author: Mr. Justice Niehaus

text:
    The United Electric Coal Companies, Appellee, v. Keefer Coal Company of Illinois et al., Appellants.
    Gen. No. 8,422.

      Opinion filed January 26, 1931.
    Rehearing denied April 10, 1931.
    Sims, Godman & Stransky and Rearick & Meeks, for appellants; Franklin J. Stransky and George F. Rearick, of counsel.
    Acton, Acton, & Snyder, for appellee; W. M. Acton, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

This appeal from a decree of the circuit court of Vermilion county was transferred to this court by the Supreme Court. United Electric Coal Cos. v. Keefer Coal Co., 338 Ill. 288.

The opinion of the court transferring the cause summarized the facts as follows:

“The United Electric Coal Companies filed a bill in the circuit court of Vermilion county on July 29, 1927, against the Keefer Coal Company of Illinois, the object of which was to obtain an injunction against the declaration of a forfeiture of a certain lease of lands in Fulton county, Illinois, for the purpose of mining and removing the coal in and underlying such lands until the arbitrators to whom had been submitted a question in dispute as to the quantity of merchantable coal within the terms and meaning of the lease had rendered their finding in the premises and until the Court should otherwise order, and for further equitable relief. Upon the filing of the bill a temporary injunction was granted in accordance with the prayer of the bill. The bill was answered, a cross-bill was filed by the New York Trust Company, the trustee in a mortgage on the property, two of the three arbitrators made an award, supplemental bills were filed and answered, the cause was heard, and on April 27, 1929, a decree was entered which construed the lease, set aside the award, ascertained the whole amount of rental to become due from the lessor to the lessee under the lease and the amount which had accrued on the date of the decree, being $143,016.95, and the complainant having brought that sum into court and made payment of it to the Keefer Coal Company of Illinois, the injunction bonds of $175,000 required by the previous decrees of the court were ordered released and all liability under them discharged because of the payment to the Keefer Coal Company of Illinois, the acceptance of the money to be without prejudice to any of the claims of the Keefer Coal Company or its right to question, on appeal, any provision of the decree except as to any liability on the injunction bonds. It was further decreed that the Keefer Coal Company of Illinois be enjoined from declaring any forfeiture of the lease so long as the United Electric Coal Companies made payment to the Keefer Coal Company of the payments under the lease as they may hereafter accrue, at the times and in the amounts determined by the decree.”

“This litigation grew out of a mining lease of 1320 acres of land in Fulton county, Illinois, by William W. Keefer, the owner, to the Electric Coal Company, dated May 1, 1923, but actually executed a few days later, whereby the lessor leased the premises to the lessee for the purpose of mining and removing the coal for a period of fifteen years and eight months, beginning May 1,1923, and ending December 31, 1938. The lessee agreed to pay as rent the aggregate principal sum of $2,000,000, to be increased or diminished, however, in the manner provided in the lease, if there is an overplus or a deficiency of merchantable coal in the premises as the lease provides. The rent was agreed to be paid in installments of $25,000 on or before January 1, 1924, for the remaining eight months of -1923, $75,000 on or before January 1, 1925, for 1924, and $135,714.38 each succeeding year, payable in quarterly installments of $33,928.57, beginning April 1, 1925. The rent of $2,000,000 was predicated upon 1000 acres of merchantable coal, surface measurement, underlying the premises leased, and it was agreed that upon uncovering the coal a complete survey of the leased premises would be made by engineers of the parties to determine the quantity of merchantable coal in the premises, and if the survey showed more than 1000 acres of merchantable coal, surface measurement, in the premises, the lessor should be paid by the lessee additional rent therefor at the rate of $2,000 an acre, and if the survey showed a deficiency of merchantable coal a deduction would be made from the rent reserved of $2,000 an acre. Should any question arise between the parties as to the quantity of merchantable coal, provision was made for submitting the question to arbitration.

“The contract is signed by Keefer and the Electric Coal Company. Attached to it is a guaranty executed by the United Electric Coal Companies reciting that it owns all the capital stock, except qualifying shares, of the Electric Coal Company and controls its business in operation and agrees that the Electric Coal Company will make all payments specified in the lease and perform all its covenants. Attached to the bill as an exhibit is an agreement between Keefer and the Keefer Coal Company of the first part and the United Electric Coal Companies of the second part, reciting the lease of May 1,1923, its assignment by the Electric Coal Company, the guaranty by the United Electric Coal Companies and the assignment by Keefer of all his rights in the premises to the Keefer Coal Company, and stipulating that the party of the first part sells to the party of the second part the premises described, with, the agreement that when the money specified in the lease shall have been paid, the party of the first part will convey and assure to the complainant by warranty deed, free of incumbrance, the fee simple title to the land, furnishing abstracts showing merchantable title and agreeing to cure any defects. The United Electric Coal' Companies went into possession of the land and began and continued to mine coal by the stripping method. The engineers for the respective parties made a joint survey of the land and were unable to agree upon the number of acres underlaid with merchantable coal, the appellee’s engineer finding that there were 874.42 acres and the appellant’s that there were 911.54 acres. On October 28, 1926, the United Electric Coal Companies notified the Keefer Coal Company that a dispute existed as to the amount of merchantable, practically recoverable coal in the premises and as to the amount of the thirteen annual payments beginning in January, 1926, and thereafter requested that the questions be submitted to arbitration and named Walter C. Lindley as arbitrator. The Keefer Coal Company named James N. Jarvis as arbitrator, and these two selected John C. Slade as the third member, as provided by the lease. The arbitrators proceeded to a hearing, and an award was rendered by Jarvis and Slade, in which Lindley did not join, fixing the number of acres at 887.37.”

Under the assignments of error in this case, several questions are presented for review which arise from the averments of the original bill and the supplemental bill that were filed in due course of the controversy. The appellee avers in the original bill that by legal construction of the terms and provisions of the lease contract in question, the term “merchantable coal” therein used should be held to mean only “such coal which is recoverable by the stripping process of mining. ’ ’ The original bill was filed after the disputed questions which had arisen between the parties had been submitted to arbitration under the provision in the lease contract in relation thereto, and before the arbitrators had made their award. And after the award by the arbitrators had been made the first supplemental bill was filed, which raises the question of the validity of the award of the arbitrators; also brings into the controversy new contentions, namely, that there was a mutual mistake made in the drafting of the contract; and that the contract does not express the real intention of the parties thereto, concerning the amount of “merchantable coal” to be paid for by the appellee; and that the term “merchantable coal” according to the terms of the lease contract and according to the real intention of the parties, should be construed to mean, “the coal practically recoverable by the so called stripping process of mining”; and that the contract should therefore be reformed by adding to the words “Merchantable Coal” wherever they occur in the contract, “strippable and.” A determination of the disputed questions in the controversy also necessitate a determination of the dominant question in dispute, namely, how much rent is due and to become due and payable to appellant under the terms of the lease contract.

There is no evidence in the record from which the inference could be reasonably drawn that a mutual mistake was made by the parties in the wording of the contract; nor is there any evidence to show mutual intention of the parties to contract differently from written terms and conditions of the contract in question; on the contrary, the evidence is clearly to the effect that the contract was made by parties of unusual intelligence, who dealt at arm’s length; and was the result of much negotiation and correspondence and repeated and detailed considerations of the subject matter and the terms and provisions of the contract. And the inference to be drawn from the evidence leads to the conclusion that both parties were thoroughly familiar with the subject matter and the effect of terms and conditions of the contract; and that they were fully conversant with the words and language used in expressing its terms and provisions. We are of opinion, therefore, that the construction to be given the contract concerning the disputed questions raised in this litigation should be based on the written instrument itself as it was made by the parties. Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281; Chicago Auditorium Ass’n v. Fine Arts Bldg., 244 Ill. 532; Rector v. Hartford Deposit Co., 190 Ill. 380; Tayloe v. Riggs, 1 Pet. (U. S.) 590; Van Ness v. City of Washington, 4 Pet. (U. S.) 232; Hoefeld v. Ozello, 290 Ill. 147.

It may also be pointed out that there is no ambiguity in the contract; and that the terms and provisions thereof concerning the matter in dispute are clear and conclusive.

While the contract recites that the lessee desires to acquire certain tracts of land owned by the lessor which are underlain with coal, “for the purpose of mining the coal therefrom by the so called stripping or other method,” it is apparent from the consideration of the contract in that regard that both parties assumed and expected that the stripping method of mining coal would be the only method employed. This is especially made clear by the provisions of paragraph 9 of the contract, which provides: “The lessee shall work and mine said leased coal premises in the most effectual, workmanlike and proper manner, according to the most approved and suitable methods and practices of modern strip mining, and in such manner as ultimately to recover the greatest amount of merchantable coal practically recoverable from said leased premises that are operated during the term of this lease.”

And it is also clear that this method of mining has no bearing upon the question of ascertaining the amount of rent which the lessee is required to pay for the premises leased. In reference to this disputed question the contract provides that “the lessee will pay as rent to the lessor an' aggregate principal amount of $2,000,000; which amount however, may be increased or diminished as provided in section 2 of the contract; if there is an overplus or deficit of merchantable coal in the leased premises, ’ ’ as provided in that section. And the provisions of section 2 concerning this matter are as follows: ‘ ‘ The said sum of Two Million and no/100 ($2,000,000) Dollars is predicated upon there being one thousand (1000) acres, surface measurement, of merchantable coal in and underlying the premises herein leased”; . . . and if “there are more than One Thousand (1000) acres of merchantable coal, surface measurement, in the said" premises, the lessor shall be paid by the lessee additional rent therefor at the rate of Two Thousand and no/100' ($2,000) Dollars per acre, and if such results disclose a deficiency of merchantable coal, a deduction from the amount of the total rent herein reserved will be made at the rate of Two Thousand and no/100 ($2,000) Dollars per acre. The annual payments due January 1, 1926, and thereafter, as hereinbefore provided, shall be ratably increased or diminished to take care of such overplus or deficiency in the quantity of coal herein leased when such quantity shall have been determined.” . . . “Should any question arise between the lessor and the lessee as to the quantity of merchantable coal in said leased premises, either the lessor or the lessee may submit such question to arbitration in the manner hereinafter set out in Section Fifth hereof.”

It is apparent, from the terms and provisions of the contract referred to, that any reduction or increase in the amount of rent to be paid by the lessee under the contract is made to depend entirely on the amount of merchantable coal in the premises leased; and that the amount of merchantable coal is to be ascertained by a survey, and surface measurement of such coal. No other way of ascertaining the amount of merchantable coal is provided for in the lease; the amount of merchantable coal in the premises is to be ascertained by surface measurement of the coal and not by an inquiry or investigation of the amount of merchantable coal “recoverable by the stripping method of mining*.”

It is also evident, from what has been said, that a reformation of the contract as prayed for by appellee in the first supplemental bill would have the effect of making a new contract for the parties; and a contract which would be materially different from the one which they made for themselves.

Concerning validity of award of the arbitrators the record discloses that the submission to arbitration was made under the provisions of the contract in that regard, to settle matters in dispute, and which are substantially the same as are involved in this litigation. This is made clear by the averments of the original bill filed by the appellee to enjoin a forfeiture of its contract, which are to the effect arbitrament was made to ascertain “the quantity of merchantable coal within the terms and meaning of said lease,” and thereby to determine the amount of the thirteen annual payments of rent beginning January, 1926, and thereafter. The averments of the bill in that regard are as follows: “That the complainant and Keefer Coal Company of Illinois, ‘were unable to agree through their respective engineers as to the quantity of merchantable and recoverable coal in the premises described in the aforesaid lease.’ And complainant avers, that instead of there being a 1000 acres of merchantable coal within the meaning of said term as used in said contract, there was in fact not to exceed in any event 600 acres of such coal, and that in pursuance of the provision of said lease that should any question arise as to the quantity of merchantable coal, that either party might submit such question to arbitrators, complainant did so request several months ago and in pursuance thereof, complainant selected Walter C. Lindley as an arbitrator, the Keefer Coal Company of Illinois selected James N. Jarvis, and these two thus chosen, selected John C. Slade, as the third member.' That thereupon said arbitrators accepted the performance of their respective duties, and proceeded to hold hearings on the question and dispute aforesaid, ‘as to the quantity of merchantable coal within the terms and meaning of said lease,’ and both parties have introduced evidence and said proceeding is now pending, and undetermined and awaiting the decision of the arbitrators; and although the complainant avers, that it, in good faith, has offered evidence that completely proves the correctness of its contention that the amount of merchantable coal is short approximately 400 acres, and that nothing is due on July 1, 1927, yet the Keefer Coal Company of Illinois insists upon dedaring a forfeiture of said lease. That the trustees in said mortgage have notified complainant that they have received the preliminary notice of default above mentioned, and have called upon complainant to pay the sum of $33,928.57, in order to avoid a default under the terms of the mortgage. . . . That if for any reason the arbitrators are unable to agree upon an award, or if for any reason said proceedings end without a decision of the question in dispute, as above set forth, then complainant avers that this court should take jurisdiction of the question in dispute, and determine upon a hearing in this cause, ‘the number of acres of merchantable coal within the meaning of said lease’; and further, that the words merchantable coal as used in said lease when taken in connection with the written proposal of the said William W. Keefer, the actions and conduct of the parties should be construed to mean ‘merchantable and recoverable coal, ’ by the usual process of stripping; and should said arbitrators decide said question, then this court in the event that either party desires to have a decree entered in reference to said award, that the court should enter such decree as equity and justice may require.”

The contract provides, concerning the binding-effect of the award, that a decision of the majority of the board of arbitration is to be final and conclusive when made in writing, and a copy delivered to each party, by whom the costs and expenses are to be borne, is to be decided by the arbitrators. No suit at law or in equity based upon a dispute subject to arbitration shall be instituted by either party, other than to enforce the award of the arbitrators.

The award which was made on September 27, 1927, by a majority of the arbitrators, is as follows: “The undersigned as arbitrators in the arbitration proceedings between United Electric Coal Companies, a corporation, and Keefer Coal Company of Illinois, a corporation, do hereby make the following decision and award: (1) That within the meaning of Section 2 of the lease between William W. Keefer of Pittsburgh, Pa., and Electric Coal Company, a corporation, of Illinois, executed May 14, 1923, as of May 1, 1923, the quantity of merchantable coal, surface measurement, in and underlying the premises therein described and demised, is, Eight Hundred Eighty-Seven and thirty-seven one-hundredths (887.37) acres; (2) That the results of the survey made by the engineers of the party, pursuant to the provisions of Section 2 of said agreement of May 1, 1923, disclose a deficiency of merchantable coal in said described premises of One Hundred and Twelve and sixty-three one hundredths (112.63) acres, on account of which the total rent reserve in Section 1 of said lease shall be reduced at the rate of Two Thousand ($2000.00) Dollars for each acre of such deficiency and the annual payments falling due January 1, 1926, and thereafter, ratably diminished, as provided in Section 2 of said lease. (3) The arbitrators have no authority or jurisdiction to determine how much of the merchantable coal in and underlying said demised premises is practically recoverable therefrom by stripping or otherwise. (4) That each party is to bear its own expense in the preparation for and presentation of its case to the arbitrator, including expenses and fees of counsel and witnesses; and the remaining expenses in connection with the arbitration, including the fees of the stenographer for reporting the testimony and furnishing transcripts, the charges for photostatic or other copies of exhibits, the costs of printing the abstract of record and expenses of arbitration.”

Objections to the validity of the award made by the appellee in its supplemental bill are as follows:

(1) That it does not determine the matter submitted to said arbitrators and purports to cover another separate subject matter and is beyond the jurisdiction of the arbitrators.

(2) That at the time of the execution of the original contract set forth in Exhibit 2, there was no then existing dispute between the parties, and that the provisions in said contract are for that reason null and void.

(3) That on Oct. 28, 1926, complainant complained that a dispute existed on the following questions, to-wit: (1) The amount of merchantable practically recoverable coal on the premises described in said lease; (2) the amount of the thirteen annual payments beginning January 1926 and thereafter.

We cannot agree with the appellee that its objections to the validity of the award are well founded. The arbitrators determined the real disputed questions between the parties which was submitted to them, and this is from the averments of the original bill and substantiated by the award itself: “The quantity of merchantable coal within the terms and meaning of the contract”; and “the amount of the thirteen annual payments to be made by the appellee, beginning January 1926 and thereafter. ” It is true, that the arbitrators did not determine “that at the time of the execution of the original contract set forth in Exhibit 2, there was no then existing dispute between the parties; and that the provisions in said contract are for that reason null and void”; nor did they determine how much of the merchantable coal underlying the leased premises was practically recoverable therefrom by the stripping method or otherwise. These matters were not within the legal and contractually fixed scope of the arbitration; nor did they have any bearing upon the questions in dispute; nor was a determination of them necessary for a decision on the matters in dispute which were submitted for an award. We are of opinion that the award is valid and was made in accordance with the provisions of the lease contract; and that the award is complete and final settlement of the disputed questions submitted for arbitration and involved in this controversy; and that therefore the award should have been sustained and enforced by the circuit court. It is well settled law, that parties may agree to submit questions to the arbitrament of persons or tribunals other than the regularly organized courts; and such contracts are valid and will be enforced. Pacaud v. Waite, 218 Ill. 138.

For the reasons stated, the decree of the circuit court is reversed and cause is remanded with directions to render a decree finding that the matters in controversy concerning the rights and obligations of the parties to this litigation, which are the subject of this litigation, have been fully and finally settled and determined by the award of the arbitrators referred to, and order the award to be carried into effect.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    In re Application of George Bartlett for Discharge from Imprisonment.
    Gen. No. 8,485.

      Opinion filed February 26, 1931.
    Johnson & Pefferle, for appellant.
    Scott & Scott and George C. Hoffman, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, George Bartlett, a debtor, was arrested and imprisoned in the county jail charged with unjustly refusing to surrender his property for satisfaction of an execution issued against him upon a judgment recovered against him by St. John’s Hospital for the sum of $294.15. Thereupon in conformity with the provisions of Cahill’s St. ch. 72, if 8; sec. 5, ch. 72, Smith-Hurd Illinois Revised Statutes 1929, a trial by jury was had in the county court of Sangamon county upon the question of whether or not the debtor had refused to surrender his property to satisfy the execution referred to; and the jury returned a verdict of not guilty. The judgment appealed from was rendered upon the verdict.

The only question raised upon appeal for reversal of the judgment is, that the verdict is manifestly against the weight of the evidence. Three witnesses, including the appellee, testified that the constable, who it is alleged had the execution, came to the dwelling house of the appellee and entered the house without knocking; and after he had entered, did not disclose the fact that he came there as constable, and had an execution, and was about to make a levy under it. These were vital matters in the proof to sustain the charge against appellee. It is true that Frank Johnson, the constable, and Guy Lee, another constable, who went with Johnson to appellee’s house, flatly contradict the testimony of the appellee and the other two witnesses who testified in his behalf concerning the matters referred to. These witnesses testified that Johnson knocked on the door and was invited into the house; and informed the appellee that he was a constable; and that he had an execution; and wanted to levy it. The jury in this case, as in any other, are the judges of the credibility of the witnesses who testify. It is clear that they believed the appellee and his witnesses; and did not believe the witnesses who testified to sustain the charge against appellee. This court would not be warranted in saying that the jury should not have given credence to the testimony of the appellee and his witnesses; but should have believed the witnesses called to sustain the charge against him. And under these circumstances the court would not be justified in holding that the verdict is manifestly against the weight of the evidence.

The judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. Fred Bott, Plaintiff in Error.
    Gen. No. 8,274.

      Opinion filed March 18, 1931.
    H. A. Brooks and Edward A. Jones, for plaintiff in error.
    Mark C. Keller, State’s Attorney, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.

An information in three counts, charging plaintiff in error with the possession and sale of intoxicating liquor in violation of the Illinois Prohibition Law, Cahill’s St. eh. 43, If 1 et seq., was filed by the State’s Attorney in the county court of Lee county. To said information, plaintiff in error entered a plea of not guilty. Prior to the trial, plaintiff in error filed a written motion to impound certain liquors, on the ground that the search warrant under which said liquors were seized was not properly verified. The court denied said motion. A trial was had, resulting in a verdict of guilty, on which judgment was rendered. Plaintiff in error was fined $200 on the first and third counts respectively and was sentenced to the county jail for 60 days on the second count. To reverse said judgment this writ of error is prosecuted.

A. E. Simonson administered the oath to the witness signing the affidavit on which said search warrant was based. The record discloses that Simonson was elected to the office of police magistrate in the City of Dixon, in the spring of 1927. He was thereafter elected to the office of town clerk of the town of Dixon, duly qualified, and entered upon the discharge of his duties, and was such town clerk at the time the search warrant in question was issued. It is contended by plaintiff in error that while Simonson had been regularly elected and qualified as police magistrate, his election, qualification and acceptance of the office of town clerk must be held an abandonment of the office of police magistrate ; that Simonson was therefore without authority to administer said oath. On the other hand counsel for defendant in error insists first that Simonson continued as police magistrate and had not in fact become town clerk; second, that there is no incompatibility in the offices of police magistrate and town clerk, such as to render void his acts as such police magistrate; third, that even though Simonson was not a de jure police magistrate, he was a de facto magistrate, and, this not being a direct proceeding to question his title to the office of police magistrate, his acts should be held valid and binding.

Article three of the constitution provides, “The powers of the government of this State are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.”

This article includes in its prohibition each of the three departments of the State government and it applies with equal force to all. No department can arrogate to itself any control over another department in matters which by the constitution have been confided exclusively to the other department. Fergus v. Kinney, 333 Ill. 437-441; People v. Rathje, 333 Ill. 304-307; North v. Board of Education, 313 Ill. 422-426; Saxby v. Sonnemann, 318 Ill. 600-603; McQuade v. City of Joliet, 293 Ill. 515-518.

If an officer in one department of government attempts to exercise authority and powers properly belonging to another department, his acts and doings in attempting to exercise such power's are void. Saxby v. Sonnemann, supra, 605; People v. Rathje, supra, 308.

Simonson therefore could not hold the judicial office of police magistrate and also the executive office of town clerk at the same time. People v. Haas, 145 Ill. App. 283-286; Packingham v. Harper, 66 Ill. App. 96; People v. Hanifan, 96 Ill. 420-422. Where a party has been elected to two incompatible offices, if he qualifies and accepts the office to which he was last elected, he will be held to have abandoned that to which he was first elected. People v. Haas, supra, 286; Packingham v. Harper, supra, 100; People v. Hanifan, supra. In the latter case, the court at page 422 says:

“An officer in a municipal corporation may of course resign his office, or he may abandon it by removal or otherwise,' which will be treated in law as an implied resignation.

■ “Nothing can be clearer than that Eoewe did and intended to abandon his office as alderman under the special charter. This is manifest, not only from the fact he ceased to attend their meetings altogether, but that he accepted the position of alderman from the same ward under what was supposed to be an organization under the general law. . . . His position as a member of the council under the general law was incompatible with his duties as alderman of the city under the special charter.

"One of the modes by which a member of a corporation may be said to impliedly resign his office is by being elected to and accepting an office incompatible with the duties of his former office.”

The contention of counsel for defendant in error that there was no incompatibility in the two offices to which Simonson was elected is not well taken. The mere fact that these offices were in different departments of government, one judicial and the other executive, is a sufficient showing of incompatibility. In People v. Haas, supra, the court at page 286 says:

"Incompatibility, in this connection, is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other. . . . Bacon’s Abridgement Vol. 7, Tit. £ Officers, ’ K.; Rex v. Tizzard, 9 B. & C. 418; 1 Dillon on Mun. Corp., pp. 308-9, secs. 225-7 and note 4; McCrary on Elec., sees. 336 et seq. 4th Ed.; Mechem on Pub. Off., sec. 429; Dickson v. People, 17 Ill. 191; People ex rel. v. Hanifan, 96 Ill. 420; Packingham v. Harper, 66 Ill. App. 96. Prom these authorities it also appears that in case of incompatibility the acceptance of the second office is ipso facto a resignation of the first office. By his own action the officer expresses his voluntary resignation.”

Nor is the contention of defendant in error, that Simonson must he held to he at least a de facto police magistrate, well taken. In Sascby v. Sonnemann, supra, the court in discussing a question of this character at page 609' says:

“The provision of the constitution is, that one who is a member of one department of the State government cannot exercise the powers of another department. There are no circumstances under which a member of the legislature could become a de facto officer of the executive department. ’ ’

We therefore hold that Simonson was neither a de jure nor a de facto magistrate at the time he purported to administer the oath in question. His purported act in this connection was void, and the court committed reversible error in refusing to so hold.

It is next insisted that the information was not properly verified. The information was filed by the State’s Attorney, but was sworn to by- a private citizen; the contention being that where an information is filed by a State’s Attorney, it must be verified by him. In support thereof, counsel cites People v. Clark, 280 Ill. 160.

The question in the Clark case was as to whether the statute making it unnecessary for an information to be verified where filed by a State’s Attorney, was valid. The court held said provision unconstitutional. It did not, however, hold that an information must be verified by the State’s Attorney. That question was' not before it. In People v. Fensky, 290 Ill. 612, the court at page 614 says:

“In the Clark case, the information was not sworn to by anyone, and it was held the provision of the ‘statute that when the information is presented by the Attorney General or State’s Attorney it need not be sworn to, was in violation of section 6 of the bill of rights.”

That question is not presented in this case, as the information here is verified. Under the holding of the Supreme Court, the verification is sufficient. Gallagher v. People, 120 Ill. 179-182.

It is next contended that the verdict is not supported by the evidence. Inasmuch as this cause will have to be reversed, we will not discuss the weight of the evidence.

It is also insisted that the court erred in giving the People’s fifth instruction, which is as follows:

“The jury are instructed that the rule requiring the jury to be satisfied of the guilt of the defendant from the evidence beyond a reasonable doubt in order to warrant a conviction is complied with if, taking the testimony altogether, the jury are satisfied beyond a reasonable doubt that the defendant is guilty. The reasonable doubt the jury is permitted to entertain to authorize an acquittal must be as to the guilt of the accused on the whole evidence and not as to any particular fact in the case not necessary to constitute the crime charged.”

While the Supreme Court, so far as we are advised, has never reversed a judgment solely for the giving of said instruction, yet it has been frequently criticized. People v. Cramer, 298 Ill. 509; People v. McGrane, 336 Ill. 404. In the latter case, the court at page 407 says:

“Reviewing the same instruction in People v. Cramer, 298 Ill. 509, we said that it required the jury to determine what were the material facts or final essential elements of the crime with which the defendant was charged; that the question was a legal one and could not properly be submitted to the jury, and that such an instruction should not be given without in some way defining the essential elements constituting the crime for which the defendant was indicted. The same instruction was again condemned in People v. Johnson, 317 Ill. 430, where we said: . . . ‘It is not correct to say that a reasonable doubt as to any particular fact in a case is not sufficient to justify an acquittal, without distinguishing between facts which are material and constitute a necessary element of the crime and those which are not so material and necessary.’ . . . People v. Birger, 329 Ill. 352; People v. Rongetti, 331 Ill. 581.”

Lastly, it is insisted that the jury was not legally organized, and that the court erred in not sustaining the challenge to the array. This question is not raised by the assignment; of errors.

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: Mr. Justice Wolfe

text:
    Emily Bell Maloy Webb, Appellant, v. William E. Hill and Walter Philp, Appellees.
    Opinion filed January 19, 1931.
    June C. Smith, for appellant.
    Curtis Williams and Gilbert & Gilbert, for certain appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On February 15, 1922, the appellant and appellee William E. Hill entered into a contract in which Hill agreed to convey to the appellant the property in dispute in this suit, the property to be conveyed to the appellant when she had fully complied with the terms of the contract. Hill did not have title to the property, but had a contract of sale for the same with Walter J. Gilbert, the owner in fee. According to the contract Hill was not to receive title to the property until he had fully complied with the terms of his contract. Hill took possession of the property under his contract and continued to keep the same and operate the hotel thereon until February 15,1922, the date that he entered into the contract with the appellant, Mrs. Webb; and on the same date Mrs. Webb went into possession of the property and has continued in possession of the same down to the date of this suit.

On April 10, 1923, Walter J. Gilbert assigned his copy of the contract which he had made with Hill on September 1, 1920, to one of the appellees, Walter Philp. On September 19, 1923, Walter J. Gilbert, the owner of the property in fee conveyed the same to appellee Philp by deed. Shortly after Philp had obtained the deed from Gilbert he and Hill went to the hotel and had a conversation about the property with Mrs. Webb. There is a dispute as to what took place during this conversation, but there is no question but that Philp had notice and knowledge that Mrs. Webb was in possession of the property and held it under a contract of purchase from Hill. Mrs. Webb continued her payments according to her contract and tendered to Hill $600 as a final payment on her contract and demanded a deed for the property. Hill had not kept up his payments under his contract with Gilbert and at the time of the demand by Mrs, Webb for the deed to the property, he owed a balance of $6,000. Hill refused to make a deed for the property on the ground that he could not obtain title from Philp on account of his failure to make payment as required by the contract with Gilbert. Philp refused to make a deed to the property until all of the contract price had been paid to him under the contract between Hill and Gilbert, which had been assigned to Philp.

The appellant brought suit against the appellees in the circuit court of Jefferson county for the specific performance of the contract entered into by the appellee, Walter E. Hill, in which he agreed to convey the property to her. The court heard the evidence and found that the equities of the case were with the defendant and dismissed the bill for want of equity. The complainant excepted and prayed an appeal to this court and has perfected the appeal.

It is the contention of the appellants that, although there was no contract between the appellant and appellee Philp, yet, under the circumstances in the case, Philp should be ordered to specifically convey to the appellant the property in question. No case has been called to this court’s attention where the facts are similar to the ones in this case; but our courts have repeatedly held that to justify an order requiring specific performance, all of the terms of the contract must be specifically followed. In the case at bar, the appellee Philps is not a party to the contract as between the appellant and Hill. In the case of Gage v. Cummings, 209 Ill. 120, 122, our court, in discussing the case of specific performance used the following language: “ A contract to be specifically enforced by the court must be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be freed from the difficulty attending its execution in the former.”

There was no mutuality of contract between the appellant and the appellee Philp. We are of the opinion that the chancellor properly ruled that the bill should be dismissed for the want of equity. The judgment of the circuit court of Jefferson county is hereby affirmed.

Affirmed.


text:
    William L. Voellinger, Appellee, v. Walter J. Kohl, Appellant.

      Opinion filed March 11, 1931.
    Rehearing denied April 23, 1931.
    P. K. Johnson, for appellant.
    E. D. W: Holder and Maurice V. Joyce, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

William L. Voellinger of Belleville, Illinois, brought suit in the circuit court of St. Clair county, Illinois, against Walter Kohl, also of Belleville, to recover $5,000 alleged to be due from the defendant under an oral contract for services rendered by the plaintiff for the defendant as a real estate broker, in procuring a tenant for real estate owned by the defendant in the City of Belleville, Illinois.

The declaration of the plaintiff charges that he was a duly licensed and registered real estate broker in the City of Belleville, Illinois; that on October 29, 1929, the defendant was indebted to the plaintiff for the sum of $5,000 for labor and services rendered by the plaintiff as such real estate broker, for procuring a tenant for certain real estate that the defendant owned in Belleville, Illinois. The declaration describes the property of the defendant and charges that the plaintiff procured such tenant for said property at a rental value of $14,000 a year for a period of 30 years. The defendant filed a plea denying that he had ever had any contract whatever with the plaintiff to procure such tenant; also denying that the plaintiff did procure for him a tenant.

The case was tried before a jury in April, 1930, in said court. The jury found in favor of the plaintiff. After motion for a new trial was overruled, judgment was entered for the plaintiff in the sum of $5,000.

At the close of the plaintiff’s case the defendant asked leave to file a special plea alleging that the plaintiff on May 7 to 13, inclusive, was not a duly authorized and licensed broker in the City of Belleville, Illinois, for the reason that he did not have a license as such broker from the City of Belleville as provided by ordinance of said city. Leave to file said plea was denied by the trial court. The appellant argues at some length that it was error for the trial court not to permit him to file such plea. We are of the opinion that the plea was bad. It is not contended by the appellant or appellee that Voellinger did anything towards the consummation of this deal after April 15. The evidence clearly shows that at all times during these negotiations for the lease, which was finally consummated by the defendant and with the Grant Company, that the plaintiff was a duly authorized and licensed real estate broker in the City of Belleville. The license required of a broker is for the time that he renders the service for which he seeks to recover compensation. (Cooper v. Schoeberlein, 247 Ill. App. 147.) We are of the opinion that the trial court properly refused to allow the filing of this plea. The appellant is not in a position to raise that question in this court as he had not assigned the same as error in this court.

Objection is made to the rulings of the trial court upon questions of evidence. The plaintiff was permitted over the objection of the defendant to introduce in evidence copies of papers instead of the originals. These letters, or exhibits, were introduced for the purpose of showing the efforts the plaintiff made to procure the lease for the defendant. We think that under the circumstances in this case it was proper to admit this evidence. We are of the opinion there was no reversible error in the admission of evidence in this case.

It is admitted by both parties that the defendant did enter into a lease with the Grant Company as set forth in the plaintiff’s declaration. The evidence is conflicting as to whether the plaintiff had a contract with the defendant to procure a lease and whether the plaintiff was the procuring cause of the Grant Company entering into the lease with the defendant. The jury whose province it is to weigh the facts, saw the witnesses on the witness stand and heard them testify, and they are usually in a better position to weigh the facts and judge the credibility of the witnesses than a court of review. Our courts have repeatedly held that where the evidence is conflicting, it is for the jury to weigh the same and determine where the preponderance is, and their findings will not be disturbed unless it is manifestly against the weight of the evidence. (Howitt v. Estelle, 92 Ill. 218; Green v. Mumper, 138 Ill. 434; and many others may be cited to this effect.)

The question submitted to the jury was purely one of fact for their determination, and, although this court may be inclined to take a different view of the evidence from that entertained by the jury, yet, where they have fairly arrived at a verdict in the absence of error their verdict should stand. In this case we think the evidence fairly establishes the fact that Voellinger had a contract with Kohl; that if he procured a lease for the Grant Company for a term of years at a rental value of $1,000 a month, the defendant would pay for such services $5,000. The evidence further shows that Voellinger did make an effort to procure the Grant Company as tenant for the appellant Kohl; that the agent of the Grant Company came to Belleville, Illinois, to consult with Voellinger and Kohl about the lease. The fact that Kohl, the owner of the property, concluded the lease in the absence of the appellee would not relieve him from liability of paying the appellee’s commission that he had earned when he was instrumental in bringing the parties together, and was the procuring cause in making the lease. (Hafner v. Herron, 165 Ill. 242; Day v. Porter, 161 Ill. 235; Hawkins v. Taylor, 186 Ill. App. 355.) We think the plaintiff has proven by a preponderance of the evidence his contract with the defendant and that he was the procuring cause in finding a tenant for the defendant. The jury properly found these facts in favor of the plaintiff.

The appellant assigns as error that the plaintiff’s attorney in his concluding argument made remarks that were prejudicial to the defendant and for that reason the judgment of the trial court should be reversed. No doubt the trial court properly sustained the objection and reprimanded the plaintiff’s attorney for the remarks he made. The argument was in answer to the remarks of the attorney for the defendant in claiming that the plaintiff was trying to collect $1,250 for each of the four letters that the plaintiff had written in trying to procure this lease for the defendant. The defendant is hardly in a position to raise this question as error, as it appears to this court that his attorney’s argument was hardly justifiable under the facts in the case. We are of the opinion that it was not reversible error in the case, and had no effect on the jury in arriving at the facts in the case.

We find no reversible error in the case and the judgment of the circuit court of St. Clair county, Illinois, is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Barry

text:
    H. J. Schmidt et al., Appellees, v. Modern Woodmen of America, Appellant.

      Opinion filed April 8, 1931.
    George G. Perrin, Nelson O. Pratt and Sonnensohein, Berkson, Lautmann, Levinson & Morse, for appellant; George G. Perrin, Henry S. Moser and I. E. Ferguson, of counsel.
    Hoopes & Pefferle, J. Paul Carter, Perry H. Hiles and Frank C. Smith, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellees, insured members of the Modern Woodmen, filed a bill in which they averred that at the meeting of the Head Camp of the society held in June 1929, by-law 42 was so amended as to greatly increase the insurance rates; that, for certain reasons stated, the said by-law as amended, and all other acts of the Head Camp at said meeting are, and the court should declare them to be, illegal and void, and appellant should be enjoined from enforcing the same. The court ordered a temporary injunction and appellant appealed.

Appellees anticipated and sought to avoid the defense of res judicata by averring that after the said meeting of the Head Camp a suit was brought in the circuit court of Cook county, known as Jenkins et al. v. Talbot et al., challenging the legality of the action of the said Head Camp in the allocation of funds; that other members of the society intervened in said suit and the case was prosecuted to the Supreme Court which held that the by-laws were legally adopted, but appellees averred that, in the said Jenkins suit, the questions of fraud, the method of the formation of the said Head Camp and its operation as alleged in the present bill were not in controversy in said former suit. The present bill does not deny that the alleged invalidity of the said amended hy-law was an issue submitted to the court in the Jenkins case. We think it a fair inference, in the absence of a denial, that the alleged invalidity of said amended by-law was an issue in that case.

Appellant filed an answer in which it denied the material allegations of the bill but admitted that soon after said meeting óf the said Head Camp the Jenkins suit aforesaid was brought to contest the legality of the said amended by-law 42 and to restrain the society and its officers from enforcing the same. Appellant averred that in said suit the question as to the method and manner of the adoption of said amended by-law was involved; that said suit was brought by Edward W. Jenkins and four other members of the society in their own behalf and in behalf of all other members; that some other members filed intervening hills in that case in which it was averred that the said amended by-law 42 was illegal and void because it was fraudulently enacted, setting out the alleged fraudulent acts ; that by leave of court the averments as to the alleged fraudulent acts were stricken; that the said cause was heard upon the bill and answer by the circuit court of Cook county and the bill was dismissed for want of equity.

Appellant’s answer set out the decree of the said circuit court in the Jenkins case, in haec verba, from which it appears that the court found and decreed that said amended by-law 42 was duly, regularly and legally adopted and that the same is valid, legal and binding upon the complainants, intervening complainants and all other members of the Modern Woodmen of America. The answer also averred that the said decree was in all respects affirmed by the Supreme Court in Jenkins v. Talbot, 338 Ill. 441. While the answer does not come up strictly to the requirements of the authorities to show res judicata, it is substantially sufficient, under our practice, without reciting all the allegations of the former bill, as avoiding prolixity in pleading. Gage v. Ewing, 107 Ill. 11.

From the bill and answer in the case at bar, the decree in the Jenkins case and the opinion of the Supreme Court affirming the same, it clearly appears that one of the causes of action relied upon in the Jenkins case was the alleged invalidity of amended by-law 42. The cause of action set out in the present bill is the alleged invalidity of the same by-law. Appellees cannot make it a new or different cause of action by averring that the by-law is invalid and void for other known reasons which could have been but were not presented to the court in the Jefokins case. A single cause of action cannot be litigated piecemeal. When a cause of action has been finally adjudicated that ends the controversy.

A complainant sought relief on the ground that he was entitled to an equity in land by reason of a contract and deed executed by a married woman, the owner of the land. A decree dismissing his bill for want of equity was affirmed. Rogers v. Higgins, 48 Ill. 211. He then filed a new bill, upon the same ground, in which he averred an additional reason why he should have the same relief that was sought in the former case. The court held, on that branch of the case, that each bill stated the same cause of action; that in the second bill the complainant was simply insisting upon an additional ground in support of the same cause of action sought to be enforced in the first case. Rogers v. Higgins, 57 Ill. 244.

In that case the court said: “A party cannot have a cause of action adjudicated upon piecemeal, in this way. When the complainant before presented his cause of action before the court, he should have brought forward and urged all the reasons which then existed, for the support of it. The controversy cannot be reopened to hear an additional reason, which before existed, and was within the knowledge of the party, in support of the same cause of action. No one should he twice vexed for the same cause of action. This principle of res adjudicaba, embraces not only what actually was determined in the former case, but also extends to any other matter properly involved, and which might have been raised and determined in it. (Citing cases.) The appellant has had his day in court as respects this cause of action, an alleged equity growing out of the execution of said contract and deed. That must suffice. He cannot be heard again in respect to that.”

After a hearing on the merits, a bill to enjoin the collection of a certain tax was dismissed for want of equity. The same party filed a second bill seeking the same relief in which he set forth other reasons. It was held that the prior adjudication was conclusive, not only as to the matters actually determined, but as to every other thing within the knowledge of the parties which might have been set up as a ground of relief or defense. Ruegger v. Indianapolis & St. Louis R. Co., 103 Ill. 449. A minor, by his guardian, filed a bill claiming title to certain land and on the hearing it was dismissed for want of equity. In a second suit he sought to recover the same land on other and different grounds not presented in the first suit. The court held that the controversy could not be reopened to hear additional reasons which before existed, and were within the knowledge of the party, in support of the same cause of action; that the principle of res judicata embraces not only what actually was determined in the former case, but also extends to any other matter properly involved and which might have been raised and determined in it. Bailey v. Bailey, 115 Ill. 551.

A decree dismissing, after a hearing on the merits, a bill to establish title in complainant to land held by her brother in his name is res judicata of a subsequent bill for substantially the same relief, where complainant bases her claim in each case upon the same contract although the second bill alleges a different reason from the first bill for the taking of the title in the brother’s name, and where no ground for relief is urged in the second bill that did not exist at the time of the first adjudication. Godschalck v. Weber, 247 Ill. 269.

A complainant must present all the grounds showing his right to the relief prayed for which could have been presented, and if he fails to do so he cannot be allowed, in a second suit, to take advantage of such omission. All questions relating to the same subject matter which were open to consideration and which could have been settled in the first suit are conclusively settled, as between the parties, whether they were presented or not. Marie Church v. Trinity Church, 253 Ill. 21.

The Jenkins suit was brought in behalf of the complainants and in behalf of all other members of the society. It was a class suit. Where a bona fide bill is filed and litigated by representatives of a class and the subject matter of the suit is common to all, the decree binds the entire class as fully as if all were before the court. People v. Clark, 296 Ill. 46. Where a law has been held constitutional by the Supreme Court in a class suit, new reasons for holding it unconstitutional cannot be assigned in a subsequent suit by other members of the class. Greenberg v. City of Chicago, 256 Ill. 213; People v. Whittaker, 254 Ill. 537. Where the constitutionality of a statute has been upheld by a court of last resort the question cannot be relitigated in a subsequent suit between the same parties by assigning new reasons for holding the act invalid, which reasons existed when the decision was rendered. In re Northwestern University, 206 Ill. 64.

The Supreme Council of the Royal Arcanum, a Massachusetts mutual benefit society, adopted an amended by-law increasing its insurance rates. Some members of the order filed a suit in Massachusetts against the corporation in their own behalf and in behalf of all other members seeking to set aside the said by-law on the ground that it was invalid and void. The court decreed that the by-law was valid and binding and dismissed the bill for want of equity. Later, a member of the order living in New York brought a similar suit in the courts of that State and it was held that the question of the validity of the by-law was res judicata because of the Massachusetts decree which was entitled to full faith and credit under the Federal Constitution. Supreme Council of Royal Arcanum v. Green, 237 U. S. 531.

Certain certificate holders sued the insurance company in the courts of Connecticut in their own behalf and in behalf of all others similarly situated, seeking relief on account of changes made by the company and the action of the company in that regard was sustained. Later, a certificate holder living in Minnesota died and his beneficiaries sued the insurance company in the courts of that State and raised the same question that had been previously litigated. It was held to be res judicata because of the Connecticut decree which was entitled to full faith and credit. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662.

Appellees contend that the former decree is not res judicata. They cite several cases to the effect that the decree in a former suit is only res judicata of matters necessarily in issue in that suit; that it must appear that the court had jurisdiction to and did adjudicate the precise question that is sought to be litigated in the subsequent suit. The cases relied upon, in that regard, are good law but they have no application to the case at bar. Appellees overlook the fact that the alleged invalidity of amended by-law 42 was one of the causes of action relied upon in the Jenkins case and is the same cause of action set forth in the bill in the case at bar.' The suggestion of other reasons in support of their charge of invalidity does not state a new or different cause of action as we have shown by the several cases above cited, no one of which has been overruled or criticized.

Appellees insist that we cannot consider the answer filed by appellant. They say that under the law the trial court could not consider anything except the averments contained in their verified bill in determining whether a temporary injunction should issue. By their bill they required appellant to file an answer under oath and the answer was verified. The statute provides that no injunction shall be granted in any case without previous notice of the time and place of the application having been given, unless it shall appear, from the bill or affidavit attached thereto, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately and without notice. Cahill’s Ill. St. ch. 69, Tf 3. Why should notice be required in any case if the court is not permitted to consider anything but the bill? We are of the opinion that the purpose of the statute is to give a defendant an opportunity to show, if he can, that an injunction should not issue. It has been held that a defendant may show by plea or answer that the cause of action set out in the bill is res judicata and thus defeat the right of the complainant to a temporary injunction. Dal Pino v. Board of Commissioners, 151 Ill. App. 245.

Dunne v. County of Rock Island, 273 Ill. 53, clearly indicates that if a defendant files an answer to the bill, denying its material averments, he may show, if he can, that an injunction should not issue. It seems to us that if an answer shows that the question sought to be litigated is res judicata it would be highly improper to award a temporary injunction.

Appellees insist that affidavits filed in support of the bill and in support of the answer cannot be considered because they have not been preserved in a certificate of evidence. Their contention in that regard is sound. Our conclusions are based solely upon the bill and answer and the exhibits thereto attached and made parts thereof. Appellees did not except to the answer nor did they see fit to amend their bill so as to show, if they could, that the alleged invalidity of amended by-law 42 was not one of the causes of action relied upon in the Jenkins case. The order awarding a temporary injunction is reversed.

Reversed.


author: Mr. Justice O’Connor

text:
    Herman S. Strauss, as Trustee, Appellee, v. Georgian Building Corporation et al., Defendants. Appeal of 537 Deming Building Corporation, Appellant, from Interlocutory Order Appointing a Receiver.
    Gen. No. 35,056.

      Opinion filed April 1, 1931.
    Rehearing denied April 16, 1931.
    H. J. Rosenberg and Kroon & Kroon, for appellant.
    Pritzker & Pritzker, for appellee; Reuben L. Freeman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the

court.

This is an appeal from an order appointing a receiver in a foreclosure suit. The motion of complainant for the appointment of a receiver was heard upon the verified bill after notice to the defendant and argument before the court.

The bill was filed January 6, 1931, and it is alleged that on April 1, 1926, the owner of certain real estate executed 464 bonds aggregating $265,000 and to secure the payment of the indebtedness evidenced by these bonds executed a trust deed conveying the premises; that certain of the bonds became due October 1, 1928, and others annually thereafter until October 1, 1935, and the last of the bonds, by their terms, became due April 1,1936.

It is also alleged that to further secure the payment of certain of the bonds, a chattel mortgage was given on the furnishings in the apartment building which was covered by the trust deed; that certain of the bonds and interest had been paid and that on October 1, 1930, there was a default in the payment of $8,000 of the principal and $3,006.21 interest, and a further default on that day of $328.90 on account of the nonpayment of income tax as required by the trust deed. It was further alleged “That by reason of the defaults hereinabove set forth . . . and in exercise of the power granted to your Orator under the terms of said Indenture (trust deed), your Orator hereby declares the principal of all the bonds secured by the said Indenture and now outstanding, to be due and payable immediately, together with all interest accrued thereon. . . .

“Your Orator further states that the said property is scant and insufficient security for the lien of said indenture . . . and the bonds and interest coupons secured thereby and that the makers thereof and the guarantors . . . aré insolvent and unable to respond to any deficiency decree that might be entered herein, as your Orator is informed and believes.” And it was further alleged that the rents, issues and profits were specifically pledged as additional security for the payment of the indebtedness and that in the event of foreclosure, “the court before whom the same is pending shall, as a matter of strict right and without regard to the then value of the mortgaged property and without regard to the solvency of the mortgagor appoint a receiver. ’ ’

The record discloses that on January 9, pursuant to notice, the parties appeared before the chancellor and the motion of complainant for receiver came on to be heard. Thereupon the defendants stated they desired the matter postponed so as to enable them to file an answer to the bill, and the court continued the matter for this purpose until the next day when it again came on for hearing but no answer was filed; the court then, after argument, entered an order appointing the receiver. Complainant was required to file a bond in the sum of $2,000 within five days; the bond was filed, and afterwards an additional bond was filed on account of some inaccuracy in the first bond.

January 26, 1931, the principal defendant filed its answer. On January 27, the complainant, upon notice, procured an order to be entered giving complainant leave to amend the bill of complaint. The order quoted the paragraph of the bill first above quoted, and added the following to such paragraph, ‘ ‘ and has caused notice to be served upon 537 Doming Building Corporation, the owner of the title of record, informing it of the said defaults, all in accordance with the terms and conditions of the aforesaid trust deed; a copy of which notice your Orator is ready to produce in open court upon the hearing of this cause.” February 6 the defendant filed its appeal bond which was approved by the clerk of the court.

For the purpose of this appeal we assume that the filing of the additional bond by the complainant, and the order authorizing an amendment to the bill were entirely proper, and we hold they both were.

The defendant contends that the bill, on its face, fails to state a cause of action because there is no allegation to warrant the acceleration of the payment of the entire issue of bonds and therefore the receiver could not properly be appointed. In support of this counsel for defendant refer to a provision of the trust deed which alone gives the right to declare all the bonds due and payable in case of a default. .That provision is as follows: “In case default shall be made in the payment of the principal of or any interest or income tax payments on any of said bonds, . . . and any such default shall continue for a period of thirty (30) days after written notice thereof to the Mortgagor by the Trustee . . . then and in any such case the Trustee, in his discretion ... . may declare the principal of all bonds . . . secured and then outstanding to be due and payable immediately.”

We think the contention must be sustained. While it is true the bill of complaint alleges there were defaults on October 1, 1930, and the record shows the bill was not filed until January 6 following, which is more than 30 days, yet there is no allegation that the written notice mentioned in the trust deed was served on the mortgagor at any time. Nor is there any allegation 'that the default continued for 30 days after such written notice was given. The only allegation of notice is that contained in the amendment to the bill in which it is averred that the complainant caused notice to be served on the defendant of the default “all in accordance with the terms and conditions of the aforesaid trust deed.” We think this allegation is entirely insufficient. Many of the bonds secured by the trust deed would not become due, by their terms, for several years after the bill was filed, and the trust deed provides that if the owner of the bonds desires to accelerate the time of payment and to déclare them all due, he must serve a written notice on the mortgagor. This is a simple matter and the allegation ought to be more specific on this point.

We are also of the opinion that the allegation of the bill “that the property is scant and insufficient security for the lien” ought to be more specific because a court of chancery will not appoint a receiver although the rents and profits are pledged as additional security, where it would be inequitable to do so. If the property were ample security, of course a receiver ought not to be appointed. Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76; Aetna Life Ins. Co. v. Broeker, 166 Ind. 576; Bothman v. Lindstrom, 221 Ill. App. 262; Davis v. Blair, 252 Ill. App. 417; Chicago Title & Trust Co. v. McDowell, 257 Ill. App. 492.

For the reasons stated the order of the superior court appointing a receiver is reversed.

Reversed.

Matohett, P. J., and McSurely, J., concur.