text:
    Bernard J. Grossman, Appellee, v. Bernard Lifshitz et al. Appeal of Abe Byer and Jennie Byer, Appellants.
    Gen. No. 34,647.

      Opinion filed May 13, 1931.
    Fischel, Kahn, Heart & Epstein, for appellants.
    Charles Rudolph and Bernstein, Zolla & Bernstein, for appellee; Fred Bernstein and Harold M. Goldstein, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

This appeal presents for review an order of the superior court of Cook county, denying the motion and petition of Abe Byer and Jennie Byer, defendants herein, to vacate a judgment by confession theretofore entered against them on November 2, 1928, in the sum of $26,236.62.

Their petition, filed January 15, 1930, and subsequently amended, sets forth in substance that judgment was entered on the second day of November, 1928, as heretofore stated, upon 10 principal promissory notes aggregating $22,000, which together with interest and attorney’s fees, comprises the amount of the judgment; that the petitioners, Abe Byer and Jennie Byer, acquired an undivided interest in the premises described in the petition by warranty deed dated May 20, 1924; that thereafter petitioners, together with Bernard Lifshitz, Rose Lifshitz, his wife, Abraham Bogaslowsky and Rebecca Bogaslowsky, his wife, as comakers, who were cotenants and jointly interested in the premises described in the petition, made and executed their 37 principal promissory notes, payable in the total sum of $35,000, all bearing date July 25, 1924, payable to their own order, and by them indorsed, in- the various denominations set forth in the petition; that in order to secure -the payment of the indebtedness evidenced by their notes, petitioners and their comakers conveyed the premises described in the petition by their trust deed to LeRoy F. Harris, as security for said indebtedness; that subsequently on July 3, 1925, petitioners by their warranty deed of that date conveyed their undivided interest in the premises to one Valeska de Molchin, as grantee; that said Molchin by her deed dated November 4, 1926, conveyed all of her right, title and interest in and to the premises in question to Emma Seibt, as grantee; that Emma Seibt and said Molchin upon the respective conveyances to them took possession of the premises, collected all of the rents, revenues and profits therefrom, and were in entire charge and control thereof; that said Emma Seibt died, testate, on May 12, 1927, leaving her surviving Hermann Seibt, her husband, and Irma Margaret Seibt Anderson, wife of James Anderson, her daughter, as her only heirs at law; that in and by the last will and testament of said Emma Seibt, which was subsequently admitted to probate in the probate court of Cook county, Illinois, all of her estate was devised and bequeathed unto her husband, Herman Seibt, who was appointed and qualified as executor under her last will and testament, and to whom letters testamentary were duly issued out of the probate court of Cook county; that on April 7, 1928, Herman Seibt, by his executor’s deed of that date, conveyed the premises described in the petition to Joseph Urban and Anna Urban, his wife, as joint tenants, and that in the purchase and acquisition of said premises the grantees accepted and received credit for the lien then existing by virtue of the recorded trust deed of the petitioners, and their comakers, of which the said Urban and his wife had knowledge and were informed, and that in order to remove any doubt as to the effectual conveyance and investiture of title in said Urban and his wife, Herman Seibt, a widower, Irma Anderson and James Anderson, her husband, as the only heirs at law of Emma Seibt, deceased, by their quitclaim deed dated April 7, 1928, conveyed and quit-claimed whatever interest they may have had in the premises to said Joseph Urban and Anna Urban, his wife; that the title to the premises in question was conveyed to and acquired by said Urban and his wife under the terms and conditions of a certain escrow agreement dated April 9, 1928, by the terms of which notes' numbered 27 to 37, inclusive, executed by petitioners, and being the notes upon which the judgment herein was entered, and the trust deed' given to secure the payment of same, became the property and were delivered to and were owned and held by the said Joseph Urban and Anna Urban, his wife; that said notes and trust deed were acquired by the Urbans after the notes had matured and were delivered to and held and owned by the Urbans as grantees of the premises, and the debt and lien of said notes thereby became discharged by and were merged in the title to the premises conveyed to said Urban by the respective deeds of Herman Seibt, Irma Anderson and James Anderson, her husband.

The petition further alleges that thereafter, in order to secure the payment of his certain collateral promissory note, dated April 11,1928, in the sum of $2,750.00, due three months after date and payable to the order of Progressive Bond and Mortgage Company, said Joseph Urban deposited and delivered as collateral security to.the payee therein named the past due notes of the petitioners numbered 27 to 37, inclusive, and the trust deed given to secure the payment of the same, which had become discharged by operation of law and were no longer the obligation of petitioners; that upon the maturity of the collateral promissory note payable to the Progressive Bond and Mortgage Company, said Urban caused the same to be paid and marked canceled, and thereupon the series of past due promissory notes made by the petitioners were returned uncanceled and unreleased to said Urban, who repossessed himself of the same and held them; that subsequently upon a daté in excess of three months after the 11th day of April, 1928, and unknown to petitioners, said Joseph Urban executed another collateral principal promissory note for the sum of $6,893, payable at a time in the future unknown to petitioners, and again delivered petitioners’ past due notes numbered 27 to 37, inclusive, and the trust deed securing the same, as additional security for said collateral note.

It is further alleged that petitioners were entirely ignorant and without knowledge or information of the deposit of their notes as collateral to the principal promissory note of said Urban and of the several extensions of time of payment of their notes after their respective dates of maturity, and were at no time advised of the failure of the holders of title to the premises conveyed by them to cancel, void and mark paid their said notes upon the respective dates of their maturity; that at the dates when the several notes described in the petition became due, the premises conveyed by trust deed to secure the payment of the same were more than ample and sufficient security for the payment of said notes and the rents and revenues arising therefrom would have been sufficient and ample to discharge and pay petitioners’ obligation, which in fact had already been paid and discharged; that after the various extensions of payment subsequent to the maturities of petitioners’ notes, the premises conveyed by trust deed as security became greatly depreciated and reduced in value, and between the date of the maturity of note number 37 and the time when petitioners first became aware of the entry of said judgment, the premises secured had depreciated and deteriorated in value to a sum in excess of the indebtedness due to plaintiff from Joseph Urban.

The petition further alleges that the facts and circumstances set forth therein first came to petitioners’ knowledge, attention and information upon about the 15th day of October, 1929, and the knowledge of the entry of the judgment against petitioners first became known to them about the 10th day of July, 1929; that as soon as they were apprised of the entry of the judgment petitioners communicated and began negotiations with attorneys representing the plaintiff in an effort to amicably vacate and set aside the judgment entered against them, but without avail, and thereupon on November 16, 1929, petitioners filed a bill in chancery in the circuit court of Cook county, being G-efi. No. B-192040, Wherein they prayed, among other things, for a temporary injunction to restrain plaintiff herein from in any manner attempting to enforce the collection of the judgment that had theretofore been entered against petitioners, but that upon demurrer filed t.o the bill of complaint, the circuit court was' of the opinion that complainants’ remedy had been misconceived, and they accordingly proceeded in the exercise of diligence in seeking relief from the judgment entered against them by way of petition to have the judgment vacáted; that the notes upon which judgment was entered against petitioners had ceased to be their obligation prior to the entry of the judgment herein; that plaintiff Bernard Grossman acquired petitioners’ notes after their respective dates of maturity, and was charged with the infirmities of said notes and with knowledge of the release and discharge of the legal obligation and liability of petitioners thereon; that plaintiff’s judgment is wholly inequitable, unjust and constitutes fraud against petitioners, and that the same should have been vacated, pursuant to the filing and hearing of the petition.

The principal question presented for decision is whether defendants’ petition sufficiently sets forth a defense to plaintiff’s claim. With regard to this question, it is first urged that the vesting of the legal estate in Urban by the quitclaim deeds of Herman Seibt, individually and as executor, Irma Anderson and James Anderson, and his ownership of the mortgage upon the same title, effected a merger in him and extinguished, in law, the indebtedness evidenced by the notes described in the mortgage and upon which judgment was taken. It is contended that a merger in law results from these circumstances, regardless of the intention of the parties, and numerous cases are cited to support the doctrine.

In Lilly v. Palmer, 51 Ill. 331, an action in assumpsit was brought upon two promissory notes secured by a mortgage. The plaintiff acquired these notes at the time that he was the owner of the property secured by mortgage on his land. The court held that the conveyance to plaintiff made the land the primary fund for the payment of the notes, and when plaintiff took the deed he became the owner of that fund and then stood in the attitude of a mortgagee who had effected a strict foreclosure.

In Hester v. Frary, 99 Ill. App. 51, suit was brought to recover principal and interest due upon a promissory note, which the defendant assumed to pay as grantee of certain property which had been mortgaged to secure the payment of the indebtedness evidenced by the note in question. There also plaintiff had acquired the note at the same time that he held the fee to the property. Under a proposition of law submitted to the court, it was held that a person who owns land with an outstanding• mortgage lien thereon, created by a predecessor in title, may buy such mortgage lien and keep it alive, and that it does not merge in the fee title unless there is an intention that it should so merge. The Appellate Court held that the proposition should have stated the rule conversely, i. e., that there is under the facts stated a merger unless there is an intention shown to the contrary, and said:

“For this purpose, we are of opinion that the intent to prevent a merger could not be presumed even in a suit in equity, and certainly not in an action at law, from a mere lack of any intention expressed that there should be a merger. . . . The doctrine of prevention of merger is a rule of equity jurisprudence, and this action is at law. Appellant is no party to the note sued on by reason of having executed or indorsed it. The only ground upon which this action in assumpsit could lie against him, is that he has assumed the indebtedness evidenced by the note. But the debt is extinct if there was a merger, and the recovery could not in that event be had.”

In Maulding v. Sims, 213 Ill. App. 473, an action in assumpsit was brought by plaintiff upon two promissory notes. The defense interposed was that the notes were secured by mortgaged premises, acquired in a foreclosure proceeding by plaintiff, who became the owner of the property through acquisition by foreclosure. In its opinion the court stated the question involved to be whether “the estate created by the mortgages covering the two notes here sued on merged with the estate received by appellant from the- master in chancery,’’ and whether “the indebtedness here sued on became merged or wiped ont at that time.” In answer to this inquiry the court, quoting from Donk Bros. & Co. v. St. Louis Glucose and Grape Sugar Co., 17 Ill. App. 369, said:

“ ‘Purchasing the property in this manner, it became in the hands of appellant company the primary fund between all the parties out of which these liens should be discharged (Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375), as fully as though the grantee had assumed their payment in the deed, this latter assumption by a grantee not having any greater effect to ■ subject the property to such payment than the former, but giving to the lien holder a personal action against the grantee. ... In either case, the company, in order to become invested with the entire estate in the property, must see to it that the incumbrances are discharged, and as between it and its vendor, the primary duty was cast upon it to do so (Shuler v. Hardin, 25 Ind. 386); and it is said in Cherry v. Monro, 2 Barb. (N. Y.) Ch. 618, where the equity of redemption was purchased subject to an outstanding mortgage, that the purchaser had no legal right to have the mortgage debt charged upon the mortgagor personally instead of charging it upon the land upon which it was charged by the mortgage. ’ ” The court then continuing, said: “After the sale to him, appellant took an assignment of the notes and these mortgages, and in law it amounted to a payment therefor, it being a matter of indifference whether the indebtedness be paid directly, or whether an assignment is taken to the person who holds the fee.”

The courts recognize a distinction in the doctrine contended for between suits at law and in chancery proceedings. This is well stated in the case of Rear don v. Taft, 235 Ill. App. 75, wherein the court in its opinion said:

“It is well settled that, at law, when a greater or lesser, or a legal and equitable estate, coincide in the same person, the lesser, or the equitable estate, is immediately merged and annihilated. . . . It is true that the question, whether or not a merger takes place in equity, depends upon the intention of the parties and a variety of other circumstances. . . . But, ' a merger will be prevented by equity only, however, for the purpose of promoting substantial justice; it will not prevent a merger, where such prevention would result in carrying a fraud or other unconscientious wrong into ■effect.’ ”

A like distinction is made by the court in Belleville Savings Bank v. Reis, 136 Ill. 242, wherein the court says :

“When one, who is absolutely entitled in his own right to a charge or incumbrance upon land, becomes the owner in fee of the same land, with no intervening interest or lien, the charge will at law merge in the ownership and cease to exist. Under like circumstances a merger will take place in equity where no intention to prevent it has been expressed, and none is implied from the circumstances and the interests of the party. . . . The premises in such case become the primary fund for the payment of the mortgage, • and whoever acquires that fund and the mortgage also, must be regarded as having applied the fund to the payment of the mortgage. . . . The indebtedness will be presumed to have been discharged so soon as the holder of it becomes invested with the title to the land upon which it is charged, ' on the principle that a party may not sue himself at law or in equity.’ 'The purchaser is presumed to have bought the land at its value less the amount of indebtedness secured thereon, and equity will not permit him to hold the land and still collect the debt from the mortgagor. ’ ”

It is urged by plaintiff, however, that defendants by their petition have failed to allege facts which would justify the application of the merger principle to the instant case; that according to defendants’ petition plaintiff acquired title to the premises and notes by virtue of an escrow agreement, referred to in the petition, but not set out in its entirety, and that in the absence of the entire escrow agreement the court cannot determine whether or not such a merger actually took place. We cannot agree with this contention. The petition alleges the vesting of the legal title in Urban by the quitclaim deeds, described therein, and Ms ownership of the mortgage upon that same title, and states that in the purchase and acquisition of said prerMses, Urban accepted and received credit for the lien then. existing by virtue of the recorded trust deed of defendant. These allegations are sufficient upon which to base the legal contention that a merger in law resulted. If the court, acting upon the petition, had vacated the judgment and allowed the plaintiff to plead thereto, it would have been proper for plaintiff, if he considered other provisions of the escrow agreement that those alleged by defendants to be of controlling importance, to have set forth the agreement fully. At this stage of the proceeding it was not incumbent upon defendants to set forth the entire escrow agreement, because, as stated, we believe that sufficient portions thereof and sufficient other allegations are contained in the petition, which, when taken to be true, form a basis in fact upon which the legal contention as to merger may be founded.

Plaintiff insists, however, that notwithstanding the insufficiency of the petition, the rule is well settled that intention is the controlling consideration where it has been made known or can be inferred from the acts and conduct of the parties, and cites Hooper v. Goldstein, 336 Ill. 125, which is a suit at law, to sustain his point. In that case plaintiff brought an action of ejectment, resulting in a finding and judgment in favor of defendants. It appears that the purchaser at a foreclosure sale, to whom the original certificate of sale had been issued, assigned the same as security for a loan, and that a conveyance of the equity of redemption to the original certificate holder was subsequently made. The court held that the intermediate equitable estate thus created by the assignment of the original certificate of sale precluded a resulting merger. And, while the court uses language, as pointed out by plaintiff, to the effect that a merger is not a necessary result of the union of the two" estates, but that the intention and interest of the party who unites the two will determine whether or not a merger takes place, the court’s conclusion is based upon the fact, as stated in the opinion, that" “the evidence in this case does not establish a merger. ’ ’

From a consideration of all the cases cited by counsels’ briefs, we are of the opinion that the rule contended for by defendants is amply supported by the weight of authority, in this State, and when applied to the uncontroverted allegations of the petition as amended, entitled defendants to have the judgment vacated for the purpose of making their defense to plaintiff’s suit.

It is further urged by plaintiff that the defendants did not make their application to vacate the judgment by confession against them at the earliest opportunity, and that they are therefore barred from relief by delay, which, constitutes laches. It appears from the petition that the first intimation defendants had of the entry of the judgment was on July 10, 1929, and that on October 15, 1929, they first learned of the facts set forth in their petition; that in the interim negotiations were had between the parties for disposing of the subject matter of the litigation and vacating the judgment ; that when these became unavailing, defendants filed a bill in chancery, which was determined adversely to them, and they thereupon filed their petition herein. While it is true that considerable time elapsed between the entry of the judgment and the application to vacate the same, we believe the delay is sufficiently accounted for by allegations in the petition showing the necessity for investigating and ascertaining many complicated transactions, then unknown to defendants, and which required considerable time. It does not appear' that the defendants lacked diligence in presenting their motion to such an extent as to he barred by the doctrine of laches from interposing their defense, especially in view of the fact that no other rights intervened.

The sufficiency of the amended petition is further challenged on the ground that it does not state facts with reference to the depreciation of the premises between the time that Urban acquired the property and the date of the judgment and that certain allegations with reference to the extensions of time for payment of the notes are too vague and uncertain. However, in view of our conclusion upon the principal legal question involved, we consider a discussion of these points unnecessary at this time.

For the reasons stated the judgment of the trial court will be reversed and the cause remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.

Wilson, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Gordon Motor Finance Company, Appellant, v. Aetna Acceptance Company et al., Appellees.
    Gen. No. 34,659.

      Opinion filed May 13, 1931.
    Short, Rothbart, Willner & Lewis, for appellant; Seymour Lewis and Wharton Plummer, of counsel.
    William S. Kleinman, for appellees.
   Mr. Justice Friend

delivered the opinion of the court. .

An action in replevin was instituted by Gordon Motor Finance Co., as plaintiff, against Aetna Acceptance Co., as defendant, „to recover possession of a certain used Packard automobile of the value of $1,000. The cause was tried before the court, without a jury, and resulted in a finding and judgment of title to the property in defendant.

The essential facts disclose that both parties to this proceeding are finance companies, engaged in purchasing negotiable instruments secured by conditional sales contracts on automobiles; that the Packard automobile in question had been taken in trade by the AuburnWoodlawn Motors, Inc., of which one H. J. Monroe was president, on account of the purchase by one of his customers of a Cord automobile; that this Packard automobile was then sold by the Auburn-Woodlawn Motors, Inc. on a time payment plan and the notes purchased by the Gordon Motor Finance Company; that the purchaser failed to make his payments as required, and the Gordon Motor Finance Company thereupon repossessed the car and sold the same to said H. J. Monroe, either individually' or as president of the Auburn-Woodlawn Motors, Inc. for $1,000, upon a conditional sales contract, under which payments aggregating $300 were made either by Monroe or his company, leaving a balance of $700 due plaintiff at the time of the seizure; that thereafter Monroe turned the Packard car in to his company, which resold the same to one Harold Mandelbaum, also under a conditional sales contract, which was purchased by Aetna Acceptance Company, which became the owner thereof for value, in due course of business. Both plaintiff and defendant now claim priority of title to the Packard car under their respective conditional sales contracts.

Under the doctrine announced in Sherer-Gillett Co. v. Long, 318 Ill. 432, construing section 23 of the Uniform Sales Act (Cahill’s St. ch. 121a, ¶ 26), the Gordon Motor Finance Co., as conditional vendor, retained title to the car as against the purchaser from the. conditional vendee, unless it was by its “conduct precluded from denying the seller’s authority to sell,” as provided by section 23. The determination, of the question of estoppel under the statute depends upon the facts and circumstances attending the sale. With respect to this question, the record discloses that Auburn-Woodlawn Motors, Inc. was engaged in the sale of automobiles in the City of Chicago, and for a period of about four years prior to the transaction in question H. J. Monroe was connected with that company; that Monroe had bought three or four used cars from Aetna Acceptance Co., and about four or five from Gordon during the year 1929; that during the four years he was in business Monroe signed hundred of conditional sales contracts, and he testified that in all these transactions he had no recollection of ever having signed his individual name, but always signed that of the company ; that on the occasion of the sale in question Mr. Gordon called him to his office to consider the sale of some automobiles, and after considerable bargaining, Monroe purchased two cars, including the Packard. The original conditional sales contract signed by Monroe was lost or mislaid and a controversy exists as to the manner in which the original was signed. Monroe asserts that he signed the name of his company, and plaintiff insists that Monroe signed the contract individually. To support its contention that this was a sale to Monroe and not to the Auburn-Woodlawn Motors, Inc., with which Monroe was connected, plaintiff offered to prove a conversation between Gordon and Monroe, in which the latter is alleged to have said that he wanted the car to transport Mr. and Mrs. Allison, officials of his company, to and from their home, and that the Packard automobile was well suited for that purpose. The court sustained an objection to the offer and we think properly so, because defendant, not having been a party to the conversation, cannot be bound thereby. Moreover, Gordon had full knowledge of Monroe’s business, based upon past transactions with him, and of his connection with the AuburnWoodlawn Motors, Inc., and if he desired to limit the sale of this particular car to Monroe’s personal use, he should have so stipulated in the contract. By selling the car to Monroe, who was engaged in the business of reselling cars in connection with his company, Gordon gave the latter an opportunity to perpetrate a fraud upon an innocent purchaser. Section 23 of the Uniform Sales Act, Cahill’s St. ch. 121a, H 26, was evidently enacted to afford protection to vendors under conditional sales contracts who could not reasonably foresee or anticipate a resale of chattels before the same were fully paid, and who through no act of theirs could be said to have made the perpetration of fraud on innocent purchasers from a conditional vendee possible. However, we do not believe the protection of the statute should be extended to those who by their own acts place the indicia of ownership in a person or corporation under circumstances where it can be reasonably foreseen that fraud on innocent-persons will result therefrom. The parties knew each other, they had had previous transactions together, and plaintiff knew that Monroe and his company were engaged in the business of selling cars; therefore it was reasonable to anticipate a resale by Monroe, who had on prior occasions through his company made purchases from Gordon for the purpose of resale. Considering the evidence in the light most favorable to Gordon, it may fairly be said that he placed the instrumentality for fraud in the hands of Monroe with whose business and transactions he was fully familiar, and the fact that Monroe broke faith with Gordon, as asserted by him, in turning the Packard over to his company and allowing it to be sold to a third person, should not be permitted to affect the rights of one who had paid a valuable consideration therefor without any knowledge of the existence of the conditional sales contract between Gordon and Monroe. It is needless to cite cases upon this question. The language of the statute clearly provides that an estoppel to deny the seller’s right to sell may operate against the conditional vendor where he has by his conduct placed himself in position to forfeit the protection of the statute. The Sherer-Gillett Co. case is not at variance with the views herein expressed and merely holds that the conditional vendor will be protected when there has been a resale, unless he has es-topped himself by his own conduct.

While the statute is intended to protect vendors who sell chattels on instalment payments under so-called conditional sales contracts, it also safeguards purchasers who may become the victims of fraud through acts of those who have made the fraud possible. Persons buying used cars from dealers ought to have the assurance that their vendors have title to the chattels sold and for which valuable considerations are paid. To hold otherwise would make it unsafe for anyone to purchase a used car from a dealer, as he could not be certain of his title after the purchase price had been paid.

For the reasons stated, the judgment of the trial court will be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


text:
    Simon L. Levy, Appellant, v. Louis Greenberg et al., Trading as Progress Suit Case Company, Appellees.
    Gen. No. 34,671.

      Opinion filed May 13, 1931.
    Jacob Levy, for appellant; James M. Gwin, of counsel.
    Frank & Shomberg, for appellees; Marcus Levy, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

On February 20,1930, Simon L. Levy, plaintiff, procured a judgment by confession on a lease, in the municipal court of Chicago, against defendants in the sum of $1,105. Thereafter on April 14, 1930, on petition of defendants, the judgment was vacated and set aside, and defendants’ petition allowed to stand as their affidavit of merits in said cause. The case was tried before the court, without a jury, resulting in the reduction of the original judgment from $1,105 to $155. This appeal is prosecuted to reverse the latter judgment.

The cause was submitted to the court upon stipulated facts, showing that plaintiff and defendants executed a written lease on the 2nd day of November, 1925, effective for a term commencing December 1, 1925, and ending November 1,1930; that defendants took possession of the premises and paid to plaintiff the sum of $135 per month up to and including November, 1926; that subsequently an oral agreement was made between the parties to reduce the rent to $110 a month, which sum was paid by defendants and accepted by plaintiff, but no receipt or release given for said payments ; that in February, 1930, a suit for possession of the premises was instituted by plaintiff against defendants, resulting in a judgment on February 26, 1930, for possession in favor of plaintiff, for failure to pay the February rent; that on February 20, 1930, the judgment sued on was obtained by confession upon the lease in question in the sum of $1,105, covering the months commencing December, 1926, down to and including January, 1930; that the amount of the judgment represents the difference in rent of $25 per month for each month during that period, and $135 for the month of February, 1930.

The trial court based its finding and judgment on the theory that the reduction of rental by oral agreement of the parties constituted a valid gift of $25 per month as each monthly payment was made. Plaintiff, however, contends (1) that an oral agreement to reduce the monthly rental under a written lease is in violation of the rule of law prohibiting a sealed instrument to be varied by an oral agreement; (2) that the payment of a liquidated sum by paying a lesser sum does not discharge the indebtedness; and (3) that a parol agreement to reduce rent without consideration is a mere nudum factum.

It is conceded that the foregoing propositions were the settled law in this State as applied to facts similar to those involved in the instant case, until the Supreme Court in Snow v. Griesheimer, 220 Ill. 106, modified the earlier decisions and held that ‘ ‘ so long as the contract remained executory,, the landlord had a right to repudiate the parol agreement and claim the full amount of rent contracted for,” but that if the parties have executed the contract as modified, it ceases to be executory, will be treated as an executed contract and will not be disturbed by the court.

In the Griesheimer case, as here, a judgment by confession was entered under a power of attorney contained in the lease, which had by its terms expired prior to the date upon which the judgment was entered. The facts disclose that there was an agreement to reduce the monthly rental of $500 to $416.66 for the remainder' of the term, and that the latter sum was received and accepted by the plaintiff, although she did not assent to the claim that payments were in full of rent for the entire period and only credited them on account over a portion of the term. It was there contended that the court erred in admitting evidence of the oral agreement to reduce the rent for the reason that an executory contract under seal.cannot be modified or changed by an agreement not under seal. The court approved the proposition contended for as the settled law of this State and cited Goldsborough v. Gable, 140 Ill. 269, which is one of the cases relied upon herein by plaintiff, but modified the doctrine by saying that:

“So long as the contract contained in the lease under seal remained executory, the plaintiff had a right to repudiate the parol agreement and claim the full amount of rent contracted for. The rule of law, however, is one that defeats the intention of the parties, and while it should be enforced in every case to which it applies, it is not to be extended to other cases to which it does not properly apply. If the parties have executed the contract as modified, so that nothing remains to be done by either party, it is no longer executory and the contract as executed will not be disturbed. ’ ’

This court had occasion to consider the same question in the case of Doyle v. Dunne, 144 Ill. App. 14. In that case it was held that a parol agreement to reduce rent, entered into by a lessor without consideration, is a mere nudum pactum, not binding, and while 'the lease remains executory, is not susceptible of being enforced, but that a reduction accomplished periodically as the rent accrues by accepting a sum less than the stipulated rent for such period is valid and constitutes an executed gift.

The theory of the foregoing eases is that the difference in the amount contracted for and the amount actually paid by the tenant, as rental, is considered waived and released, and cannot thereafter be claimed and recovered by the lessor.

It is urged by plaintiff, however, that the agreement for a reduction of rent was a unit, and because defendants did not continue to pay the reduced rental, or any other rental, up to the expiration of the term, he is now entitled to recover the difference between the amount stipulated in the lease and the reduced sum agreed to by the parties. This same contention was made by the lessor in Kafka v. Peterson, 257 Ill. App. 625 (Abst.). In that case the tenant paid the reduced rental for the months of November and December, 1927, and January and February, 1928, but failed to pay any rent for March and April, 1928, by reason of' which he was evicted in forcible detainer. In commenting on this contention the court said:

“Defendant argues that this reduction was without consideration; that the whole agreement was not executed ; that the agreement was a unity and that since it was executed only in part by plaintiffs, defendant is entitled to a return of the four hundred ($400) dollars heretofore allowed. . . . She concedes that an agreement to make a gift, such as this, when fully executed, is binding and that the law will not undo it, but urges that in cases where the agreement is not executed or executed only in part, the law will treat it as void in toto; that the agreement here was for six months, but that since plaintiff failed to pay any rent for March or April, they are not entitled to retain the amount already received by way of rebate; in other words, that the promised gift was a unity, and not having been completed, was not binding on the defendant. . . . The evidence here discloses, we think, not a gift as a unity but a gift of separate and distinct items each month, and when the same were paid and accepted we think the gift was in each case complete and irrevocable. ’ ’

As indicated by the court in Doyle v. Dunne, supra, the test is not whether there was a consideration for the reduction of the rent,' but whether the gift was executed or unexecuted. Applying this test to the facts stipulated herein, it clearly appears that the agreement for the reduced rental was executed by the parties during a large portion of the term and required no consideration. Under the authorities, hereinbefore cited, we are disposed to regard the reductions in rental as gifts of separate and distinct items each month, and when the same were paid and accepted, we believe the gift in each case was complete and irrevocable, as held by the court in Kafka v. Peterson, supra.

Plaintiff seeks to distinguish the cases of Snow v. Griesheimer and Doyle v. Dunne, supra, upon the ground that in both of those cases the leases had by their terms expired before judgment was confessed thereon. This distinction is not important, however, under the theory of a gift as applied to the stipulated facts in this case. It was manifestly the clear intention of the parties that the rental should be reduced from $135 a month to $110 a month, and the stipulated facts indicate that this oral agreement was made without limitation, and the lesser sums accepted by plaintiff without any receipt or release indicating a limitation thereon.

For the reasons stated we are of the opinion that the trial court properly reduced the judgment originally entered from $1,105 to $155, and the finding and judgment will accordingly be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    In re Estate of Carl Bacher, Deceased, Matt Suntherker, Appellant, v. Carl Richter, Appellee.
    Gen. No. 34,568.
    Opinion filed May 13, 1931.

      James Peroival Pio, for appellant.
    No appearance for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by Matt Suntherker, one of the petitioners, from a. judgment of the circuit court of Cook county dismissing an appeal by the appellant from an order of the probate court.

The order appealed from after a trial de novo in the circuit court is, in part, as follows:

“It is therefore ordered that the petition of Matt Suntherker for the removal of Carl J. Richter, as administrator of the estate of Carl Baeher, deceased, and the petition for the appointment of the said Matt Suntherker as administrator of the estate of Carl Baeher, deceased, in place and stead of Carl J. Richter, be and the same are hereby denied. ’ ’

It appears that the matter was heard in the probate court and in the circuit court on appeal upon the joint petition of Matt Suntherker and Max Rahnfeld, wherein it appears that Carl Richter had- been appointed administrator of the estate of Carl Baeher, deceased, on the petition of Charles J. Baeher, a minor heir of the deceased, and it also appears that the petitioners were creditors of the estate, and that the total sum due to the petitioners was $1,281.50.

In answer to this petition Carl J. Richter, administrator of the estate, admits the minority of Charles J. Baeher, and a claim was made that the deceased was indebted to the Prudential State Savings Bank in the sum of $2,800, and that Carl J. Richter was vice-president of the bank, although it does not appear from the record that the bank joined in the petition. It is denied in the answer that Matt Suntherker is a creditor.

It is contended by the appellant that the appointment of Carl J. Richter as administrator of this estate should have been vacated, for the reason that he was appointed upon the petition of a minor.

The contention of the respondent in the trial court was that the appellant could not complain owing to his having failed to file his claim in the probate court, and that therefore he was not, in the language of the statute, “a person who may consider himself aggrieved” within the meaning of the statute allowing appeals from the probate court. It is conceded that the appellant, Matt Suntherker, did not file his claim in the probate court, but upon the hearing of the petition in this court he offered evidence to prove his claim, and it is so recited in the order of the probate court; and evidence was offered to the same effect upon the trial in the circuit court.

The first question to be considered by this court is, whether the appellant, Matt Suntherker, who failed to file his claim as a creditor in the probate court for adjudication, is a “person aggrieved” within the meaning of the statute allowing appeals from the probate court.

There is an opinion in the Appellate Court in the case of Wallace v. Chicago & Erie Stove Co., 46 Ill. App. 571, which passes upon the question as to the right of an appeal in cases arising out of probate court matters in which orders are entered. The court in its opinion says:

“While, therefore, the literal reading of the statute is that any person who may consider himself aggrieved shall be allowed an appeal, it is manifest that if, in reality, he is not aggrieved, an appeal by him would be dismissed. We are therefore of the opinion that before one can, as a creditor, be allowed an appeal from an order of the probate court, he must have filed a claim as a creditor, and that the appeal prayed by the Chicago & Erie Stove Company, limited, should, upon what is shown in this record, have been denied.”

The appellant, Matt Suntherker, does not question the rule of the Appellate Court quoted in this opinion, but contends that if he had filed his claim in the probate court, and thereafter filed his petition to remove the administrator for reasons stated in the petition, he would be in an inconsistent position after having recognized Carl Richter as administrator, and would, therefore, be estopped from making complaint. The answer is that the appointment of the administrator is not void, but if anything, is an improper appointment.

The filing of a claim is to present to the probate court facts that would justify an allowance and an adjudication of the claim. Such claimant in such a case would be an aggrieved person if the court in a proceeding for that purpose refused to remove an administrator improperly appointed, and under the statute he would be entitled to an appeal. The claimant would not be estopped, after the claim had been allowed, from calling the attention of the probate court to an improper appointment of an administrator of an estate.

It is contended, however, that a creditor would not' be able to file a petition for the appointment of an administrator under the statute where no administrator has been appointed, because it would be impossible to file a claim where no probate court proceeding was pending.

The statute provides for the appointment of an administrator, and where an administrator has not been appointed, a creditor may file his application for appointment as administrator, and the court in a proper case will enter an order to that effect; but after appointment, before an interested person can move to set aside such appointment, it must appear that he has such interest that upon failure of the court to act he is aggrieved and is entitled to the statutory appeal.

In view of the conclusions we have reached in this case, it follows that the order of the circuit court of Cook county will be affirmed.

Affirmed.

Wilson, P. J., and Friend, J., concur.


text:
    Chicago Trust Company, Receiver for Roosevelt-Bankers State Bank, and Oscar C. Brown, Receiver for Burr Oak Cemetery Association of Chicago, Appellees, v. Supreme Liberty Life Insurance Company, Appellant.
    Gen. No. 35,110.

      Opinion filed May 13, 1931.
    Earl B. Dickerson and Theophilus M. Mann, for appellant; Earl B. Dickerson, of counsel.
    Louis J. Behan and William J. Corrigan, for certain appellee; Bindley C. Cyrus, for certain other appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an interlocutory appeal by the Supreme Liberty Insurance Company, defendant, from an order giving Oscar C. Brown, receiver of the Burr Oak Cemetery Association, a corporation, other or further powers.

It appears from the record that on December 31, 1930, the Chicago Trust Company, a corporation, as receiver for the Boosevelt-Bankers State Bank, filed its bill in equity praying for the cancellation of $129,200 worth of Burr Oak bonds issued by the Burr Oak Cemetery Association, the dissolution and winding up of the affairs of said association, and, among other things, that a receiver be appointed by the court, with the usual powers and duties of receivers in chancery, to take possession of all the property, to be by him collected, marshalled and distributed under the direction of the court,

It further appears that on December 11, 1930, a judgment was reeoxmred against the Burr Oak Cemetery Association for a certain sum; that it has not been paid, and the Burr Oak Cemetery Association has permitted the judgment to remain unpaid for a period of more than ten days after demand by the sheriff of Cook county.

It also appears that on January 1, 1928, the Burr Oak Cemetery Association of Chicago, a corporation, executed 769 bonds of a total principal face value of $200,000; that said bonds were delivered to one Alexander Flower, pursuant to an agreement; that $70,800 worth of said bonds were sold by Flower to the Boosevelt-Bankers State Bank for the sum of $70,800 in cash drawn from said banks; that this was the only consideration paid by said Flower for said-bonds, and upon information and belief it is charged that Alexander Flower wholly failed to furnish any other consideration for said remaining bonds aggregating $129,200; that the bond issue was secured by a trust deed dated December 2,1927, on property of Burr Oak Cemetery Association of Chicago, to Carl J. Schuetze, as trustee.

In addition to the Burr Oak Cemetery Association, the Supreme Liberty Life Insurance Company, a corporation, and others, are defendants to this proceeding.

It also appears from the record that the Supreme Liberty Life Insurance Company is the holder of $60,000 principal face value, of said remaining bonds, which were delivered to the defendant insurance company by Alexander Flower.

Upon a motion based upon the bill as filed, the chancellor, on December 31, 1930, appointed one Oscar C. Brown receiver for said Burr Oak Cemetery Association, the order, among other things, authorizing said Brown to take possession of all the property, equitable interests, things in action and effects of the Burr Oak Cemetery Association, to be by the receiver collected, marshalled and distributed under the direction of the court, with full power and authority of the receiver to sue in all courts, and to do all things necessary to close up the affairs of the Burr Oak Cemetery Association, which order provided for the appointment of a receiver without complainant’s bond, and for a temporary injunction without notice.

On January 15, 1921, Oscar C. Brown, receiver for the said cemetery association, filed a petition, stating, among other things, that the Burr Oak Cemetery association owns, among its assets, 40 acres of land in the township of Worth, Illinois, which have been improved and dedicated for cemetery purposes; that several hundred graves have been sold from time to time by the Burr Oak Cemetery Association, and that he believed it would be for the best interest of the lot owners and creditors of the Cemetery Association if authority were given to said receiver to operate said cemetery.

The petition further states that for the purpose of operating the cemetery, said Brown as receiver should have authority to sell lots, graves and to do other things, and, therefore, asks that he be given authority to sell lots, graves, and boxes at certain prices, to pay commissions to undertakers and others for selling graves and lots and to do other things in relation to the running of a cemetery as a going concern.

Based upon the petition of the receiver, the court below entered an order giving the receiver authority to operate the cemetery.

The order complained of grants to the receiver in this case other or further powers in the conduct and operation of the Burr Oak Cemetery Association, and generally authorizes the sale of lots and graves at fixed prices, boxes used for burial purposes, a fixed charge for digging graves, the payment of commissions to undertakers, and such persons as act as agents, the employment of help at certain salaries, and the maintenance of a petty cash fund of $50. It is pointed out by the Supreme Liberty Life Insurance Company, defendant, that the receiver is given unlimited power to sell graves and lots, so that he may without restriction dispose of the corpus of the estate of the Cemetery Association, which would he,detrimental to the rights of bondholders who have a lien upon the land used for cemetery purposes.

It is conceded by the parties to this litigation that it is the duty of the court to require the receiver to continue the business of the Cemetery Association, at least for the benefit of lot and grave owners, so that they may have the benefit of the use of said ground for burial purposes if necessity requires, which use the owners of such ground were granted when they purchased the same from the Cemetery Association.

It may be said that the lien holders, or owners of the bonds secured by the trust deed on this ground, were chargeable with the knowledge that the ground was to be used for burial purposes. That part of thé order directing the receiver to continue the business for the benefit of the lot and grave owners was fully justified by the facts, and was not erroneous in permitting the receiver to operate the cemetery for that purpose. When a court of equity takes charge of property through a receiver, the property becomes chargeable with all the necessary expenses incurred in taking care of and saving it.

The object of the appointment of a receiver is to preserve the property for the benefit of all parties. Sometimes this object is best attained by continuing the business, but such right of the court to continue the business should be exércised with care and caution. It necessarily follows that the expense of the operation of such business is chargeable upon the corpus of the estate if the income derived from such property is insufficient to pay the same. Knickerbocker v. McKindley Coal & Mining Co., 172 Ill. 535. That part of the order in the instant case which grants unlimited power to the receiver to sell any and all lots and graves is too broad. It may not be necessary to dispose of the corpus of the estate in order to continue to meet the expenses of the cemetery, such as maintenance, necessary repairs, and other expenses incidental thereto, and the order should be limited to sell only to meet such expenses. The expense of operation is incurred on the theory that the property is better preserved and maintained in a condition that will be of benefit to all the parties.

The object of this litigation is to give the receiver authority to collect, marshall and distribute the assets under the direction of the court, and it may be that the assets may have to be sold subject to a lien of the bondholders, if the trial court so determines, but until that time it is the duty of the receiver to preserve this property and to operate it for the benefit not only of the lot and grave owners,- but also for the benefit of all other parties in interest, and if the money received by the receiver, is not sufficient to pay the running expenses, the court may make the necessary running expenses a charge upon the corpus of the estate.

The order, therefore, granting other or further powers is reversed and the cause remanded for further proceedings in conformity with the views expressed in this opinion.

jReversed and remanded.

Wilson, P. J., and Friend, J., concur.


author: Mr. Justice Boggs

text:
    Harry S. Streeter, Administrator of the Estate of Burry J. McGann, Deceased, Appellee, v. Calista Humrichouse, Appellant.
    Gen. No. 8,270.

      Opinion filed February 17, 1931.
    Rehearing denied May 29, 1931.

      Mann & Coleman and John A. Mathew, for appellant.
    J. Bert Miller and W. R. Hunter, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellee against, appellant in the circuit court of Kankakee county to recover pecuniary damages alleged to have been sustained by reason of the death of appellee’s intestate in a collision between appellant’s automobile and a switch engine on which appellee’s intestate was riding.

State highway 17 runs in an easterly and westerly direction and, in the City of Kankakee, is known as Court Street. The. Cleveland, Cincinnati, Chicago & St. Louis Railway Company’s main track and a parallel switch track cross Court Street, run in a northwesterly and southeasterly direction. Burry J. MeG-ann, appellee’s intestate, was in the employ of said railroad as a switchman.

On September 23, 1927, appellee’s intestate, with Joe Tooper and N. L. DuFresne, two other switchmen, had been doing some switching south of Court Street, and were returning on the engine to the yards on the north side of said street. The engine in question was backing in a northwesterly direction, the tender or tank being to the front. McGrann and the two other switchmen were riding on the footboard on the tender. Appellant was riding in an automobile driven by her son, going in an easterly direction on Court Street. Said automobile and engine collided on the crossing, and appellee’s intestate received injuries from which he died.

The declaration as filed contained fifteen counts. At the close of appellee’s evidence the court directed a verdict on the first, third and fourth counts.

The second, seventh, eighth, tenth, twelfth,, fourteenth and fifteenth counts aver due care on the part of appellee’s intestate, and general negligence on the part of appellant. The fifth count charges that appellant negligently drove her automobile across the tracks of said railroad in excess of ten miles per hour, etc. The sixth, ninth and thirteenth counts charge wilful and wanton conduct in the operation of said car. The eleventh count charges that appellee, through her agent and servant, drove said automobile at a speed greater than was reasonable and proper, having regard to the traffic and use of the way.

To said declaration appellant filed a plea of the general issue: A trial was had, resulting in a verdict and judgment in favor of appellee for $10,000. To reverse said judgment, this appeal is prosecuted.

It is first insisted that the court erred in admitting in evidence certain photographs purporting to show said crossing, on the ground that the evidence failed to disclose that the conditions were the same at the time the photographs were taken as at the time of said collision.

There was a garage located on the south side of Court Street, the northeast corner of which was 71 feet from the center of the track on which said engine was running. The testimony of appellant’s witnesses is that automobiles were parked between the garage and said track at the time of the collision, which obstructed the view of the driver of appellant’s car as it approached said crossing. On the part of appellee the testimony was to the effect that there were no automobiles so parked at the time in question. The photographs disclosed certain automobiles, which it is conceded were not placed or stationed in the same relative position as the automobiles were at the time of said collision.

Counsel for appellee insist that such variation is not of sufficient importance to render the admission of said photographs erroneous, and also insist that even if there was error in said ruling, appellant not having abstracted said photographs, she is not in a position to raise this question.

Inasmuch as the testimony of appellee’s witnesses disclosed that the automobiles were not in the same position as on the day in question, appellant is in position to raise this question, even though the photographs are not abstracted. The court erred in, admitting said photographs. Chicago & Eastern Illinois R. Co. v. Crose, 214 Ill. 602-611; Lake Erie & Western R. Co. v. Wilson, 189 Ill. 89-96; Lips v. Chicago City Ry. Co., 209 Ill. App. 332-340; Althoff v. Illinois Cent. R. Co., 227 Ill. App. 417-419.

It is next insisted that the court erred in refusing to direct a verdict on the wilful and wanton counts, motions to that effect having been made at the close of appellee’s evidence and again at the close of all of the evidence. In this connection it is insisted that the evidence wholly fails to sustain said counts and, there being a general verdict, the judgment must be reversed.

Tooper testified on behalf of appellee that he was on the left side of the footboard on said engine; that “as we approached State route 17 I saw two machines that came from the s'outh or from the east. They stopped at the crossing, and there was this Dodge roadster that had come from the west that did not stop. . . . When I first noticed this Dodge roadster he was just about in front of that oil station, possibly 110 feet. We were right on the frog of the cross-over, around 60 feet from the crossing. ... In my opinion this Dodge roadster was traveling between -80 and 35 miles an hour when I first saw it. The engine was traveling about 15 miles an hour. When we were right at thé'edge of the pave-. ment the automobile was about 20 or 25 feet, as near as I could tell, away from the track. ... I jerked my body up with the ladder and the grab iron and raised my body and feet above the car as he went by. . . . The automobile knocked two inches of skin off my shin and knee. The automobile crossed the track before the engine crossed the pavement. I did not notice its speed. It was straddle of the black line when he went over the crossing, as though he was rumiing around the tank. The car went toward the north and turned back on the pavement to the east. He went about 50 or 60 feet over the crossing and then he stopped. The automobile struck Mr. McG-ann. He was standing on the south or east side of the footboard. The engine was traveling about 15 miles an hour as it crossed over the concrete pavement. . . . DuFresne climbed the draw-bar after I climbed the ladder. McGann was crushed about the hips and his limbs and blood was running down his shoe.”

DuFresne testified on behalf of appellee: “As we approached State route 17 I didn’t see any automobile standing, but I saw one coming from the west. We were about 60 feet from the concrete pavement at the time we first saw the car. The automobile was about 100 or 110 feet, something like that, at that time. . . . I should judge this automobile was running 30 or 35 miles per hour. The engine was just a few feet from the crossing. ... I didn’t think the autom'obile slowed up any, about the same speed, the way it looked. We were almost across as he went around us. He kind of headed northeast, north and then east. . . . After the automobile struck McGann it went on east about 100 to 110 feet and stopped.”

O’Reilly, the engineer on said engine, testified: “I watched this particular automobile. It slowed down. I saw the automobile coming up and it was getting slower. I just kept on going. Pretty soon the automobile picked up speed and shot around the end of the tank. At the time I saw the automobile begin to pick up speed the end of the tank was about 10 feet from the concrete pavement and the automobile was about 10 feet from the track on which we were traveling. . . . The automobile swerved to the north, aromid to the rear end of the tank, and went from the south side of the pavement to the north side of the .pavement. It went across the track.” He further testified that when he first saw said automobile it was going about 25 or 30 miles an hour; “I noticed that it slowed down some but did not observe to what speed it slowed down, because I was busy at other things.”

All of said witnesses testified in effect that the regular crossing whistles were blown and that an automatic bell on the engine was ringing as said engine approached and crossed said highway.

On the part of appellant, her son testified that he and his mother were driving east on Court Street; that when they approached within a distance of 100 to 150 feet of said crossing they were going about 15 miles an hour, and slowing down all the time. He further testified: “On my right hand before I got to the railroad tracks there was a garage and filling station in' front of the garage, and several cars parked in between, east of the garage, between the garage and the tracks. When I passed the farthest east-automobile I looked to the north, because there was nothing there to obstruct my view. I was looking directly south as I passed out from the farthest east automobile. As I proceeded there I saw a railroad locomotive about 30 feet from the crossing. I was about 10 feet from the tracks. I just kept on going. If I had stopped I would have stopped right in the path of the locomotive. There wasn’t any use to try to stop. The locomotive hit our right rear fender.”

On cross-examination, this witness further testified: “I saw that big railroad- sign, ‘Railroad Crossing’ as I approached. ... I don’t remember seeing the board across it that said ‘Danger.’ I don’t remember seeing a square with a red background in it, with the word ‘Stop’ on top of it. . . .1 had been driving the automobile as I came up Court Street about 15 to 20 miles an hour; no faster than that. . . . My automobile was going about 10 or 12 miles an hour when I went over the tracks. This is my best judgment. As I came up to the tracks I was going 10 or 12 miles an hour. . . . I do not know exactly how many automobiles were standing between the garage and the track of the railroad company along the concrete pavement, but there was, for a space that, you could not see down the track. You could not see down the track until you got up to the track, and there were not places where you could see in between the automobiles. . . . The farthest east automobile from the track was about 12 or 15 feet, and these automobiles were about 8 or 10 feet off the pavement on route 17, south of the pavement. I did not come to a dead stop as I came up to the railroad before I crossed, I was going so slow. . . . As a matter of fact, I did not see the. engine until I was right on the-track. I am positive the bell was not ringing.” ■

B. T. Voorhees testified on behalf of appellant: “I was parked due west of the railroad crossing at the time of that accident. . . . Did not see the crash, but saw everything up to the time of the crash and after the crash. Noticed this Dodge coupe that was being driven by Mr. Humrichouse. . . . When I first noticed the car in front of the garage it was about 100 feet from the track. It was going at the speed of between 12 and 15 miles per hour. The car was gradually slowing up from the time I first noticed it. As it went past where I was parked, approximately 50 feet from the track, I would estimate it at 10 miles per hour, or slowed down to about 10 miles per hour. I am not positive the car stopped, before it got to the crossing. I do know it slowed down.”

This witness further testified: “Did not hear any bell or whistle sounded as I was sitting there. Saw the engine coming from the south prior to the accident. It was between 400 and 500 feet down the track, south of the highway, when I noticed it. The engine was headed south, with the tank end to the north. I noticed automobiles parked south of the pavement, between the garage and the railroad crossing. There were two or three, possibly three, I am positive there were two and could have been three. They were parked in a line, with very few inches of space between them. The nearest car was between 20 and 25 feet from the crossing.”

Melba Walters testified on behalf of appellant that she was at said crossing just prior to the accident; that she had gone to the car occupied by Mr. Voorhees to deliver a paper and that “just at that time I noticed a car as I went across, and I looked to see whether to go across or not; saw an automobile coming along there, the one that was in the accident later. Didn’t pay any attention as to how it was going. It was not going fast, because I had time to get across. ’ ’

The foregoing is the substance of the testimony with reference to the speed of appellant’s car and of the engine in question.

. Appellee relies on the speed of appellant’s car to support said wilful and wanton counts. It is insisted by counsel for appellee that appellant’s car was being driven at from 30 to 35 miles per hour, to and over said crossing, and in view of the fact that there was a crossing signal and a stop signal, at or near said crossing, such speed amounted to wilful and wanton conduct and warranted the jury in finding appellant guilty under said counts.

It has been repeatedly held that a violation of the statute of a State or the ordinance of a city, governing the speed of automobiles or trains, is not of itself proof of wilfulness in the infliction of an injury, though such violation be an unlawful act. Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510-516; Blanchard v. Lake Shore & M. S. Ry. Co., 126 Ill. 416-426; Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559-566; Pittsburgh, C., C. & St. L. Ry. Co. v. Kinnare, 203 Ill. 388-390; Henning Brewing Co. v. Atchison, T. & S. F. Ry. Co., 150 Ill. App. 514-516; Enochs v. Trevett, 229' Ill. App. 235-240.

Nor is an injury regarded as constructively intentional unless it appears that it was the direct, usual, natural and probable result of such unlawful act. Enochs v. Trevett, supra, 240. In 5 Corpus Juris 623, it is said:

“If defendant did an illegal or mischievous act which was likely to prove injurious to another, he is answerable for the consequences which directly and naturally resulted from his conduct, even though he did not intend to do the particular injury which followed. ’ ’

While it is true that actual ill will is not a necessary element of a wanton act, still, to constitute a wanton act “the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness.” Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392-397; Enochs v. Trevett, supra, 241.

In Lamarre v. Cleveland, C., C. & St. L. Ry. Co., 217 Ill. App. 296, this court, quoting from 29 Cyc. 510, at page 305, said:

“ ‘In order that one may be held guilty of wilful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. In order to establish wantonness it is not necessary to show an entire want of care. The violation of a statute does not constitute a wilful wrong. A wilful injury will not be inferred when the result may be reasonably attributed to negligence or inattention. ’ ’ ’

The evidence in reference to the speed of appellant’s automobile as it approached the crossing in question is conflicting, but, assuming* that it was going from 30 to 35 miles per hour, as testified to by two of appellee’s witnesses, there is nothing in this evidence tending to show an intentional injury to anyone, nor is that speed on a State highway, where it crosses a railroad crossing, proof of a reckless disregard of the rights of the persons and property of others, such as to evince a willingness to. do injury. The danger signals referred to were erected primarily for the protection of the traveling public on the street or highway where it crosses a railroad. The possibility that driving across a railroad track in a light automobile will result in injury to anyone on an engine or in a passenger coach is slight. Taking the evidence in its most favorable light to appellee, it fails to support said wilful and wanton counts.

The next question for our determination is as to whether, the verdict being general, the fact that the evidence fails to support the wilful and wanton counts necessitates the reversal of the judgment. In discussing a question of this character, the Appellate Court in Grinestaff v. New York Cent. Railroad, 253 Ill. App. 589, at page 596 says:

“The cause went to the jury on all the counts in the declaration and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wilfully or wantonly and negligently at the same time. (Chicago City Ry. Co. v. Jordan, 215 Ill. 390; Walldren Express & Van Co. v. Krug, 291 Ill. 472; 45 Corpus Juris, 674, 1090 and 1091; Chicago R. I. & P. Ry. Co. v. Hamler, 215 Ill. 541; Kalinski v. Williamson County Coal Co., 263 Ill. 265; Goodman v. Chicago & E. I. Ry. Co., 248 Ill. App. 128, 137; Stoike v. Bonasera, 243 Ill. App. 281, 286; Burns v. Chicago & A. R. Co., 229 Ill. App. 170, 186.)

“In Stoike v. Bonasera, supra, the court say on page 286:

“ ‘ “Negligence and wilfulness are as unmixable as oil and water. ‘Wilful negligence’ is as self-contradictory as ‘guilty innocence.’ ” Salmond says, “No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.” Salmond on Jurisprudence, p. 409 (7th Ed.).’ ”

Under the foregoing authorities, the verdict being general, the judgment must be reversed.

It is next insisted that the court erred in its rulings on the instructions.

As to appellee’s first given instruction it is contended that the court erred in stating that appellee’s intestate “was crushed between said automobile and the tank of the engine.” While the evidence tended to show that to a certain extent the limbs of appellee’s intestate were crushed, there was no occasion for the court so stating in the instruction.

Appellee’s fourth instruction is erroneous in that it in effect assumes that appellant’s son was guilty of wilful and wanton conduct.

Instructions 5, 6 and 11 are argumentative and tend to invade the province of the jury, and should not have been given.

It is contended that appellee’s eighth and thirteenth instructions erroneously referred to the maximum amount which can be recovered in an action of this kind. Said instructions in effect state the provisions of the statute, and, under the holding in- Deming v. City of Chicago, 321 Ill. 341-344, they cannot be held .erroneous. However, there was no occasion for the giving of both of these instructions, as they were of the same character, and the repetition was not proper. Nelson v. Chicago City Ry. Co., 163 Ill. App. 98-102; Wood v. Illinois Cent. R. Co., 185 Ill. App. 180-184; Daubach v. Drake Hotel Co., 243 Ill. App. 298-304, 305.

Other errors were assigned on the record, but in view of what we have already said it will not be necessary to discuss the same. For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Wilson Brothers, Appellee, v. Thomas Haege (Charles A. Beers, Trustee in Bankruptcy), Appellant.
    Gen. No. 8,295.

      Opinion filed May 21, 1931.
    J. J. Neigbr, for appellant.

      Connelly, Weld, Walker & Searle, for appellee; Franklin P. Searle, of counsel.
   Per Curiam.

On April 22,1925, Thomas Haege, a retail merchant of Bock Island, Illinois, made an assignment to the American Trust and Savings Bank of said city for the benefit of his creditors. Haege was thereafter adjudicated a bankrupt and on May 6, 1925, appellant was appointed his trustee in bankruptcy.

On April 23, 1925, appellee filed in the circuit court of Bock Island county a form of. affidavit in replevin, signed by William F. Bettke, agent for appellee, describing a quantity of men’s furnishings and apparel of the value of $1,500, and charging that the same were being wrongfully detained by Haege and said bank, etc. The jurat there is dated April 23, 1925, but is not signed and no seal is attached thereto. A writ of replevin was issued to the sheriff of said county, which was returned, showing that said goods had been replevined and delivered to appellee. ,

The appearances of Haege and of the American Trust and Savings Bank were filed by their attorneys. Thereafter on motion and affidavit of Charles A. Beers, trustee in bankruptcy of Haege, he was made a party defendant and filed pleas. The defendant bank and Haege also filed pleas. Demurrers filed by appellee to certain of said pleas were overruled, on September 29, 1926, and appellee was ruled to reply within ten days. On October 19, 1926, appellee was defaulted for failure to comply with said rule, and on motion of defendants the suit was dismissed at the costs of appellee and a writ of retorno habendo was ordered issued to appellant. Thereafter, on November 12, 1926, by stipulation, the judgment by default was set aside, the cause was reinstated and appellee replied to said pleas.

On November 2, 1927, the defendants moved to dismiss said cause for want of an affidavit. On hearing, the “unsworn affidavit” was presented, and the motion was denied. Said cause was tried and a verdict returned in favor of appellee. Judgment was rendered thereon from which judgment appellant prosecutes this appeal.

It is first contended that the court erred in denying the motion of appellant to dismiss said cause, it being contended that the filing of an affidavit as provided by statute is jurisdictional and cannot be waived.

Counsel for appellee insists that while the filing of an affidavit has been held to be jurisdictional, the courts, in using said term, did not refer to the jurisdiction of the subject matter, but to the jurisdiction of the particular cause then under consideration; that, while want of jurisdiction of the subject matter cannot be waived, want of jurisdiction in a particular case may be waived and, on the record in this case, has been waived.

More than two years had elapsed since the institution of said proceedings, and a year and five months since the general appearance of appellant, before the making of said motion to dismiss. During the interim, appellant had filed pleas to the merits, obtained a rule on appellee to reply thereto, procured a default against appellee for failure to comply with said rule, and thereafter stipulated that such default be set aside and that the cause be reinstated.

If objection to the sufficiency of an affidavit in replevin can be waived, it has been in this case.

In this connection, counsel insist that a replevin suit is a statutory proceeding and is to be strictly construed; that, under the provisions of said statute, the filing of an affidavit is necessary in order to inaugurate such proceeding; that an instrument purporting to be an affidavit, not sworn to, amounts in law to no affidavit at all; that it therefore follows that the trial court at no time had jurisdiction of the subject matter of said litigation and this question can be raised at any time. In support of this contention, counsel cite Daugherty v. Carnine, 261 Ill. 366; City of Chicago v. Hitt, 334 Ill. 619, and Brown v. VanKeuren, 340 Ill. 118.

In each of the cases cited by counsel, the court had before it statutory proceedings not according to the course of the common law. In order for the court to obtain jurisdiction in that character of case, there must be a substantial compliance with the provisions of the statute.

“Where a court is exercising special statutory jurisdiction, the record must show upon its face that the case is one where the court has authority to act. . . . Jurisdiction in such cases is never presumed, and if it does not appear, the judgment will be void.” Brown v. VanKeuren, supra, 122. To the same effect are Daugherty v. Carnine, supra, and City of Chicago v. Hitt, supra. In the latter case, the court at page 628 says:

“A court of general jurisdiction may have a special statutory jurisdiction conferred upon it not exercised according to the course of common law, and which does not belong to it as a court of general jurisdiction. Nothing is taken by intendment in favor of the jurisdiction of a court of limited jurisdiction, or of a court of general jurisdiction while exercising special or limited powers. In the latter case, the record must show the facts which authorize the court to act, and a judgment rendered without jurisdiction may be treated as void everywhere.”

Prior to the enactment of the statute on replevin, the circuit courts of this State had jurisdiction in actions of replevin, as a part of their common law jurisdiction.

The question before the court, therefore, is, first, whether the filing of said unsworn instrument purporting to be an affidavit, was sufficient to give the court jurisdiction of the particular case; second, if not sufficient, was the want of such jurisdiction of a character that could be waived?

An instrument, otherwise in proper form, not sworn to, is not sufficient to give the court jurisdiction in an action of replevin. Kehoe v. Rounds, 69 Ill. 351; Stolberg v. Ohnmacht, 50 Ill. 442; Clow v. Gilbert, 54 Ill. App. 13A-141; Evans v. Bouton, 85 Ill. 579. Where, however, the defendant appears and pleads without raising objection to the affidavit or to the jurisdiction of the court, he is thereafter held to have waived such objection. Frink v. Flanagan, 1 Gilm. 35, 36, 37; Center v. Gibney, 71 Ill. 557; Udell v. Slocum, 56 Ill. App. 216-218. See also Fisher v. Brown, 111 Ill. App. 486-491.

In Frink v. Flanagan, supra, the court had before it the record in a replevin suit. The affidavit filed with the clerk did not comply with the requirements of the statute. The court, in discussing said affidavit, at page 38 says: <

“Should the plaintiff have been allowed to have amended his affidavit, is a question to which we have been able to find no case, except Cutler v. Rathbone, 1 Hill, 206, which was a case, in all the features, precisely like this, except that it does not appear but that the motion to dismiss was made at the earliest appearance of the defendant. There the court held, under a statute similar to ours, that an affidavit like this was insufficient, but that it might be amended, and this without any statutory provision on the subject. As we think this rule will tend to promote justice and prevent delays, we are disposed to adopt it. . . . This rule also disposes of another question raised on the argument, and that is, that the motion to dismiss was made too late after the defendant had appeared and pleaded. As we hold that such an affidavit is not the foundation of the jurisdiction of the court, the appearance and pleading was a waiver' of the irregularity in issuing the writ without a sufficient affidavit. ’ ’

In Center v. Gibney, supra, the court had before it a forcible detainer proceeding. The affidavit filed in the justice court did not show that it had been sworn to. The court at page 558 says:

“It is urged by counsel for plaintiff in error that the case of Stolberg v. Ohnmacht, 50 Ill. 442, is decisive of the question raised in this. ... In that case, no complaint in writing was filed, sworn to or otherwise, which fact distinguishes it from the case under consideration, and hence it cannot be regarded as an authority controlling this case. In this cause, before the summons issued, a .complaint, in writing, was filed with the justice, which seems to be regular in all respects, except the jurat is omitted. The transcript of the justice, however, shows that it was sworn to. The defendant is in no position to take advantage of the omission of the justice to add the jurat. Had he desired to take advantage of the decision of the circuit court in overruling the motion to dismiss on account of the defect in the complaint, he should have excepted to the ruling of the court. This he failed to do, and he cannot now-insist upon that as error. Dickhut v. Durrell, 11 Ill. 72; Wright v. Wheeler, 55 Ill. 528; Snell v. Trustees, 58 Ill. 290. The case then appears in this situation: The defendant appeared before the justice of the peace and went to trial without making any objection to the complaint. In the circuit court he again submitted to a trial without objection. The transcript of the justice shows the complaint was sworn to. Under these circumstances, although the filing of a complaint is jurisdictional, we think it but reasonable to hold that the defendant has waived the defect that existed to the complaint.”

In the cases cited by counsel for appellant the court had primarily before it the question of the necessity of a proper affidavit, and not as to whether that requirement could "be waived.

In Stolberg v. Ohnmacht, supra, relied on by counsel for appellant, the court at page 443 says:

“This was an action of forcible entry and detainer, in which the justice issued a summons without an affidavit filed. The defendant appeared and moved to dismiss the suit. The. justice overruled the motion. . . . The affidavit is the foundation of the jurisdiction, and has been constantly so held in this court. The justice had no jurisdiction when he issued the summons, and could acquire none, for the purposes of that suit, by allowing an affidavit to be filed on the day of trial. . . . The justice had brought the defendant into court by summons, and he had appeared, but having brought him there, he had no jurisdiction to compel him to defend against a complaint for forcible entry and detainer, because no complaint had been made in any manner of which the justice could take cognizance, and the law requires it to be made at the beginning, as the jurisdictional foundation for the entire proceedings.”

In Kehoe v. Rounds, supra, being another of the cases relied on by appellant, the court had- before it a replevin proceeding. At page 353 the court says:

< < There was, in fact, no affidavit in replevin, and the writ was improvidently issued. What purports to be one was never sworn to, and is really no affidavit in the cause.”

In that case, there was no appearance by the defendants, so there was no waiver of any defects in the jurisdiction of the court in the particular case involved.

Evans v. Bouton, supra, cited by appellant, was a replevin proceeding instituted before a justice of the peace. No affidavit was filed, the defendant defaulted and the justice rendered judgment against him. On appeal to the circuit court, a motion was made by the defendant to dismiss the proceeding for want of jurisdiction, and it was urged by the plaintiff that the motion came too late. At page 581 the court says:

“Since no law makes it the duty of a defendant to appear to a summons issued by a magistrate, his nonappearance should work him no prejudice; and if he makes a motion going to the jurisdiction, at the earliest moment, in the circuit court, he is in time, and is entitled to the benefit of his motion. . . . This court said, in Center v. Gibney, 71 Ill. 557, filing the complaint was jurisdictional, but the objection had been waived by the party. . . . The objection was made by the defendant at the first practicable moment, and he should have the benefit of it. ’ ’

In none of the cases cited by counsel for appellant had the defendant entered his appearance or done anything to waive his right to question the jurisdiction of the court in the particular case. Inferentially, said cases hold that irregularities of the character here involved could be. waived, and would be waived if not raised in apt time.

In Taylor Coal Co. v. Industrial Commission, 301 Ill. 381, the court at page 364, in discussing the matter of waiver, etc., says:

“The general rule as applied to courts is, that jurisdiction of the subject matter, — which means jurisdiction of the class of cases to which the particular case belongs, and not jurisdiction of a case within such a class, — cannot be waived. The method by which jurisdiction of a particular case within the general class of cases is obtained, and any defects or irregularities in respect thereto,'may be waived, and are waived unless seasonable objection is made in accordance with the established practice. (O’Brien v. People, 216 Ill. 354; Franklin Union v. People, 220 Ill. 355.) Where a court has jurisdiction of the subject matter and may take jurisdiction of a particular case, if certain conditions exist, and no objection is raised to the exercise of jurisdiction, ... a party will be deemed to have waived the jurisdictional question.” Citing Burnap v. Wight, 14 Ill. 303; Stout v. Cook, 41 Ill. 447; Crawford v. Schmitz, 139 Ill. 564; Hauger v. Cage, 168 Ill. 365; Law v. Ware, 238 Ill. 360; Peterson v. Manhattan Life Ins. Co., 244 Ill. 329; People v. Evans, 262 Ill. 235.

Under the foregoing authorities, the court did not err in denying appellant’s motion to dismiss said proceeding.

While other errors were assigned on the record, on the merits of the cause counsel for appellant argues three propositions:

First, that the court'erred in its rulings on the instructions.

Second, that remarks were made by the court during the trial of so prejudicial a character as 'to constitute reversible error.

Third, that appellee “had no right to rescind and bring replevin for goods purchased on account, and mostly paid for.”

On the first proposition, it is contended that the court erred in giving the first, fifth arid seventh instructions given on behalf of appellee, and in refusing the twentieth and twenty-second instructions tendered by appellant.

Appellee’s first instruction sets forth that “the burden of proof is upon the plaintiff, and it is fqr it to prove its case by a preponderance of the evidence. Still, if the jury find that the evidence bearing upon the plaintiff’s case preponderates in its favor, although but slightly, it would be sufficient for the jury to find the issues in its favor. ’ ’

Counsel for appellant, in this connection, cites Molloy v. Rapid Transit Co., 335 Ill. 164; Bunch v. Abbott, 256 Ill. App. 33. While the court, in Molloy v. Chicago Rapid Transit Co., held the giving of said instruction to be erroneous, there were other errors which were also held to be of a reversible nature. In Bunch v. Abbott, the record contained other errors, which the court held were highly prejudicial to the rights of the appellant. No case has been cited, and we know of none where the court has reversed a judgment alone for the giving of an instruction of this character.

Appellee’s ninth instruction stated that “ ‘the preponderance of the evidence,’ as used in the court’s instructions, means the same as the words ‘greater weight of evidence.’ ” Appellant’s, eleventh instruction states that “the burden of proof in this case is not on the defendants to disprove the plaintiff’s case, but such burden is on the plaintiff to prove its case by a preponderance of all the evidence in the case, and if you believe from all the evidence in the case that the plaintiff has failed to make such proof, or that the evidence is evenly balanced, then your verdict must be for the defendants.” The instructions are to be taken as a series. So considered, there was no reversible error in giving of appellee’s first instruction. Taylor v. Alton & Eastern R. Co., 258 Ill. App. 293-301.

The principal ground relied on to support the action of replevin was that Haege, ■ on February 10, 1924, rendered an inventory or financial statement to appellee, and on the strength of that statement the goods in question and others were sold by appellee, to Haege; that said financial statement was false, and misrepresented Haege’s financial condition; that, among other things, there were over $11,000 worth of notes held by the People’s National Bank of Bock Island, signed by Haege, which were not contained in said statement; that some $7,000 of indebtedness was owing to the Q-. B. Tailoring Company of Chicago, which was also not contained in said statement or inventory.

The evidence on the part of appellee tends to show that on the strength of said statement, credit was extended and goods shipped to Haegethat said statement was false,- that while it showed a total indebtedness of only $11,200, his indebtedness was in fact something over $27,000; that, on April 22, 1925, after the making of said statement, the assignment above referred to was made by Haege and he was thereafter adjudicated a bankrupt.

The only excuse offered by Haege for his failure to include said notes in said statement is set forth in his testimony, as follows: “In the early part of the year 1923 I had a conversation with J. L. Vernon (president of said bank) at People’s National Bank regarding the disposition of the department stores in the City of Bock Island. It was early in March. Just Mr. Vernon and myself were present. I asked Mr. Vernon why they didn’t dispose of their stores. It was hurting the town and they weren’t doing anything, and he said, ‘Tom, I would like to have you figure out some way whereby we could get rid of them, and I would be too glad to pay you well for it. ’ I told him I Would think it over and see him the next day. The next day I saw him again in the bank and just he and I were present. I told him at that time that there was only one way, and that was to reincorporate and have h. buying power. That is, to have some incorporation to buy out the old holdings. So then is when we started. ... I had a conversation with Mr. Vernon about my compensation for this work in my store, 1823 Second Avenue, in the forepart of July, 1923. Mr. Vernon and I were present. I told him that it was costing too much, that I was losing too much money staying away from the store, that I would have to quit it and take care of my own business. He said ‘Don’t quit now. I will make it,’ or ‘I will pay you more than you lose in the store. ’ Then I continued on. I sold the Young & McCombs Store. . . . After the transaction had been completed I had a talk with Mr. Vernon about it in the bank at the forepart of December. I went in and began to talk about the notes in the bank. I told him that I wanted to have them fixed up; that I had completed my job selling the store and wanted it fixed, and he said, ‘Tom, don’t worry now, they will all be taken care of.’ In these conversation's that I had with Mr. Vernon he told me that the stores owed the bank a lot of money; that he himself wouldn’t get so much out of it, only in the lease. ’ ’

On cross-examination, he testified: “On February 10, 1924, the notes were in the bank, but I did not know it. I signed those notes. They aggregated about $11,000. I signed them at different times. . . . When the president went out of the bank and the new cashier went in, I gave renewal notes to the bank since February 10, 1924. . . . When Mr. Vernon left the bank, the bank called me in and I signed new notes. I knew I had to, because they hadn’t been taken care of as he agreed. ’ ’

It was the theory of appellee that, in order to authorize a rescission of the sale of the goods shipped subsequent to said statement, it was only required to show that the statement was false and that appellee was prejudiced thereby. Appellant’s theory in reference thereto is set forth in his refused instructions, No. 20 and No. 22, which are as follows:

“20. The Court further instructs the jury that the plaintiff cannot recover in this case unless it was entitled, prior to the institution of the suit in question, to rescind the sales made by the plaintiff to the defendant of the goods in question in this suit, and that to authorize the plaintiff to disaffirm and rescind the sale of said goods you must believe that the plaintiff has proven by preponderance of all the evidence the following three propositions, viz.:

“First. That at the time said goods were purchased the said Thomas Haege was insolvent or in failing circumstances.

“Second. That the said Thomas Haege must have had at the time he purchased said goods a preconceived intention not to pay for the said goods, or no reasonable expectation of being able to do so.

“Third. That there was intentional concealment of these facts or a fraudulent representation in reference to them by said Haege upon which the plaintiff relied, and unless you believe from a preponderance of all the evidence in the case that the plaintiff has proven all three of these propositions, then your verdict should be for the defendant.”

“22. The court further instructs the jury that unless you believe at the time the said Thomas Haege bought the goods in question he had a preconceived intention not to pay for said goods, or no reasonable expectation of being able to do so, then your verdict should be for the defendants.”

In Reed & Co. v. Pinney & Co., 35 Ill. App. 610, the court at page 611 says:

“To entitle one to rescind a sale of goods that has been induced by false and fraudulent statements, the vendor is only required to show the statements made, that he relied upon them to his injury, and that they were false. The intent "or motive with which such false ¿representations were made need not be shown.”

“It is fraud in law if a party makes representations which he knows to be false, and injury ensues, although the motives from which the representations proceeded may not have been bad.” Case v. Ayers, 65 Ill. 142-144; Reed & Co. v. Pinney & Co., supra, 611.

In Case v. Ayers, supra, the court at page 145 says:

“In Stone v. Denny, supra, it was laid down that fraud will be inferred when a party makes a representation which he knows to be false, or as to which he has no knowledge or information, and no grounds for expressing Ms belief. ... If the representations were false in the particulars named, the defendant must, from the very nature of the case, have known them to be false. ’ ’

The language there used is peculiarly applicable to the facts in this case.

In Borders v. Kattlemcm, 142 Ill. 96, the court at page 103 says:

“It is well settled that it is immaterial whether a party misrepresenting a material fact knows it to be false, or makes the assertion of the fact without knowing it to be true, for the affirmation of what one does not know to be true is unjustifiable, and if another act upon the faith of it, he who induced the action must suffer, and not the other. ’ ’

Rowe v. Phillips, 214 Ill. App. 582, cites and approves that language of the Supreme Court in Borders v. Kattleman, supra, above set forth.

In Allen v. Hart, 72 Ill. 104, the court at page 105 says:

“It is not indispensable to the right to rescind that the party guilty of making the misrepresentation knew it was false, or whether he was ignorant of the fact stated, provided it was material and the other party had a right to rely upon it, did so, and was deceived.”

• Without setting out appellee’s fifth and seventh instructions, it is only necessary to say that they cor^ rectly embody appellee’s theory as above set forth, and under the authorities cited, the giving of said instructions was not erroneous. Neither did the court err in refusing appellant’s instructions Nos. 20' and 22.

It is next contended that appellant was prejudiced by the remarks of the court during the trial of said cause. While there' were numerous colloquies between court and counsel, and while the court and counsel for appellee may not have been as guarded in their remarks at all times as they should have been, there is nothing in the record in this connection ■ that could have seriously prejudiced appellant.

Lastly, it is contended that appellee had no right to rescind and bring replevin “for goods purchased on account, and mostly paid for.”

At the time said financial statement was made, Haege owed appellee $3,994. From that date until approximately May 1, 1925, goods amounting in the aggregate to some $10,000 were shipped to Haege. Payments on account were made by Haege between February, 1924, and April 6, 1925, aggregating about $7,000. The invoice price of the goods replevined was $2,378.03. When Haege discontinued business, before the goods were replevined, he owed appellee $6,800.

The testimony on the part of the witnesses for appellee tends to show that the goods replevined had been shipped to Haege subsequent to the rendition of said financial statement, while the evidence on the part of appellant is to the effect that, as to certain of said goods, they had been purchased and shipped to him prior to said time. The court in numerous instructions informed the jury that appellee was not entitled to recover for any goods that had been purchased and paid for, nor any goods that had been sold prior to February 14,1924. The evidence being conflicting, and the court having fully instructed the jury that appellee was not entitled to recover as to any goods shipped prior to February 14,1924, we would not be warranted in reversing the judgment, as the weight of the evidence and the credibility of the witnesses was peculiarly for the jury.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.