reference to delay. The provision means that the contract shall be performed and delivery shall be made within forty-five days or as soon thereafter as convenient. This instruction should not have been given.

The second instruction given on behalf of appellee told the jury that if they believed from the evidence that, prior to the time that plaintiff brought suit, the defendant had a reasonable time to comply with this contract, but failed to do so, and has not delivered, or offered to deliver, the vehicles mentioned in this contract, then they should find the issues in favor of the plaintiff. This instruction omits all reference to the cancellation of the contract. The repudiation of a contract before the time of performance relieves the other party from performance. Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59; Fox v. Kitton, 19 Ill. 519; Chicago Title & Trust Co. v. Sagola Lumber Co., 148 Ill. App. 333. It was not the duty of appellant to complete the vehicles and deliver them to appellee if the contract had been canceled before the time specified therein, and the jury should have been correctly instructed on this point.

The third instruction on behalf of appellee told the jury that a contract may be accepted by the act of the parties showing that it is accepted, and if they believe from the evidence that the defendant accepted the check and received the money of the plaintiff, with the knowledge of the contract, “it is for you to say and believe whether or not the contract was accepted by the defendant.” The contract expressly provided that $500 in cash should accompany the order, but it also provided that the contract should not become binding until it had been approved by appellant. The mere fact that a check accompanied the order did not prevent appellant from cashing the check without thereby approving the contract. By cashing the check they simply received the cash provided in the order and the cashing of the check did not accept the order. This instruction was misleading and prejudicial.

The fourth instruction on behalf of appellee told the jury that if they believed from the evidence that Coolahan was the agent of the defendant and had authority to make the contract in question, then it was unnecessary for the defendant to make any formal acceptance of the contract. There is no evidence on which to base such an instruction. It is in direct conflict with the express terms of the contract which provide that it shall not be binding until accepted and the further provision that all verbal agreements with the agent are contained in the order. It in effect tells the jury that they have the right to disregard the terms of the written contract and to act as they see fit in utter disregard thereof.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Clara M. J. Farson, Appellee, v. Arthur J. Shoger, Appellant.
    Gen. No. 7,496.
    1. Vendor and purchaser — abandonment of contract by purchaser. Where, upon objections being made to the title to property described in a contract, the purchaser notified the seller that he did not want the property and repudiated the contract, and the seller acquiesced, and thereafter, after considerable delay, the purchaser again took up the matter with the seller, the former contract could not be relied on, under the circumstances, in a subsequent suit by the seller for the balance of purchase money.
    2. Vendor and purchaser — application of forfeited earnest money as recognition of prior abandoned contract. Where, after a former contract for the sale of real estate had been repudiated by the purchaser and such repudiation had been acquiesced in by the seller and the earnest money had been retained by him under the terms of the contract, and where subsequently the purchaser again took up the matter and a sale was negotiated, the allowance of said amount of such earnest money to the purchaser could in no sense be considered as a recognition of the former contract, in an action by the seller for the balance of the purchase price.
    3. Vendor and purchaser — sufficiency of title conveyed. Where a former contract for the sale of real estate had been repudiated by the purchaser and such repudiation had been acquiesced in by the seller and the matter had been taken up anew and a conveyance made after new negotiations, such conveyance was held subject to a deed to the strip in controversy, made after the execution of the former contract, where the deed expressly provided that the conveyance was made subject to the rights of parties in possession.
    4. Vendor and purchaser — stopping payment of purchase money checks after conveyance as defeating vendor’s right of action for price. Stopping payment of checks turned over to the seller in payment of the balance of the purchase price of realty, upon the delivery of the deed, could not defeat the seller’s action for the amount of the checks, where the purchaser continued to hold title and in the absence of any offer to reconvey.

      Appeal by defendant from the Circuit Court of Kane county; the Hon. William J. Fulton, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 8, 1925.
    Olney C. Allen, for appellant.
    Harry G. Hempstead and D. A. Green, for appellee.
   Mr. Justice Partlow

deEvered the opinion of the court.

AppeHee, Clara M. J. Farson, began an action of assumpsit in the circuit court of Kane county against appellant, Arthur J. Shoger, to recover $1,400 claimed to be the balance due upon the purchase price of a piece of real estate, together with protest fees of $2.85 on two checks given in payment thereof upon which the payments had been stopped. There was a trial by the court without a jury, judgment in favor of appellee for $1,402.85, and this appeal was prosecuted.

Appellee was the owner of a piece of land in Kane county of irregular shape containing about one acre, located at the junction of three concrete roads, one leading to De Kalb, one to Geneva and the other to St. Charles. On the north side of the land was a concrete road extending east and west, and on the. west side of the land was another concrete road extending north and south, which roads intersected at the northwest corner of the premises. Beginning a short distance south of this intersection, on the north and south road, there was a third concrete road which extended in a curve to the northeast and connected with the east and west road a short distance east of its intersection with the north and south road. These three concrete roads left a piece of land containing about one-third of an acre, almost triangular in shape, lying in this space between these three roads. This triangular piece is in controversy in this case, and the question is whether it was included in the contract of sale executed between appellant and appellee, and whether it was subsequently conveyed by the deed from appellee to appellant together with the balance of the land owned by appellee. It is the contention of appellant that this triangular piece had been conveyed to the State of Illinois and was owned by the State at the time his contract with appellee was executed and at the time she conveyed the premises to him, and for that reason the most important part of the premises described in the contract and conveyed by the deed did not become his property, and therefore he was under no obligations to accept the deed given him by appellee. He also contends that the title to the premises was not merchantable as provided in the contract.

On January 12, 1923, appellee and her husband entered into a written contract, by the terms of which she agreed to convey, by warranty deed to appellant, the acre of land in question, free and clear of incumbrance. The land is described in the contract by metes and bounds, and excepts therefrom that part thereof granted and dedicated on September 2, 1921, to the State of Hlinois for use as a public highway. It appears from the evidence that at the time this contract was entered into the curved concrete road extending northeast and southwest across the northwest corner of this land had been constructed under a deed conveying that strip to the State, which deed was dated September 2, 1921. The contract further provided that the abstract of title furnished by appellee was to show a merchantable title. The consideration was $1,500, of which $100 was paid at the time of the execution of the contract, and the balance of $1,400 was to be paid upon the furnishing of a merchantable abstract of title. The contract further provided that in case of the failure of appellant to make the payments or perform the covenants, the contract might, at the option of appellee, be forfeited and determined, in which case all payments made should he retained by appellee in satisfaction of damages. Appellee testified that at the time the contract was signed she told appellant she could not sell the triangular piece because she had deeded it to the State of Illinois. Appellant admitted that appellee did tell him this but he testified that she did not so inform him until after the contract was signed, and he told her the title ivas in her and that the contract covered it.

After the contract was entered into, appellee furnished an abstract of title to which objection was made by appellant, whereupon, on March 21, 1923, appellee filed her bill in the circuit court to quiet title, and on August 6, 1923, a decree was entered quieting the title as prayed in the bill. On February 12, 1923, appellant wrote a letter to appellee in which he said: “There seems to be some question as to whether that triangular piece of ground between the cement roads in question is owned by private interests or by the State. The abstractor, Mr. DeVoll, is of the opinion that said triangular piece of ground between the State roads is owned by private interest. In that case the title to said triangular piece of ground would vest in you until you deliver a deed to me. I expect to have Mr. Eoy Wells, the county surveyor, survey the land in question for me, so I will know definitely just what land I am getting. I am also taking this matter up with the State highway commissioners for the purpose of determining just how things stand.”

On March 12, 1923, appellant wrote to appellee as follows: “After having my attorney look the abstract over carefully, I have run into a good many objectionable features which has changed my opinion about buying your property. So I have decided that I cannot use your property.” The letter suggested that the $100 advance payment be divided equally between them. On April 16, 1923, appellee deeded to the State of Illinois a strip in the northwest corner for road purposes. Appellee claims that on Septemher 2, 1921, she had deeded a strip at the northwest corner to the State for road purposes and on it had been constructed this circular concrete road connecting the two roads; that afterwards it was discovered that there was a mistake in the description, and the deed of April 16, 1923, was made to correct this mistake. However this may be, it clearly appears that before the deed was made to the State on April 16, 1923, and before the contract was executed between these parties on January 12, 1923, that the concrete road connecting the two roads had been built.

Nothing further seems to have been done about this matter between appellant and appellee, and in the winter of 1923, appellee went to California where she remained for several months. Upon the return of appellee from California, appellant, on April 14, 1924, in company with his father and the customer for whom he claimed to be purchasing the land, called on appellee to buy the land. As a result of these negotiations, on that date, a deed was delivered to appellant and accepted by him conveying the land to him. He gave appellee two checks which are in controversy in this case, one being for $1,300 on the Aurora National Bank, and the other for $101.98 on the First National Bank of Aurora. It is conceded by appellant in his reply brief that the land described in the contract of January 12, 1923, was the same land covered by the deed, and that both covered the triangular piece, but it is the contention of appellant that the deed did not convey the triangular piece for the reason that, subsequent to the date of the contract, appellee had conveyed it to the State of Illinois.

Appellant, who is a real estate broker, testified that at the time the deed was delivered to him by appellee he told appellee that he had a customer who wanted the land for the purpose of erecting an oil station and restaurant, and that on April 14, 1924, when appellant in company with his customer and father called at appellee’s house, appellant asked appellee if the land he was buying extended over to a certain adjacent confectionery stand, and she replied “just about.” Appellee testified that at the time the deed was delivered by her to appellant, appellant inquired of her as to where the line was in regard to a certain confectionery stand and she replied, “You will have to look at the map or blue print — I do not know how long it is,” and he said, “Are those two small signs north of the confectionery stand on your property” and she replied, “No, the only sign on my property is the Ford sign, quite to the north line,” and he asked her how far her line was from that place and she said, “Not so very far.”

After the deed was delivered and the checks had been given to appellee, appellant testified he went to the land, and with a tape measured it, and discovered that the land described in the deed was from 150 to 200 feet from the confectionery stand. Immediately he called appellee by telephone, told her the result of his measurements, and that his client did not want the land under those circumstances. He requested her not to cash the checks, but she said it was too late, so the next day he stopped payment on the checks. There were certain conferences later between the parties, but they could not come to any settlement, and appellee began suit to recover the amount represented by the checks, being the balance of the purchase price.

In determining whether the judgment as rendered should be affirmed, it will not be necessary to consider many of the questions of law argued in the briefs. On January 12, 1923, the parties entered into a valid contract of sale. This contract contained all of the terms of sale and was capable of enforcement by or against the parties thereto. An abstract of title was furnished to which appellant objected on the ground that it did not show a merchantable title. Without waiting for appellee to quiet the title, appellant, on March 12, 1923, wrote the letter to appellee in which he told her he had decided he could not use the property and asked that the $100 advance payment he divided. If appellee had seen fit to hold appellant to his contract there might he a serious question as to appellant’s right to escape liability by his refusal to take the property. It is apparent, however, that appellee accepted this refusal of appellant as a termination of the contract. She acquiesced in it, and took no further steps to complete it, or to force appellant to comply with its terms. She later filed her bill to quiet her title and secured a decree under her bill. This was not, however, for the purpose of completing the contract, for she took no further steps to that end. On April 16, 1923, appellee deeded the strip at the northwest corner to the State. It is possible that this latter deed covered more land than the original deed, but this deed was notice to appellant of its contents. On April 14, 1924, when appellant together with his father and customer called upon appellee, it certainly cannot be successfully contended that he was under contract with appellee to purchase the land. Fifteen months had elapsed since the contract was entered into, and almost thirteen months had elapsed since appellant had repudiated the contract, during which time practically nothing had been done to carry out its terms, and both parties apparently considered it as of no force and effect. If appellant had attempted to enforce his contract by a bill for specific performance, there is no question but what the letter written by him on March 12, 1923, together with the other facts and circumstances in evidence, would have been a complete bar to such a suit, and for that reason we hold that on April 14, 1924, when appellant called on appellee, no contract existed between them with reference to the sale of this land.

On April 14,1924, when appellant called on appellee, he knew all about the land and the conditions of the title. The contract of January 12, 1923, expressly excepted from the description the part of the land deeded to the State on September 2, 1921. Appellant in his letter of February 12, 1923, told appellee there seemed to be some question as to whether the triangular piece between the cement roads was owned by private interests or by the State. He further told her he intended to employ surveyors to ascertain exactly what land was included under the contract. The deed of April 16,1923, to the State had been executed, it was probably upon record, and, if it was, it would constitute notice to appellant as to its contents. For almost fifteen months appellant had known the description of the land he wanted to buy, and consequently he had every opportunity to investigate the boundaries and ascertain just what land was included. He also knew the exact condition of the title and that a decree had been entered to quiet it. With all of these facts in his possession, without any contractual relation existing between him and appellee, on April 14, 1924, he called on appellee for the purpose of buying the land, and he did buy it. The only terms of the original contract which it could possibly be claimed were taken into consideration were the purchase price of $1,500, and that appellee allowed him credit for the $100 which he had paid at the time the contract was entered into. This $100 was a mere gift to appellant, or a reduction on the price originally agreed upon. It belonged to appellee after the contract was repudiated and could in no sense be considered as a recognition of the contract. Appellee delivered to appellant a deed, together with the abstract of title, and appellant gave appellee the two checks. These acts completed the transaction. The deed from appellee to appellant expressly provided that the conveyance was made subject to the rights of parties in possession of said premises. At that time the State of Illinois was presumably in possession of the premises covered by its deed of April 16, 1923, and the deed from appellee to appellant was made subject to the rights of the State of Illinois. The effect of the delivery of the deed and the giving of the checks was to vest appellant with the title. Appellant, by tendering the deed back to appellee, or even destroying it, would not reinvest appellee with the title. There is no evidence of any offer by appellant to reconvey by deed to appellee after the date of the delivery of the deed of April 14, 1924. After appellant secured the title he could not defeat appellee’s recovery of the $1,400 by merely stopping payment on the check, and he will not now be heard to complain, in this suit, that the title is not merchantable. As long as he had title appellee had a cause of action against him for the amount of the checks.

We find no reversible error and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Jett

text:
    Oscar H. Ogren, Plaintiff in Error, v. Rockford Star Printing Company, Defendant in Error.
    Gen. No. 7,453.
    1. Libel and slander — when publication against candidate not privileged. There is no defense on the ground of privilege to a malicious publication of libelous matter against a candidate for public office.
    2. Libel and slander — definition of “libelous matters.” “Libelous matters” mean such publications as are made falsely, through malice and without good motives and not for justifiable ends.
    3. Libel and slander — sufficiency of special plea of privileged-publication. Special pleas in an action for libel properly set up the legal right and duty of the newspaper defendant, which charged that it was the privilege and duty of the defendant newspaper to publish, for the information and instruction of its patrons and of the people, statements and reports representing the alleged policies, doctrines and proposals of any political party which nominated a candidate for public office and to state and report the attitude and belief together with the public expressions of the candidates upon civic, social and other questions.
    4. Libel and slander — sufficiency of special plea of privileged

      publication. A special plea, in an action for libel, stated facts sufficient to give the defendant newspaper the right to tell the truth about a political organization and its candidates and issues by alleging in substance the existence, in the city in question, of an organization affiliated with the general socialist party, which devoted itself to the promulgation of socialism; and that plaintiff was nominated by such socialist party for mayor and that he accepted the nomination and represented the socialist party and its principles and doctrines, and that he was actively engaged in campaigning the city for votes and had made the speeches and other statements as charged in the declaration, and that the publication was made to enlighten the voters as to the issues of the election and the merits of the candidates, all for good motives and justifiable ends, and without malice.
    5. Libel and slandeb — publication charging socialism as libelous. A publication stating that the real issue before the voters in an election was socialism, was not libelous.
    6. Libel and slander — construction of special plea as entirety. All the language used and all the matters and things averred in a special plea in an action against a newspaper by a candidate for public office are to be taken in their entirety in determining whether there is set up such a statement of facts that will permit the defendant to submit the question as to whether or not the publication was made with good motives, without malice and for justifiable ends.
    7. Libel and slander — right of defense to libelous publication. A defendant in an action for libel may establish a defense to a publication that is libelous in its character.
    8. Pleading — party not required to plead to exhibits. The defendant in an action for libel was not called upon to answer or plead to that portion of the declaration purporting to be merely an exhibit consisting of copies of the publications in question.
    9. Pleading — exhibits attached to declaration as surplusage. An exhibit attached to a declaration must be treated as mere surplus-age, and as serving no purpose as a pleading.
    10. Harmless error — harmlessness of ruling as to deposition where cause decided on pleadings. Error could not be assigned upon the refusal to suppress a deposition, where the motion to suppress was passed upon prior to the time of passing upon the demurrer to special pleas, and where the plaintiff elected to stand by his demurrer, so that no evidence was necessary, and the action of the court in sustaining the pleas was not based in any way upon the deposition.
    Error by plaintiff to the Circuit Court of Winnebago county; the Hon. E. D. Reynolds, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed June 27, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Roy F. Hall, for plaintiff in error.
    Fisher, North, Linscott & Gibboney and William L. Pierce, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.

Oscar H. Ogren, plaintiff in error, hereinafter known as plaintiff, began this suit in the circuit court of Winnebago county against the Bockford Star Printing Company, hereinafter known as defendant, to recover damages for the publication of three alleged libels. A jury trial was had and the jury returned a verdict of not guilty and judgment was rendered against the plaintiff.

A writ of error was sued out of the Supreme Court and jurisdiction invoked on the ground that a constitutional question was involved. The case was reversed and is reported in 288 Ill. 405. At the time of the institution of this proceeding, the declaration consisted of four counts. The Supreme Court held the fourth count bad because two or more causes of action for libel were relied upon in said count. Upon the case being redocketed in the circuit court of Winnebago county, the case stood for trial in that court on the first three counts. It appears from the declaration that the plaintiff had lived in Bockford for many years and had worked at different occupations, served two terms in the city council, and was at the time of the publications, alleged to have been libelous, a candidate for mayor on the socialist ticket. In the election in question he had as his opponent W. W. Bennett. The alleged libelous articles were published by the defendant in the manner of advertisements, during the campaign that was being carried on for the election of mayor and other city officers in the City of Bockford, one at a time on three different days, namely: April 15, 16 and 17, 1915, in the Rockford Morning Star. Each article was made the subject of a count in plaintiff’s declaration. In so far as they are made a part of the declaration, and appear in the abstract, they are copied verbatim in the order in which they were published and are numbered respectively 1, 2 and 3, to wit:

1. “The real issue is socialism. Rockford faces a calamity. Without evasion or digression, the real impending and fearful cloud hanging over Rockford today is, The Menace of the Red Flag. Do you want to turn Rockford over to that emblem? * * * This is a typical expression of socialistic thought. Do not be deceived by sugar-coated and misleading speeches being made on the stump now by Mr, Ogren to get votes. Stop and think. Find out what socialism really is. Meet the issue without passion or prejudice. Before you decide how you will vote next Tuesday, inform yourself. A vote for Oscar Ogren will be a straight vote for socialism.”

2. “Twenty-five new industries have been established in Rockford during the past four years. Will one industry locate here if we elect a mayor who, upon taking his seat in the council, made this statement? Statement by Alderman Oscar Ogren on taking his seat in council May 3, 1909: ‘I have been elected by the socialist party of my ward. All my votes and actions while in this council will be in direct opposition to all corporations, regardless of what the question or the issue is. That is why I am here — that is my mission in the council.’ * * * Honest working men want work. Grab, dynamite and blowing tenement houses to hell, do not produce work. Socialism would destroy the American home. A vote for Ogren is a vote for socialism.”

3. “Socialism means terror, unrest and finaueial ruin. None of these citizens want the red flag; The working man — who values a steady job. The home owner — who wants it protected. The man with the savings account — who wants it to grow. The young man — who is looking to the future. The minister— whose calling should be honored. The doctor — who is serving humanity. The merchant — who deserves a square deal. The lawyer — who stands for human rights. The plain, substantial citizen — who puts patriotism and civic pride before class prejudice and sectional hatreds.

“No woman can be true to herself and her home and vote for socialism. No mother — who has a son or daughter. No first voter — who regards the ballot justly. No housewife — who loves her home and family. No club woman — who knows the needs of womanhood. No woman wage earner — who knows the evils of business unrest. No professional woman — who knows the danger of epidemics. No church member— who appreciates the sanctity of her church. No school teacher — who wants sanity to prevail. No student— who understands American tradition. No one of these women would be spared — were the wild dreams of socialists given official sanction. A vote for Ogren is a vote for socialism. Vote for Bennett and preserve the peace and good will of Rockford.”

“Rockford’s socialism is the rankest of all. Not one of the writers in all the socialistic propaganda could be more violent than this one. A vote for Ogren is a vote for this platform. * * * Do you want Rockford to become the testing ground for every wild scheme which might be presented by men who urge the use of dynamite and blowing tenements to hell? Rockford is in danger. It needs every vote. A vote for Ogren is a vote for socialism. ’ ’

The articles all contain the following Words aud sentences at the respective places in the articles as above copied where the stars or asterisks occur, and are to be considered as inserted in each article at the places thus indicated, to wit:

“Read what Oscar Ogren, now candidate for mayor, said at a public meeting at the Majestic Theater, February 12,1915: ‘We don’t want work. What we want is a division of those profits that have already been made, I am a rebel. There are men out there "in this audience that are just as big rebels as I am, but they haven’t the gift of gab that I have. If you really want work, I know where to make it, and I am in favor of going into Chicago and taking dynamite and blowing those tenement houses to hell. ’ ■’ ’

Upon the cause being redocketed in the circuit court, the defendant pleaded the general issue and three special pleas. The special pleas replied to the three counts of the declaration respectively. Each of the special pleas set up that the Rockford Morning Star was a newspaper published and circulated daily in the City of Rockford, and that it was the privilege and duty of such paper to publish for the information and instruction of its patrons, and of the people, statements and reports representing the alleged policies, doctrines and proposals of any political party which nominated a candidate for public office in said city, and also to state and report the attitude and beliefs and public expressions of any and all of such candidates upon governmental, municipal, civic and social questions. It is. then averred that for a considerable time prior to the time of the alleged publications, there existed in the City of Rockford a political and propagandist organization, which said party, or organization, was a branch of and affiliated with the general socialist party or organization, which during all of the time aforesaid devoted itself to the promulgation of the alleged principles, doctrines and proposals of socialism. In said special pleas it is further averred that the socialist party nominated the plaintiff as a candidate for the office of mayor of the City of Rockford, and also nominated other individuals as candidates for other city offices; that the plaintiff had accepted said nomination and represented the said socialist party and its alleged principles, doctrines and proposals before the people of the City of Rockford, and was then actively engaged in campaigning said city for votes. The pleas then state that the defendant did publish in its newspaper of and concerning socialism, and of and concerning the plaintiff, the matters which constitute the published articles set forth. In brief, the special pleas set up in detail the existence of the socialist party, that the plaintiff was its candidate for mayor, regularly nominated; that he had made the speeches and other statements as charged in the declaration; that the publication was said of and concerning the plaintiff, and of and concerning socialism, all for the purpose of bona fidely enlightening the voters of the city as to the issues of the election, and the merits of the candidates, all for good motives and for justifiable ends, and wholly without malice. The plaintiff demurred generally and specially to the three special pleas. The court overruled the demurrer and the plaintiff, having neglected to plead further, judgment was rendered against him by the court for costs of suit, and he brings this case to this court by writ of error.

It is the contention of the plaintiff that the Supreme Court, in its opinion, when this cause was heard by it, held that the articles published are libelous per se, and that the only good motives and justifiable ends stated in the pleadings were that it was the privilege and duty of the defendant to publish the articles; that the court also held that there was no such privilege or duty and that it did not constitute a defense. Plaintiff also insists that whatever is averred in the pleas is done by way of conclusions and that no facts are pleaded. There appears to be, from the arguments of the respective parties to this proceeding, much controversy as to what the court did hold to be the law in cases of this character under section 4, article II, of the Constitution which reads as follows: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.”

The court, after quoting the above constitutional provision, on page 416 said: “This section clearly and unequivocally lays down the full and correct rule for this State, when the truth is a defense to a libel, in both civil and criminal suits. It appears this is the first time the question has been raised in a civil suit since our last constitution was adopted, but there is no mistaking the meaning of that section, which is, that the truth is a defense in both civil and criminal suits only when published with good motives and for justifiable ends. The above section of the constitution is clear and unequivocal, and states a sufficient and definite rule by means of which a defendant may establish a defense to a publication that is libelous in its character. It is, therefore, self-executing and needs no statute to put it in force.”

Plaintiff, in his argument, quoted quite freely from the decision of the court as found on page 417, and insists that from the meaning of the language used it precludes the right to publish the articles declared upon.

The effect of the argument is that it is impossible to properly plead a right, duty and privilege, as is contended for by the defendant. In assuming this position, plaintiff overlooks an important part of the opinion from which he quotes where it says that: “It is not the privilege or duty of one publishing a newspaper to publish libelous matter against any candidate for public office. Such person has no more right or privilege in that regard than any other person in the same community,” that the court was speaking of “libelous matter,” that it had in mind the “falsehoods and calumny” against public officers and of “malicious publication and libelous matters.”

As we under stand the opinion of the court, and the construction we place on the language thereof, the “libelous matters,” mean such publications as are done falsely, through malice and without good motives, and not for justifiable ends. The court does not hold that the defendant could not publish the alleged libelous articles, if the same were published with good motives, and for justifiable ends, if it assumed the truth of the publications. The court did say: “That when any one becomes a candidate for public oEce, conferred by the election of the people, he is considered as putting his character at issue, so far as it may respect his fitness and qualification for oEce, and every one may fully comment on his conduct and actions. His acts may be canvassed and his conduct boldly censured.” The court, in view of the provision of the constitution, holds that an article published may be privileged if published for the purpose of informing the public of the merits of the issues involved, and of the character of a candidate for oEce in order that the voters may intelligently choose, if the facts therein be true and were published without malice and with good motives and for justifiable ends. To a malicious publication of libelous matter against a candidate for public oEce there is no defense on the ground of privilege. If a matter is published for the purpose of informing the public of the things the candidate stands for, and of his character and history, then it would not be a malicious publication, and if it is not a malicious publication it can be defended against if the matter published is true, and done with good motives and for justifiable ends.

We have, therefore, reached the conclusion that the construction placed upon the decision of the court by "the plaintiff is not correct. It is also insisted that the special pleas are bad because no facts are pleaded and that the averments consist of mere conclusions. The general and fifty-nine special demurrers to the three special pleas are the result, in our opinion, of the construction placed by the plaintiff upon the holding of the Supreme Court. The plaintiff in his argument says: “The points made against each of these pleas are that each plea seeks to show good motives and justifiable ends, but in each case what constitute the good motives and justifiable ends is that the newspaper had a privilege and a duty and a right to make publication, whereas this court (meaning the Supreme Court, this cause having been transferred by that court) held that there was no such privilege, duty or right.” It will readily be seen from the above quotation from the argument of the plaintiff that he is in error in the construction he places upon the decision of the court. The question now is, do the pleas set up facts giving the defendant the right to insist upon the defense relied upon in this proceeding? Each of the special pleas charges that the Rockford Morning Star was a newspaper published and circulated in the City of Rockford, and that it was the privilege and duty of such paper to publish for the information and instruction of its patrons, and of the people, statements and reports representing the alleged policies, doctrines and proposals of any political party which nominated a candidate for public office in the city and to state and report the attitude and beliefs, together with the public expressions of any and all such candidates, upon governmental, municipal, civic and social questions. It was certainly the legal right and duty of any newspaper to make such publication. It is through the medium of the public press that the people, more or less, become informed of the record of candidates for office, and of the principles for which they stand and advocate. If this right is abridged then those who are called upon to make a choice between candidates will be deprived of a means to become fully informed of the candidates and what they represent.

The first plea further states that prior to the time of the alleged publication there existed in the City of Rockford a political and propagandist organization, which was a branch' of and affiliated with the general socialist party organization, which devoted itself to the promulgation of the principles, doctrines and proposals of socialism; that the socialist party nominated the plaintiff as a candidate for the office of mayor of the City of Rockford at an election to be held, and also nominated other candidates for city offices; that the plaintiff had accepted the nomination; that he represeated the socialist party and its principles, doctrines and proposals before the people of the City of Bock-ford, and was then actively engaged in campaigning the city for votes.

In our opinion, these averments are statements of fact; facts sufficient to give a newspaper the right to tell the truth about any political organization and its candidates and issues. It is then stated in the plea that in accordance with such right the defendant did publish in its newspaper, of and concerning socialism and of and concerning the plaintiff, the matters which constitute the published article set forth, and that as the plaintiff was the avowed candidate for the office of mayor of the socialist party, and having accepted the nomination for that office,11 That a vote for said plaintiff for said office, at said election, would be and constitute a straight vote for socialism.” The principal objection to the first plea is to the language last above quoted. Since the first special plea sets forth in detail that there existed in the City of Bockford a political organization which was a branch of and affiliated with the general socialist party organization, which devoted itself to the promulgation of the principles, doctrines and proposals of socialism, that the socialist party nominated the plaintiff as candidate for the office of mayor and that he had accepted the nomination, that he represented the socialist party and its principles, it therefore naturally follows as a fact that a vote for the plaintiff would be a vote for socialism. If this language was not found in the plea at all the plea would be sufficient, after having set forth in detail the situation relative to the party, its belief, the candidacy of the plaintiff and his utterances, and the result would necessarily follow that a vote for the plaintiff would be a vote for socialism. It is also insisted that the said first special plea is bad because of the averment that, “the real issue before the voters was socialism.” This language is not libelous. Moreover, the plea sets forth in detail a set of facts which shows, if true, the real issue was socialism. It is said of the averment “the then fearful cloud hanging over Eockford was the menace of the Bed Flag” is a conclusion and the plea is therefore bad. The argument on the part of plaintiff is that this language meant that the Bed Flag is an emblem of and typifying socialism and socialistic propaganda as advocated and promulgated by him as candidate on the socialist ticket. It will be observed that all that part of the plea which states the fact of the candidacy of the plaintiff, his beliefs, his speeches and socialism as expounded by him, constituted some of the facts on which the statement was made that the fearful cloud hanging over Eockford was the menace of the Bed Flag, in the sense and under the meaning as explained in the plea, and we think meets the alleged meaning given to it in the declaration. In relation to the averment, “Do not be deceived by sugar-coated and misleading speeches being made on the stump now by Mr. Ogren to get votes,” plaintiff complains that the plea does not state wherein it is misleading or when and where he made such speeches. This statement was evidently made by way of comment. There is no allegation in the declaration by way of innuendo, so we must give to the language its natural, •usual and ordinary meaning. The declaration does not undertake to state what the words “sugar-coated” mean nor what is meant by “misleading speeches.” The charge is that the defendant did say not to be deceived by the speeches, and the reply was that the plaintiff was making misleading and sugar-coated speeches. The declaration charges he made speeches both in the city council and at the Majestic theater. The plea states that this part of the alleged libelous publication was by way of comment on the statements of the plaintiff, which explains what was meant. Many other objections are made to the first special plea. It is difficult to follow the plaintiff in all of his contentions in view of the fact that he selects a sentence here and there in the plea and insists that it is an averment of a conclusion. When all the language used and all the matters and things averred in the plea are considered together, it is found that the plea in its entirety sets up such a state of facts that will permit the defendant to submit the question as to whether or not the. publication was made with good motives, without malice and for justifiable ends.

We do not feel called upon in passing upon the special pleas to go into detail with reference to each particular objection. The objections lap and overlap each other. The same argument that applies to the first special plea is equally applicable to the second and third special pleas. We are of the opinion that the second and third special pleas each present such a state of facts that the defendant should be permitted to go to the jury on the question as to whether or not the publication was made with good motives, for justifiable ends and without malice. Since the rule is that a defendant may establish a defense to a publication that is libelous in its character, we are of the opinion that the special pleas, when considered in the light of the rule as announced in the reported case, present such a state of facts that the defendant should not be precluded from presenting its defense.

It appears that copies of the publications were attached to the declaration as exhibits. An instrument relied upon in a common-law pleading must be set out therein according to its legal effect or in hceo verba. Common-law pleading cannot be done by way of exhibits. An exhibit attached to a declaration must be treated as mere surplusage, and as serving no purpose as a pleading. The defendant is not called upon to answer or plead to that portion of the declaration that purports to be merely an exhibit.

Complaint is made of the action of the court in refusing to suppress the deposition of Mahlon H. Day. It appears that the motion to suppress the deposition was passed upon prior to the time of the passing upon the demurrer to the special pleas. When the plaintiff elected to stand by his demurrer he admitted the truth of all of the pleas that were well pleaded. No evidence was required. The action of the court in sustaining the special pleas was not based in any way upon the deposition.

In conclusion we are of the opinion that the court did not err in overruling the general and special demurrer to the special pleas.

The judgment of the circuit court of Winnebago county is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice O’Connor

text:
    The People of the State of Illinois ex rel. Philip Q. Rohm, Appellee, v. Nicholas R. Finn et al., Appellants.
    Gen. No. 30,091.
    1. Mandamus — necessary parties in mandamus to try right to civil service office. In mandamus against civil service commissioners to command recognition of the relator’s right to the office of first assistant superintendent or deputy superintendent of streets, where it was charged that a new ordinance was passed to oust the relator, a civil service employee, from his position created by a former ordinance and to re-establish the office and install another person, two assistant superintendents who had taken a promotional examination for the position or office in question were not necessary parties, as the fact that they might be incidentally interested was not sufficient to require them to be made parties.
    2. Municipal cobpobations — construction of ordinance creating new civil service office. The rule that neither the City of Chicago nor the Civil Service Commission, nor both combined, can abolish a position and later re-establish it for the purpose of installing a different person in the position, where the employee is under civil service, considered in mandamus by a civil service employee to command recognition of his office, etc., where it was claimed that a new ordinance was passed to oust the relator from his office created by a former ordinance, and to re-establish the office and install another person, and held, after considering both ordinances, that there was no attempt to separate the relator from his position, and that the office created by the new ordinance was not essentially the same as that created by the prior ordinance.
    3. Municipal corporations — power to abolish civil service office. A city may not, by the passage of an ordinance, abolish a position created by a prior ordinance so as to oust the holder, who is under civil service, by merely changing the name of the position, and such action would be illegal.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Joseph R. David, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed and remanded with directions.
    Opinion filed June 3, 1925.
    Rehearing denied June 10, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Francis X. Busch, Corporation Counsel and Francis J. Vurpillat, Asst. Corporation Counsel, for appellants.
    Schuyler, Ettelson & Weinfeld, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Philip Q. Rohm filed his petition in the superior court of Cook county praying for a writ of mandamus, directed to the three civil service commissioners, the treasurer, city comptroller, commissioner of public works and the superintendent of streets of the City of Chicago, commanding them to recognize the right of the petitioner to occupy the office, position or place of employment as first assistant superintendent of streets or deputy superintendent of streets (by whichever name they chose to call the position or place) and to perform the duties and receive the emoluments thereof. The respondents filed a demurrer to the petition, which was overruled, and they were ordered to answer within three days. They filed a joint and several answer and the matter was submitted to the court without a jury on the petition and answer, and the court having considered the petition and answer found that all the allegations of fact alleged in the petition were admitted by the answer to be true. A judgment was entered on the finding, awarding the peremptory writ of mandamus as prayed for, to reverse which the respondents prosecute this appeal.

The allegations of the petition so far as it is necessary for us to state them here are to the effect that the relator for more than seven years prior to the filing of the petition was a civil service employee of the City of Chicago, occupying the office or place of first assistant superintendent of streets; that during all that time he had faithfully and efficiently discharged the duties of his position and had never been guilty of or charged with any dereliction of duty or .the violation of any civil service rules; that on the 15th of July, 1924, the city council passed an ordinance purporting to abolish said office of first assistant superintendent of streets and to create, in lieu thereof, the office of deputy superintendent of streets; that the duties of both places were essentially the same and that the only change made by the ordinance of July, 1924, was to change the name of the office; that the respondents consider the office of deputy superintendent of streets to be a new office and were about to take steps to appoint a person other than the relator to fill such office in violation of the relator’s rights as a civil service employee and that the acts of the respondents were done in bad faith and for political reasons.

The answer of the respondents admitted many of the material allegations of the petition, setting up the ordinance which created the office of first superintendent of streets, by virtue of which the relator was occupying such position as well as the new ordinance of July, 1924, and averred that the new ordinance was passed to reorganize the Bureau of Streets so as to create the new office or position of deputy superintendent of streets and to make other changes therein specified. The answer denied that there was any bad faith in the passage of the ordinance or what had been done by the respondents and denied that any political reasons were involved, but averred that the ordinance was passed by the unanimous vote of the city council. The answer further set up the civil service rules in force and effect in the City of Chicago. Other matters are set up in the answer, but it is unnecessary for us to refer to them here.

The material provision of the old ordinance which established the Bureau of Streets and created certain positions may be found in sections 3234 to 3240, both inclusive, of the Municipal Code of 1922. Section 3234 provides for the establishment of a Bureau of Streets which shall be under the jurisdiction of the commissioner of public works; that it should have control of all the matters concerning the streets of which the Department of Public Works had jurisdiction; that it should embrace the superintendent of streets, the first assistant superintendent of streets, the second superintendent of streets, the third assistant superintendent of streets and such other employees as the city may provide. By section 3235 the superintendent of streets was given supervision of the Bureau, of all the activities of the department with relation to streets and he was required to perform such other duties as might be required of him by the commissioner of public works or the ordinances of the city. By section 3236 the superintendent of streets was given charge under the supervision and direction of the commissioner of public works of the maintenance, repairs and cleaning of the streets, sidewalks and public ways of the city; the removal of dirt and garbage and the control of teams and men employed in such work. There was an exception made where the maintenance or repairs were to be paid by special assessment. Section 3237 required the superintendent of streets to make weekly reports to the aldermen of the respective wards as to the men and teams employed in the several wards. Section 3238 is as follows: “First Assistant Superintendent of Streets — Duties) The first assistant superintendent of streets shall perform such duties as may be required of him by the commissioner of public works, the superintendent of streets and the ordinances of the city. He shall act as superintendent of streets in the absence of such superintendent.” By the provisions of section 3239, the second superintendent of streets was given charge, under the supervision and direction of the commissioner of public works of the cleaning of the streets and alleys of the city, including the removal and disposition of garbage. He was also required to see that the ordinances of the city pertaining to the throwing or casting of garbage in or upon the streets or alleys were enforced and to report any violation in this respect to the prosecuting attorney. He was further required to perform such other duties as might be required of him by the commissioner of public works, the superintendent of streets and the ordinances of the city. Section 3240 specified the duties of the third assistant superintendent of streets. He was given charge under the supervision of the commissioner of public works of the maintenance, improvements and repairs of the streets and alleys, except where such repairs and improvements were to be paid.by special assessment. He was also required to perform such other duties as may be required of him by the commissioner of public works, superintendent of streets and the ordinances of the city.

This ordinance was revised by the ordinance of July 15, 1924. Section 3234 of the old ordinance was changed so as to eliminate the positions of first, second and third assistant superintendent of streets and, in lieu thereof, the position of deputy superintendent of streets and three assistant superintendents of streets were provided for. Section 3235 was not changed. Section 3236 of the new ordinance provides that the deputy superintendent of streets should have charge, under the supervision and direction of the commissioner of public works and the superintendent of streets of the maintenance, repairs and cleaning of the streets, sidewalks and public ways of the city, including the removal of garbage and further provides that the deputy superintendent of streets should act as the superintendent of streets in the absence of the latter. Section 3237 was unchanged. Sections 3238, 3239, 3240 were in substance eliminated, but a new section numbered 3238 was inserted in lieu of those sections. This new section provided that each of the three assistant superintendents of streets should have charge under the supervision of the commissioner of public works and the superintendent of streets of a section of the city to which each should be assigned. The ordinance provides that each assistant in his respective section shall have charge of the cleaning of the streets and alleys including the removal of garbage; that each shall see that the ordinances of the city relating to throwing garbage or litter upon the streets are enforced and violations thereof reported to the prosecuting attorney; that each shall have charge in their respective sections of the maintenance, improvements and repairs of the streets and alleys, except where such repairs and improvements are paid for by special assessment and they are each required to perform such other duties as may be required of them by the commissioner of public works, superintendent of streets and the deputy superintendent of streets.

The record discloses that under the old ordinance there was a first, second and third assistant superintendent of streets, all classified as being in the same grade and rank by the civil service commissioners, while under the new ordinance there are three assistant superintendents who are also placed in the same rank and grade. It further appears that the office or position of deputy superintendent of streets mentioned in the new ordinance was classified as the next higher in rank than the three assistant superintend-outs of streets and it was proposed to hold a promotional examination to fill the office or position of deputy superintendent of streets; that the three assistant superintendents of streets were the only ones eligible to take such promotional examination, and that the second and third assistant superintendents of streets have taken such examination. It is contended by the respondents that these two assistant superintendents were necessary and indispensable parties. If the contention of the relator to the effect that the new ordinance of 1924 in attempting to create the office or position of deputy superintendent of streets merely changed the name of the office or position which he was occupying, it is obvious that the second and third assistant superintendents would not be necessary parties, because they do not claim to be entitled to the place or position of deputy superintendent of streets. The fact that they might be incidentally interested is not sufficient. People v. Faherty, 306 Ill. 119. The relator’s position as clearly and succinctly stated by his counsel is: “Is the office, place or position of ‘Deputy Superintendent of Streets,’ named in the ordinance of 1924, essentially the same as that of ‘First Assistant Superintendent of Streets’ named in the prior ordinance,” and continuing counsel say: “Unless that question is answered in the affirmative, it is conceded that the relator, Philip Q. Rohm, is not entitled to the relief sought. But on the other hand, if such question is answered in the affirmative, then it must be admitted that the defendants have no real defense to the suit.” Upon this question, therefore, the whole case hinges. Neither the city nor the Civil Service Commission, nor both combined, can abolish a position temporarily and later re-establish it for the purpose of installing a different person in the position where the employee is under civil service. City of Chicago v. Luthardt, 191 Ill. 516; People v. Coffin, 282 Ill. 599. And in the instant case if it appears that the city by the passage of the ordinance of 1924 attempted to abolish the position of first assistant superintendent of streets so as to oust the relator, by merely changing the name of the position to that of deputy superintendent of streets, its action in this respect would be illegal. And, even though the city, acting through the city council, in the passage of the 1924 ordinance, acted in perfect good faith, yet the relator could not be ousted from his position of first assistant superintendent of streets. The law as stated is not disputed and counsel for the relator contend that the duties of the first assistant superintendent of streets under the old ordinance and the duties of the deputy superintendent of streets under the new ordinance are in all material respects the same. With this contention we are unable to agree. Under the old ordinance, the relator was required to perform such duties, as first assistant superintendent of streets, as "may be required of him by the commissioner of public works, the superintendent of streets and the ordinances of the city.” While under the new ordinance the duties of the deputy superintendent of streets provide that he shall have charge of the maintenance and repair of the streets, sidewalks and other public ways of the city, including the cleaning of the streets and the removal of garbage; that this work shall be done by him under the supervision and direction of the commissioner of public works and the superintendent of streets. Under the new ordinance the duties of the deputy superintendent of streets, as above stated, are the same duties that the superintendent of streets was required to perform under the old ordinance. These ivere not the duties of the first assistant superintendent of streets under the old ordinance. Under that ordinance, his duties were not specified, but were only such as were required of him by the commissioner of public works and the superintendent of streets. It is true that under the old ordinance, the first assistant superintendent of streets might perform all of the duties required of the deputy superintendent of streets under the new ordinance if he was especially requested to do so by the commissioner of public works or the superintendent of streets, but under the new ordinance the deputy is required to perform those duties without any request from any superior officer. We think the duties are not the same, nor do we think this conclusion is affected by the fact that while under the old ordinance it was provided that the first assistant superintendent of streets should act as the superintendent of streets in latter’s absence, under the new ordinance that duty devolves upon the deputy superintendent of streets.

Counsel for the relator in contending that the judgment of the trial court should be affirmed states: “While it is true that the city council may in good faith abolish an office that is no longer necessary, they cannot abolish an office in the classified civil service and immediately thereupon create a new office with essentially the same duties, under a new name,” and the inference is that the relator’s office or position as first assistant superintendent of streets has been abolished by the city council in the passage of the ordinance of 1924. We'think this is not borne out by the record. There is no attempt to separate the relator from his position, but the council by the new ordinance has imposed other duties upon him. Under the new ordinance there are three assistant superintendents of streets, each of whom is to have charge of a certain section of the city, and, in such section, is to have charge of the cleaning, maintenance and repairs of the streets and alleys. The council evidently thought that when each of the three assistant superintendents was given a specified section of the city, it was necessary to have an additional employee to assist the superintendent and they created the place of deputy superintendent of streets. It is conceded on the record before us that the city council and all of the respondents acted in good faith, and it is clear that no attempt was made to abolish the place or position held by the relator.

We are, therefore, of the opinion that the judgment of the trial court was wrong and it is reversed and the cause remanded with direction to dismiss the petition.

Reversed and remanded with directions.

Thomson and Taylor, JJ., concur.