text:
    Citizens Trust & Savings Bank, Appellee, v. Anne Blair et al., Defendants. Appeal of Oliver F. Smith and Catherine C. Smith, Appellants.
    Gen. No. 34,142.
    Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed December 10, 1930.

      Ossian Cameron and Edward H. S. Martin, for appellants.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellee; Ben Rothbaum, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

By this appeal the defendants, Oliver F. Smith and Catherine C. Smith, seek to set aside a decree foreclosing a second mortgage on real estate. The bill of complaint alleges, among other things, that on March 25, 1927, Anne Blair executed her note for $5,000 secured by trust deed of even date therewith on the property in question, subject to a prior past due mortgage of $10,000; that by warranty deed dated March 1, 1929, Anne Blair conveyed the premises to Catherine C. Smith, who has failed to make certain principal and interest payments as provided by said trust deed; that certain other defendants, including the Smiths,. claimed some right, title, interest and lien in and to the premises, whose interest, if any, is subordinate and inferior to the lien of the trust deed sought to be foreclosed. The bill joins the holders of notes secured by a subsequent trust deed, parties defendant, as unknown owners, and prays for a decree of foreclosure.

The joint and several answer of defendants is too voluminous to be summarized in all its detail. It first disclaims knowledge of the several matters alleged in the bill of complaint, neither admitting nor denying the same, but requiring strict proof thereof, and then charges that the complainant has not exhibited its bill in good faith and that it does not come into equity with clean hands. The averments upon which these charges are based relate to two other proceedings; one pending in the circuit court, Smith v. Hughes, in which the defendant Oliver F. Smith seeks an accounting against William Hughes, who is also a defendant herein, and others for the wrongful conversion of several hundred shares of the capital stock of the Citizens Trust & Savings Bank; and the other, in the superior court, Fireman v. Smith, wherein Smith is defending and by his cross-bill against Harry J. Fireman, the bank, Staver, its president, and others, also seeks to recover possession of said bank stock. The answer charges that this foreclosure proceeding was instituted in order to harass and punish Smith for prosecuting and defending said actions and for giving information to the receiver appointed in the superior court suit which was calculated to aid him in endeavoring to compel Staver to disclose the facts concerning the alleged unlawful conversion of said stock. The complainant, its solicitors, Staver, Hughes, Fireman and others, who are either parties or solicitors in the other proceedings, are charged with conspiracy to harass and injure Smith, and with collusion in reference to the prosecution and defense of said suits. Smith’s unliquidated claim, as it appears by his answer, is in the nature of a set-off, and is in no way connected, by agreement or otherwise, with the debt or mortgage under foreclosure. The transactions alleged do not relate to or grow out of the mortgage indebtedness and precede the conveyance of the premises by Anne Blair to Catherine C. Smith and the execution of the note and trust deed by several years. No cross-bill was filed seeking affirmative relief and the answer contains no averment of the insolvency of complainant or other special equities.

Exceptions to the answer on grounds of insufficiency, scandal and impertinence were sustained by the chancellor and leave granted the defendants to file an amended answer. Upon their election to stand by the answer filed, the court entered an order of default against them and referred the cause to a master in chancery for hearing. Proofs were taken before the master, Ms report subsequently approved by the court and a decree of foreclosure entered.

Defendants rely chiefly on the maxim that he who seeks equity must come into court with clean hands, alid contend that the answer properly constituted a defense and should not have been stricken upon the exceptions filed thereto. The limitations on the maxim contehded for have been fully discussed in the decisions of our courts, and are generally to the effect that the conduct complained of must grow out of the particular subject matter of ■the suit, which, in the instant case, would be the mortgage under foreclosure. In the case of Carpenters’ Union v. Citizens Committee, 333 Ill. 225, at page 247, the court said that:

“The maxim, ‘he who comes into equity must do so with clean hands,’ only applies ‘to the particular transaction under consideration, for the court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing. ’ (Bispham’s Principles of Equity, p. 49.) ‘The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation.’ (City of Chicago v. Union Stock Yards Co., 164 Ill. 224.) ”

Story’s Equity Jurisprudence (14th Ed. 1918) Yol. 1, sec. 72, places a like limitation on the doctrine, and two recent decisions of this court are to the same effect. (Messenger Publishing Co. v. Mokstad, 257 Ill. App. 161; Warshawsky & Co. v. Warshawsky & Co., Inc., 257 Ill. App. 571.).

Upon the ground of the insufficiency of the answer, we regard the statute sufficiently controlling. Section 23 of the Chancery Act (Cahill’s Illinois Rev. St. 1929, ch. 22, H 23) provides that:

“Every defendant shall answer fully all the allegations and interrogatories of the complainant, whether an answer on oath is waived or not, except Such as are not required to be answered, by reason of. exceptions, plea or demurrer thereto allowed.”

Defendants failed to comply with the provisions of this act. They do not answer the allegations of the bill with reference to the conveyance of the property to Catherine C. Smith nor as to the amount claimed to be due upon the mortgage, both of which matters were particularly within their own knowledge.

It is stated in 21 Corpus Juris, section 557, at page 480, that:

“When the bill charges an act of defendant or other matter within defendant’s knowledge, he must answer positively. It is insufficient in such case merely to disclaim knowledge or recollection or to deny on information and belief.” And the case of Young v. Jameson, 307 Ill. 71, likewise holds that:
“If the answer was regarded as insufficient in any particular, it should have been attacked by exceptions for insufficiency.”

We are therefore of the opinion that the answer was both insufficient under the provisions of the Chancery Act and the decisions applicable thereto, and scandalous and impertinent in that it averred matters which could not constitute a defense to the bill of complaint.

There is a further reason, however, for which we regard the exceptions as having been properly sustained. It is well recognized in this State that an unliquidated claim cannot be set off against a mortgage indebtedness. In this respect equity follows the law unless some special equitable reason, such as the insolvency of the opposite party, exists. It was so held in the case of Smith v. Billings, 170 Ill. 543, which is strikingly similar to the instant case. We quote at length from the opinion of the court:

“The contention of appellant in the case at bar seems to be, — first, that because the suit to foreclose was in equity, and demands of appellant against appellee enforceable in equity, though in nowise connected, by agreement or otherwise, with the debt or the mortgage, could by answer and cross-bill be set off against the mortgage debt without showing the insolvency of appellee or other special equitable grounds for allowing such a set-off; and second, that sufficient special equity appeared to authorize the set-off when it appeared that if the set-off were not allowed a foreclosure and sale of appellant’s homestead would follow. Neither of these positions is tenable. A set-off will not be allowed in equity where it would not at law, unless some special equity be shown. In the next place, the mortgage provided for foreclosure and sale of the property if the mortgage debt should not be paid, and the setting up in the cross-bill that such a result would follow in case the set-off should not be allowed would not, like the allegation of the insolvency or nonresidence of the opposite party, show any special equitable reason why equity should entertain the plea of set-off where it would not be entertained at law. In case of insolvency the cross-demand would be lost if the owner of it were not allowed to set it off against the demands of the insolvent against him; but in this case, so far as the pleadings show, any judgment or decree which the cross claimant may recover against his adversary can be readily collected, and no special equitable ground for allowing the set-off is shown, by alleging that the result contemplated in the contract will follow a default in payment of the mortgage debt.”

In the case of Duncan Lumber Co. v. Leonard Lumber Co., 332 Ill. 104, the court goes still further in holding that section 47 of the Practice Act, Cahill’s St. ch. 110, H 47, does not authorize unliquidated damages arising out of a contract not connected with the subject matter of the plaintiff’s suit, notwithstanding the nonresidence of the plaintiff; and in Benedict v. Bear, 252 Ill. App. 439, this court in a recent decision adopts a like construction of the Practice Act. In the absence of any special equitable ground, such as the insolvency of the complainant, we are of the opinion that Smith’s unliquidated claim, however meritorious, could not be set off against the mortgage debt.

The remaining contention of defendants is that the complainant dismissed its bill as to the unknown owners. The bill referred to a trust deed executed subsequent to the one under foreclosure and made the holders of notes secured thereby parties defendant as unknown owners.

No proof was offered to support the allegations of the bill as to the interest of the unknown owners and no finding was made by the master with reference thereto. Prior to the entry of the decree, however, the complainant, in accordance with the approved practice in chancery, dismissed the unknown owners from the proceeding and the decree which was entered made no findings with reference to their interest. The cases of Pearce v. Pearce, 77 Ill. 284, and Richardson v. Hadsall, 106 Ill. 476, are to the effect that this procedure may properly be followed, and accordingly we find that the decree is not erroneous for this reason.

There being no other error assigned, the decree will be affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Thomas Mitchell, Appellee, v. City of Chicago, Appellant.
    Gen. No. 33,853.
    Heard in the third division of this court for the first district at the October term, 1929.
    Opinion filed December 10, 1930.
    Samuel A. Ettelson, Corporation Counsel and Frau oís J. Vurpillat, Assistant Corporation Counsel, for appellant.
    John J. Sonsteby and Joseph J. Berzin, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The claim of the plaintiff is for 5385% hours overtime services rendered as a laborer for the defendant, the City of Chicago, from the first day of August, 1923, to the first day of September, 1927, when the plaintiff was discharged, which overtime is over and above the eight hours constituting a day’s work, and the total of said escess time is to be paid for at 1% times the daily wage earned; that during the time he was employed there was in full force apd effect an ordinance of the City of Chicago, sections 3276 and 3277, entitled, “Hours of Labor,” which provides that eight hours of labor between eight o’clock a. m. and five o’clock p. m. shall be and constitute a day’s work for all employees performing manual labor for the City. The ordinance in part is as follows:

“Provided, however, that in all cases of necessity or emergency, superintendents, foremen or others in authority are hereby authorized to work their employees such number of hours as such necessity or emergency may require; but for all labor performed in excess of eight-hours in any one day, such laborer or employee shall be entitled to and shall receive pay at the rate of time and one-half for all such labor performed, except in those employments where there is an established scale of wages and hours which is usually and customarily paid for such excess time by employers generally within the city for like services, in which event such labor in excess of eight hours in one day shall be paid for according to the wage scale, hours and conditions so established.”

This case was tried in the municipal court, and from the evidence heard in support of plaintiff’s amended statement of claim and defendant’s affidavit of merits, the trial court found the issues for the plaintiff and entered judgment for the sum of $8,475.39 and costs, from which judgment the defendant appealed to this court.

The plaintiff was employed by the defendant as a laborer and assigned to act as watchman for the defendant at the 45th Ward City Yard; his hours of service were from 4 o’clock in the afternoon to 6 o’clock in the morning, when the relief man came and he was relieved from further duty. He continued to work seven days each week from the time he entered the service on August 1, 1923, until September 1, 1927, excepting the time he was allowed for a vacation in each year.

There is some conflict as to the kind of service rendered by the plaintiff in addition to his work as watchman, but the facts are not controverted that he received his pay for the services rendered and accepted the amount allowed and finally when he retired from the City service he received and accepted the final payment from the Ci-ty. It does not appear from the record that he objected at any time that the amount allowed and paid to him by the City was not correct.

It appears from the evidence that the plaintiff talked with a Mr. Stanton, who was in charge of the Yard in 1925; that Stanton told the plaintiff that the union was going to try to get the eight-hour system. The only other evidence on that point is the eight-hour ordinance. It further appears from the evidence in this case that the plaintiff was satisfied to do the work from 4 o’clock in the afternoon until 6 o’clock the next morning. The fact that the plaintiff worked more than eight hours a day would not entitle him to recover extra compensation under said ordinance, in the absence of an agreement. The facts in this case clearly indicate that it was not contemplated by the parties that the plaintiff was to be paid for time in excess of eight hours of work. The plaintiff voluntarily worked more than eight hours a day, accepted the pay, and at no time during the four years or more of service, claimed pay, or made demand for pay, for extra time. If he did not want to work more than eight hours he should have refused, or, as a condition, should have insisted that if he did so he should be paid for the extra time. It also appears from the evidence that the plaintiff was satisfied'with the work he was doing, and, so far as the record discloses, never objected to, nor claimed pay for overtime services, until he started a suit against the City of Chicago almost a year after he was discharged.

In the case of Sanitary District of Chicago v. Burke, 88 Ill. App. 196, in passing upon the appellant’s claim for extra compensation for services in excess of eight hours, which constitute a day’s work, and the application of the eight hours a day statute to the facts, the court said:

“But aside from the section referred to, the mere fact that appellee worked more than eight hours a day would not entitle him to recover extra compensation under said act, in the absence of an agreement therefor. A laborer whose employment comes within the terms of the statute may refuse to work more than eight hours a day at his option, or insist as a condition precedent, if he does so work, that he shall be paid for the extra time. But the mere fact that he has voluntarily worked more than eight hours a day does not of itself authorize a demand for extra compensation under the act in question, unless it should, also appear that extra compensation was agreed upon, or was reasonably within the contemplation of the parties at the time. Brooks v. Cotton, 48 N. H. 50; Luske v. Hotchkiss, 37 Conn. 219. In this case it is clear that extra compensation was not contemplated by either party.”

In the case of County of Christian v. Merrigan, 191 Ill. 484, the court says:

“Moreover, if the eight-hour statute applied, appellee performed the services required of him each day without any agreement (even if there could be such agreement in such a case) that he should be paid for extra time. In the absence of such an agreement or contract no recovery could be had for extra time employed over eight hours during the same day. (10 Am. & Eng. Ency. of Law, — 2d ed. — 463; Luske v. Hotchkiss, 37 Conn. 219.) We are of the opinion that the per diem required by the statute to be paid for the time actually employed was only for one day in each twenty-four hours.”

It is indeed strange that the plaintiff remained silent during the years of service and then only after he wa's discharged did he assert a claim for extra compensation. That fact creates a doubt as to the reasonableness of his claim. He should have asserted his claim for compensation at the first opportunity and not have waited, as he did in this case. There was no need of secrecy in postponing his claim for the compensation.

For the reasons expressed in this opinion, it was error for the trial court to enter judgment for the sum of $8,475.39 in favor of the plaintiff and against the defendant. The judgment of the municipal court is reversed, with a finding* of fact.

Judgment reversed with a finding of fact.

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

Finding of fact: We find that there was no agreement, express or implied, between the parties for the extra compensation sued for. The clerk will enter the finding.as a part of the judgment.


text:
    Joseph Mazer Company, Inc., Appellee, v. Blauer-Goldstone Company, Appellant.
    Gen. No. 33,912.

      Heard in the third division of this court for the first district at the October term, 1929.
    Opinion filed December 10, 1930.
    Krinsky, Levitan & Glassner, for appellant.
    Blum & Jacobson, for appellee; Reuben S. Flacks, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The defendant has appealed from a judgment entered in the municipal court of the City of Chicago, in favor of the plaintiff for the sum of $600, being only a part of the plaintiff’s claim. The plaintiff also seeks a reversal of this judgment on cross error filed in this court, and asks that judgment be entered for the whole of the plaintiff’s claim, which amounts to $1,200.

This case was tried by the court after a jury was waived, and from the evidence it appears that the action is to recover the principal amount of two promissory notes executed by the defendant, each being for the sum- of $600, dated January 15, 1927, payable to the order of Kansteiner, Inc., one due April 20, 1927, and the other due May 31,1927, both of said notes indorsed by the said payee and delivered to the plaintiff.

The defendant contends that each of said notes was delivered to Kansteiner, Inc., without consideration and as an accommodation; that the defendant is a corporation organized under the laws of the State of Illinois, and under its charter is not authorized to execute or issue accommodation paper, and that the plaintiff was not a bona fide holder for value before maturity of said notes.

The plaintiff, on the other hand, contends, in support of its cross error, that the plaintiff was a bona fide holder in due course of the note upon which judgment was entered; that neither of the two notes, the subject of this litigation, was accommodation paper, but that both were, in fact, given for a valuable consideration, and that the plaintiff is entitled, as a matter of law, to a judgment for the sum of $1,200.

- It appears from the record that the plaintiff received the two notes from Kansteiner, Inc. during the month of May, 1927, for money due in the form of an open account amounting to the sum of $2,967.87; that these notes do not appear credited upon the Kansteiner, Inc. account, but that the account is to be credited upon the payment of the notes.

It is one of the contentions of the defendant that no credit was given to Kansteiner, Inc. upon its account with the plaintiff, nor was any credit intended to be given until the notes were in fact, paid, and that the facts did not justify the entry of a judgment for the amount due on the note that matured May 31, 1927. The answer to this contention is obvious. The evidence of the plaintiff is to the effect that the note was accepted in liquidation of the account, in part, when the money is received in payment of the note.

Under the Negotiable Instruments Act, an antecedent or pre-existing claim constitutes value, and in this case the note was taken by the plaintiff to secure the payment of its account. Cahill’s St. ch. 98, Tf 45. If the plaintiff was to credit the account of Kansteiner, Inc. when the note was, in fact, paid, reasonable inference necessarily would follow that the plaintiff was to forbear and not press, the payment of its debt, and the acceptance of the note was collateral security for the payment of this account.

It is admitted by the defendant that the rule is that the mere taking of negotiable paper as security for the payment of a debt establishes a sufficient consideration to make the holder a holder for value, and this rule is a part of the Negotiable Instruments Act of this State.

The law announced in the case of Manning v. McClure, 36 Ill. 490, is a complete answer to this contention of the defendant, wherein the Supreme Court in its opinion says:

“It is admitted, in all the cases, that if the indorsee, at the time of taking the note as collateral security for a pre-existing debt, gives a new consideration, as, for example, if he makes a valid agreement to give further time, he then takes it free from latent equities. But it is urged that in the absence of any such new consideration, or any such agreement, the indorsee is in no worse condition than he would have been if he had not received the note. . . . Now, the question is one of presumption, and that presumption must be drawn from the general experience of society. . . . We have no hesitation in saying, that the assumption that time is not in fact given, because it is not expressly agreed to be given, and that therefore the indorsee is not placed in a worse position by letting in the latent equities than he would have occupied if he had not received the note, is at variance with the general experience of all men whose business makes them cognizant of affairs of this character. What inducement has the debtor to part with his negotiable paper except the expectation of further forbearance? . . . And when the debtor has turned out his collaterals, without taking an express agreement to forbear, does not good faith, nevertheless, require forbearance, and is it not generally given among all right-minded men ? Having received the securities, the creditor believes himself safe.”

The law as thus established has been followed in the case of Elgin Nat. Bank v. Goecke, 295 Ill. 403, in which the Supreme Court uses this language:

“It is the well established law in this jurisdiction that an indorsee of a negotiable note who has taken it, before its maturity, as collateral security for a preexisting debt and without any express agreement is deemed a holder for a valuable consideration, and that he holds it free from latent defenses on the part of the maker. . . . This question was thoroughly gone into by this court in the case of Manning v. McClure, 36 Ill. 490, and some of the cases holding the opposite view are therein cited and discussed. The rule as above announced was the result of due deliberation and consideration by this court, and it has been a rule now for more than fifty years and has been frequently re-affirmed in other cases. (Nix v. National Bank of Bloomington, 91 Ill. 20; Zoilman v. Jackson Trust and Savings Bank, 238 Ill. 290.) Besides, the legislature has by section 25 of our Negotiable Instruments Act declared this rule to be the law of this State by statutory enactment.”

The law is well settled that it is an ultra vires act for a corporation to issue accommodation paper, and no recovery can be had by the plaintiff unless the plaintiff is a holder in due course and there is a consideration moving from the plaintiff, and without notice that the note reduced to judgment is accommodation paper. Section 52 of the Negotiable Instruments Act, Cahill’s St. ch. 98, 72, defines “holder in due course” as one who has taken the instrument before maturity and upon the condition, among others, that he took it in good faith and for value, and with no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

The evidence of Mr. Mazer, an officer of the plaintiff company, is to the effect that he received the note from Kansteiner before maturity, but denies that he knew the notes sued on were accommodation paper and issued without consideration, or subject to any defense, until after the receipt of the notes by the plaintiff, which evidence is contradicted by Mr. G-oldstone, one of the officers of the defendant, who testified, in substance, that he told Mazer before the plaintiff received the notes in question that they were accommodation paper and that the defendant did not intend to pay the notes outstanding.

The credibility and weight of the evidence is for the trial court, and unless the facts are clear that the finding of the court is contrary to the weight of the evidence and the law, this court will not interfere.

The remaining contention to be considered is that of the plaintiff that the trial court erred in not finding for the whole of the plaintiff’s claim for the amount due on the notes in question. The note maturing April 20, 1927, was received after maturity, and notwithstanding the plaintiff had no knowledge that this note was an accommodation and issued without consideration to Kansteiner, Inc., still section 58 of the Negotiable Instruments Act, Cahill’s St. eh. 98, f 78, which provides that in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable, answers the contention of the plaintiff. Kansteiner, Inc. was not a holder in due course, and the receipt of the notes by the plaintiff after maturity makes the claim of this plaintiff subject to the defenses interposed by the defendant, and it was not error to refuse to enter judgment for the amount due on this note.

After a consideration of the evidence in the record and the contentions of counsel in this case, we find no error that would warrant a reversal.

The judgment of the trial court is, therefore, affirmed.

Affirmed.

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


author: Mr. Presiding Justice Scanlan

text:
    The Covenant Club of Chicago, Appellant, v. John R. Thompson, Jr. et al., Appellees.
    Gen. No. 34,114.
    Heard in the second division of this court for the first district at the February term, 1930.
    Opinion filed December 16, 1930.

      Joseph F. Grossman, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The Covenant Club of Chicago, a corporation, sued John R. Thompson, Jr. et al., executors of the estate of John R. Thompson, deceased, in an action on the case. Defendants’ general demurrer to the declaration was sustained, and plaintiff electing to stand by its declaration judgment was entered against it for costs. This appeal followed.

Plaintiff originally sued John R. Thompson et al., and upon a trial before the court, with a jury, at the conclusion of the evidence for plaintiff the trial court, on motion, instructed the jury to find all of the defendants not guilty. Judgment was entered on the verdict and an appeal to this court followed. We held (see Covenant Club v. Thompson, 247 Ill. App. 122) that an action for damages by a landowner against the landlord (Thompson) and tenants of adjoining property, because of the interference with the work of constructing a building on plaintiff’s land and the extra expense incident thereto as the result of the flow of sewage and water from adjoining premises, is not an action to recover damages to real or personal property, and that the death of the landlord abated the cause of action as to him, but that it survived as to the other defendants. After remandment plaintiff filed a declaration in which the sole defendants named were the executors of the estate of Thompson. This declaration consists of four counts. The first alleges (inter alia) that plaintiff was lawfully possessed of a certain parcel of land (describing same) and that Thompson was then possessed of certain lots or parcels of land (describing same), all of which adjoin the land of plaintiff on the west and south sides thereof, and that said land of Thompson was then improved with buildings and appurtenances which were then and there under his control and it became and was his duty not to permit the waste water and sewage from his premises to overflow or be diverted to and cast upon plaintiff’s land; that,on July 1, 1923, and for a long time thereafter plaintiff was using its land and was erecting a building thereon for its use and occupancy, and was digging wells upon its land for caissons as a foundation for said building, and was excavating its land for the basement of said building, of which Thompson had knowdedge or notice; that he then and there wrongfully and carelessly caused or permitted the sewage and waste water from his premises to overflow and to be diverted to and cast upon plaintiff’s land and into the caisson wells and excavations upon said land, and that plaintiff was thereby obliged to and did lay out and expend large sums of money for pumping and draining said sewage and waste water from the land and caisson wells and excavations upon plaintiff’s land, to the damage of plaintiff, etc. The second count is identical wdth the first save that it alleges the duty of Thompson to provide means for drainage of the sewage and waste water from his premises, and the violation of his duty in this regard by failing and neglecting to provide such means, and that by reason thereof the sewage and waste water overflowed and ivas diverted to and cast upon plaintiff’s land, to the damage, etc. The third count is identical Avith the first save that it charges that the buildings and appurtenances of Thompson were equipped Avith an artificial system of drains for sewage and waste water, and that he was then in control of the artificial system of drains and it became and was his duty to keep and maintain same in such condition that the sewage and waste water, from his premises would not run or overflow or be diverted to and east upon plaintiff’s land; that he wrongfully and carelessly permitted the artificial system of drains to be and remain in such condition that the sewage and waste water from his premises ran and overflowed and was diverted to and cast upon plaintiff ’s land, to the damage, etc. The fourth count charges that it was the duty of Thompson to keep and maintain his artificial system of drains in good working condition and repair, and that he failed and neglected to keep and maintain same in good working condition and repair, and that the same was permitted to be and remain broken, cracked, disconnected, obstructed and clogged so that the sewage and waste water from his premises leaked and flowed and backed out of said system of drains and ran and overflowed and was diverted to and cast upon plaintiff’s land, to the damage, etc.

Plaintiff contends that “this action is for a temporary, physical, visible injury to real property caused by a continuous and repeated nuisance. The damages, as they accrue, ‘run with the land’ and are not personal,” and that “such an action survives by the common law” and “by virtue of sec. 123 of the Administration Act,” Cahill’s St. ch. 3, If 125. Defendants contend that ‘ ‘ this is not an action to recover damages for an injury to real or personal property, but plaintiff seeks damages for interfering-with the progress of his building” and that “the same question was decided by this court in favor of our contention in the case of The Covenant Club of Chicago v. John R. Thompson et al., 247 Ill. App. 122, the only difference between that case and this being that in this case plaintiff has omitted one item of damages which he sought to recover in the former case.” In our former decision we said: “In its declaration the plaintiff does not seek to recover damages because of any injury to the realty. It seeks compensation for the delay in the work of construction as the result of the Sewage and waste water that flowed upon its land and the expense incident thereto. The theory of fact of the plaintiff upon the trial was that the water and sewage leaked out of a broken, cracked, disconnected, obstructed and clogged system of drains, and flowed upon the land of plaintiff and delayed the work of construction, and caused the plaintiff to be put to extra expense. No evidence was introduced tending to show damages to the plaintiff because of any injury to the realty. In the brief of the plaintiff filed in this court before the death of John R. Thompson, counsel plainly takes the position that the suit is one for damages because of the interference with the work of construction of the building and the extra expense incident thereto. It is very clear that this is not an action to recover damages for injury to real property.” A different situation now confronts us. The propriety of the action of the trial court in the instant case in sustaining a general demurrer must be determined solely from an inspection of the new declaration. The particular words in the former declaration that lead us to the conclusion that plaintiff, in its declaration, sought damages only for the delay in the work of the construction of the building, have been omitted from the present declaration and plaintiff does not now seek compensation for the delay in the work of construction, but damages “for a temporary, physical, visible injury to real property caused by a continuous and repeated nuisance.” The allegation in the instant declaration that plaintiff, at the time that the sewage and waste water flowed upon its land, was erecting a building upon the land, does not change the nature of the action.

Section 123 of the Administration Act, Cahill’s St. ch. 3, H 125, provides that “in addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, . . . actions to recover damages for an injury to real or personal property ...” But defendants contend that as the declaration fails to allege that defendant created the alleged nuisance it was absolutely necessary to allege that plaintiff gave defendant notice to abate the same. We find no merit in this contention. Undoubtedly there are nuisance cases in which it has been held that a notice to abate is necessary. As stated in Martin v. Chicago, R. I. & P. Ry. Co., 81 Kan. 344, 105 Pac. 451, 453 (cited by defendants): “The reason given for the rule that notice and a request to abate must be given to one who becomes the owner of a nuisance which was constructed by another is that such a person may be ignorant of the character of the thing denominated a nuisance, and that a notice and request to abate would place him upon the same ground as the original wrongdoer. If he is not ignorant, the reason for giving notice fails and the rule disappears. In this case the evidence shows that the knowledge of the defendant of the nuisance in question was equal to or better than that of the plaintiff. . . . Notice of and a request to abate the nuisance was unnecessary in this case.” Groff v. Ankenbrandt, 124 Ill. 51 (cited by defendants), like several other cases cited by defendants, was one in which the defendant was charged with obstructing the natural flow of a stream or other natural body of water and thereby diverting it upon the lands of the plaintiff. It was there held that “where a party comes into possession of land, as grantee or lessee, with an existing nuisance upon such land, and he merely permits the nuisance to remain or continue, he can not be held liable in an action for damages, until he has been first notified or requested to remove the nuisance.” The court further held that it must be presumed from the declaration that the defendant. did not erect or place the levee or embankment and that because the defendant came into possession of the land, as grantee or lessee, with an existing nuisance upon the land, and he merely permitted it to remain or continue, it was the duty of the plaintiff to serve notice on the defendant of the nuisance and a request to remove it, before any action could be brought; that “a plaintiff ought not to rest in silence and presently surprise an unsuspecting purchaser by an action for damages, but should be presumed to acquiesce until he requests a removal of the nuisance,” but the court plainly indicated that even in a case like the one before it the defendant would be liable, without any request or notice to him to remove the same, if there had been “some active participation in the continuance of the nuisance, or some positive act evidencing its adoption. ’ ’ Plaintiff contends, and with force, that the rule announced in Groff v. Ankenbrandt has no application to a ease like the one stated in the instant declaration. Defendants also cite Fitzgerald v. Goldstein, 107 N. Y. S. 614. In that case the sufficiency of the declaration was not involved and the court did not hold that notice to abate the nuisance was necessary before the plaintiff could sue. It did hold that under the evidence the defects in the building in question were concealed and were suph as would not have become known to the defendant through the exercise of ordinary care, and that plaintiff had failed utterly to prove negligence on the part of the defendant; that “the rule is well established that, in order to charge an owmer with negligence in failing to make repairs, he must have notice, either express or implied, of the existence of the alleged defective conditions and a reasonable time after such notice to remedy the same.” In Neuman v. Steuer, 119 N. Y. S. 168 (also cited by defendants), the sufficiency of the declaration was not involved. The decision of the court turned upon the evidence. The opinion states that the defendant did not create the nuisance and he had no actual notice of its existence; “these being the facts, to establish the appellant’s liability it was necessary to show that, by the exercise of reasonable care, he could have discovered and abated the nuisance. This was not shown.” These last two cases do not support the contention of defendants that it was necessary for plaintiff to allege in the declaration that it had given defendants notice to abate the nuisance.

Bach count of the instant declaration charges that the buildings and appurtenances from which the overflow occurred were then and there under the control of Thompson. The first count alleges that Thompson “wrongfully and carelessly ccmsecl or permitted the sewage and waste water from his said premises to overflow and to be diverted to and cast upon the land of the plaintiff.” The third count alleges that he “wrongfully and carelessly permitted the artificial system of drains upon the premises to be and remain in such condition that the sewage and waste water from his said premises ran and overflowed and was diverted to and cast upon the land of the plaintiff.” The fourth count alleges that he “failed and neglected to keep and maintain same in good working condition and repair, and same was permitted to be and remain broken, cracked, disconnected, obstructed and clogged so that the sewage and waste water from his said premises leaked and flowed and backed out of said system of drains and ran and overflowed and was diverted to and cast upon the land of the plaintiff.” “Every definition of . . . ‘permit’ includes knowledge of what is to be done under the sufferance and permission, and intention that what is done is what is to be done.” (Gregory v. United States, 17 Blatch. 325, 331.) “The words, ‘was permitted to remain out of repair’ . . . denote a decided assent. From this definition it is plain that if the city assented it did so from a knowledge of the condition of the walk, — the assent implied knowledge.’’ (City of Chicago v. Stearns, 105 Ill. 554, 558.) “While it is true that the first count had no charge, of knowledge on the part of appellant, or that it might have acquired knowledge by the exercise of reasonable care, of the condition of the insulator, yet it does charge that appellant negligently permitted the insulator to be upon the bracket in a broken condition. While this count might have properly been a subject of special demurrer for the defect mentioned, yet the word ‘permitted’ implies notice and is sufficient to sustain the count after verdict. ” (Diehl v. E. St. L. L. & P. Co., 188 Ill. App. 286, 290. Italics ours.) Therefore, if the rule announced in Groff v. Ankenbrandt, supra, could have any application to a case like the instant one, it would avail defendants nothing, for the reason that there are sufficient allegations in the declaration from which it might be implied that defendants, with knowledge of the nuisance, permitted it to work injury to plaintiff’s real property. As was said in City of Chicago v. Stearns, supra, “permitted” denotes a decided assent. Under such a state of facts, as was held in Martin v. Chicago, R. I. & P. Ry. Co., supra, the reason for giving notice fails and the rule disappears.

Moreover, the first count charges that Thompson wrongfully and carelessly caused or permitted the sewage and waste water from his premises to overflow, etc. Defendants do not seriously contend that the charge in the declaration that Thompson caused the sewage and waste water to flow, etc., would not be sufficient if the word “caused” were not followed by the words “or permitted,” but they contend that the allegations “caused or permitted” are in the alternative and that as the allegation “or permitted” is not sufficient to constitute a cause of action it neutralizes the allegation “caused” and a demurrer will lie. If we are correct in our ruling as to the full meaning and effect of the words “or permitted” there is, of course, no merit in the instant contention. Even the authorities cited by defendants concede that if the complainant alleges, in the alternative, two statements of facts, each of which would be legally sufficient to constitute a cause of action, a demurrer will not lie. We do not wish to be understood as approving the rule that defendants seek to enforce. They concede that courts have held that allegations in the alternative are merely defects in form, and in the instant case defendants saw fit to file only a general demurrer. In case actions our courts have always allowed two charges of negligence in a count, and “the rule is that proof of either one of the charges is sufficient to warrant a recovery, provided the negligence is shown to be the proximate cause of the injury.” (See Devine v. Delano, 272 Ill. 166, 174.)

After a careful consideration of the several questions involved in the instant appeal, we have reached the conclusion that the declaration was not vulnerable to a general demurrer and that the trial court erred in sustaining the general demurrer to plaintiff’s decíaration. The judgment of the circuit court of Cook county is reversed and the cause is remanded with directions to the trial court to overrule the general demurrer and to rule defendants to plead to the declaration.

Reversed and remanded loith directions.

G-ridley and Barnes, JJ., concur.


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    Esther R. Costello, Appellee, v. Federal Life Insurance Company, Appellant.
    Gen. No. 34,227.

      Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed December 16, 1930.
    Rehearing denied December 30, 1930.
    Loucks, Eckert & Peterson, for appellant.
    Rathje, Wesemann, Hinckley & Barnard, for appellee; John C. Tucker, of counsel,
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment of the superior court of Cook county for $1,170 entered on a verdict for that amount in an action of trespass on the case upon promises brought by plaintiff, Esther R. Costello, against defendant, Federal Life Insurance Company, a corporation, on an accident insurance policy issued by defendant, in which William F. Powell was the insured and plaintiff was the beneficiary.

The policy provided that defendant would pay plaintiff $1,000 if within twelve months from the date of the issuance of the same (April 2, 1925) said Powell should suffer death resulting within sixty days from the date of accident “directly and independently of all other causes from bodily injuries sustained through external, violent and accidental means ... by being struck or run over while in or upon a public highway by any public or private vehicle.” The declaration alleged (inter alia) that on April .30, 1926, Powell “came to his death as a result within sixty days from the date of accident, and directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means, by being struck” by a public street car operated on North Clark street, a public highway in the City of Chicago, at or near the intersection thereof with Berwyn avenue. Defendant filed a plea of the general issue and also an affidavit of merits in which it was stated that Powell was not struck by a street car, that on the occasion in question he attempted to board a street car that was then in motion and that he did not get a hold or footing that enabled him to board or remain thereon, by reason whereof he fell and sustained injuries that resulted in his death.

Before the trial defendant moved for leave to file a special plea and an amended affidavit of merits setting up the defense of res adjudicaba. This motion was heard and denied by the trial court. In its brief this point is arg-ued, but upon the oral argument it was waived. It is plain that there is no merit in this point.

Defendant contends that the policy provides that loss of life must be sustained “by being struck . . . while in or upon a public highway by any public or private vehicle,” and that it was necessary for plaintiff to show that the assured lost his life by being struck by a street car and that plaintiff failed to make such proof. This theory of law may be conceded, and it appears that the trial court followed it in the instructions' to the jury. But the policy does not provide that any particular part of the vehicle must strike the assured or how it must strike him, or what part of him must be struck, and yet defendant argues that because the front end of the car had-passed and the assured was attempting to board it at the rear end it would not be possible for the car to strike the assured within the meaning of the policy. This contention of defendant cannot be sustained, especially in view of the rule of law that policies of insurance should be liberally construed in favor of the assured so as not to defeat without a plain necessity his claim for indemnity which, in taking the insurance, it was his object to secure. The jury by its verdict found that the assured was struck by the car, and we are unable to say that under all the facts and circumstances bearing upon the question this finding was not warranted by the evidence. That the assured attempted to board the car and that he sustained a skull fracture which caused his death is not disputed. The jury might reasonably have fonnd from facts and circumstances in the case that as the assured attempted to board the car, his head or some part of his body was struck by some part of the car, and that he then fell to the pavement. If the skull fracture was caused by the impact with the pavement, that fact would not release defendant from liability. In connection with the instant contention it must be remembered that plaintiff had the right to prove that the assured was struck by the car, by direct and circumstantial evidence.

Defendant contends that “there was no injury by accidental means.” In support of this contention defendant first argues that the assured voluntarily and intentionally attempted to board a street car while it was moving fifteen miles an hour and that under the circumstances the result of the attempt could have been reasonably anticipated by the assured. That the assured was careless or negligent is no defense. (Fidelity & Casualty Co. of New York v. Morrison, 129 Ill. App. 360, and cases cited therein; Heller v. International Indemnity Co., 238 Ill. App. 361, 366.) Defendant next argues, in support of the instant contention, that the injury and consequent death happened by means the assured voluntarily and intentionally employed and that “he sustained the fatal injury solely because in using the means he employed he did not succeed in boarding the car,” and that therefore “it cannot be said that death resulted from accidental means if what, it is submitted, is the proper test, is applied, namely: was the injury caused through means which were unintended — accidental?” In support of this rather strained and involved argument defendant cites Hutton v. States Accident Ins. Co., 267 Ill. 267, and Cory v. Woodmen Accident Co., 333 Ill. 175. In' the first case cited it appears that the assured approached a man who was sitting in a restaurant and deliberately started a fight with him by striking him on the head and that the assured in so striking the man hoped to hit him so hard that “he wouldn’t get up.” The man assaulted, in defending himself, struck or pushed the assured, with the result that the latter’s leg was broken. The Supreme Court held that the assured, under the circumstances of that case, was not injured through accidental means. In the second case the court held that death from shooting is not accidental within the meaning of an insurance policy, where the insured was shot while he was the aggressor in a fight and made advances toward his adversary after the latter had warned him that he would tie shot if he did not keep away, as under such circumstances it could not tie said that the shooting was unforeseen, and the result flowing therefrom could not tie held to be due to an accidental cause. We are unable to see how these two cases have any possible bearing upon the instant one. The law bearing on the question as to what constitutes an accident within the terms of a policy insuring against death caused by “external, violent and accidental means ’ ’ is fully considered and determined in the late case of Christ v. Pacific Mutual Ins. Co., 312 Ill. 525. In our opinion that case disposes of the instant contention, and adversely to defendant. (See also Fidelity & Casualty Co. of New York v. Morrison, supra.) Under the facts of the instant case it seems quite clear to us that the assured came to his death by accidental means within the terms of the policy in question.

Defendant contends that the court erred in refusing to allow the motorman to testify that the car was going at the rate of fifteen miles an hour at the time that the assured attempted to board it. It is a sufficient answer to this contention 'to say that the evidence for plaintiff was that at the time in question the car was going fifteen miles an hour. Moreover, the offer was plainly an attempt to show that the assured was guilty of negligence at the time he attempted to board the car. Defendant next contends that the court erred in striking from the record the testimony of the motorman that he smelled liquor on the assured’s breath right after the accident, The purpose of the evidence was to show that the assured was guilty of negligence, and the trial court did not err in striking it.

Defendant complains that the court erred in giving the following instruction to the jury on behalf of plaintiff:

‘1 The court instructs the jury that if they find from a preponderance of the evidence in this case that the deceased, William F. Powell, while on a public highway was struck by the street car in this case, and by reason thereof was thrown to the street and died of the injuries received thereby, then it is immaterial whether said injuries were caused by the impact with the street car or with the street, and you must find the issues for the plaintiff.”

The contention of defendant is that there is no limitation in this instruction that the striking must be accidental. On behalf of defendant the court gave to the jury the following instructions:

“1. Before the plaintiff can recover in this case she must prove by a preponderance of the evidence, which means the greater weight of the evidence, that William F. Powell came to his death accidentally; that his death resulted directly and independently of all other causes from bodily, injuries sustained through external, violent and accidental means; and that the loss of his life was sustained as a result of being struck by a vehicle while he was in or upon a public highway.
“2. You are instructed that the plaintiff is required to prove by a preponderance of the evidence, which means the greater weight of the evidence, that the death of William F. Powell resulted directly and independently of all other causes from bodily injuries sustained by being accidentally struck by a vehicle while he was in or upon a public highway; and unless you find by a preponderance of the evidence that William F. Powell’s death resulted directly and independently .of all other causes from bodily injuries sustained by being accidentally struck by a vehicle, then your verdict must be for the defendant.
“3. You are instructed that the term ‘struck’ or ‘striking,’ as used in these instructions, means a contact by Powell with a vehicle, which contact was unintentional or involuntary on his part.”

The court also instructed the jury that the instructions should be regarded as a connected series and should be so regarded and treated by the jury and that -they should apply them to the facts as a whole and not detach or separate any one instruction from any or either of the others. The instruction that defendant complains of .is correct as far as it goes and it does not lay down a rule directly in conflict with that stated in the three instructions given for defendant. The instructions for defendant supplement plaintiff’s instruction, and taken together they are all in harmony and the jury could not possibly have been misled. .Moreover, there are no facts in the case upon which defendant can base a claim that the death of the assured was not caused by accidental means.

Defendant claims that the court erred in giving the following instruction at the instance of plaintiff:

“The Court instructs the jury that although as a matter of law the burden of proof is upon the plaintiff, and she is required to prove her case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon plaintiff’s case preponderates in her favor, although but slightly, it will be sufficient for .the jury to find the issues in her favor, and to return a verdict against the defendant.”

It may be conceded that this instruction has. been criticized in a number of cases. (See Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 172.) In that case-it was held that the trial court erred in giving a like instruction, but it was not held that the giving of the instruction in and of itself constituted reversible error. The court stated several times that the case was close upon the facts, and reversed the judgment because of several errors committed by the trial court. The instant case is not close upon the facts.

Defendant tendered the following instruction:

“9. If you find from the evidence that William F. Powell intentionally and voluntarily attempted to board a car, and that as a result of his effort he fell, and in falling sustained fatal injuries, but not in consequence of being" struck by such car, then your verdict must be for the defendant. ’ ’

The court of its own motion modified this instruction and gave it to the jury in the following form:

“If you find from the evidence that William F. Powell intentionally and voluntarily attempted to board a car, and that as a result of his effort he fell and in falling sustained fatal injuries, and if you further find from the evidence that said Powell was not struck by the car, then your verdict must be for the defendant. ’ ’

Defendant contends that the court erred in refusing to give the instruction as offered and in giving to the jury the instruction as modified. We find no merit in this contention.

Defendant contends that the court erred in not giving certain instructions offered by defendant “which were to the effect that if Powell intentionally and voluntarily attempted to board the car, and the probable consequence of his act was that he would thereby fall and be injured, there could be no recovery. It would deprive the words ‘accidental means’ of their natural meaning if a person could intentionally perform an act by which he took his life into his own hands, and from which unintended consequences followed, and then claim that such act was accidental simply because he did not know that such consequences would follow.” We have heretofore in this opinion disposed of a like contention of defendant, and adversely to it.

Defendant has had a fair and impartial trial, and the judgment of the superior court of Cook county should he and it is affirmed.

Affirmed.

Gridley and Barnes, JJ., concur.


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    The People of the State of Illinois, Defendant in Error, v. John Dewey, Plaintiff in Error.
    Gen. No. 34,362.

      Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed December 16, 1930.
    Eugene McCaffrey and Arnold V. Harris, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The jury found defendant, John Dewey, guilty of conspiracy and fixed his punishment at imprisonment in the county jail for the term of one year. A motion for a new trial was entered but it was afterwards withdrawn by defendant and judgment was entered on the verdict. Defendant has filed in this court only the comm ou law record.

The indictment consisted of five counts. A nolle was entered as to the second and third, and later the State’s Attorney elected to stand on the fourth and fifth counts. The fourth charged, in substance, that John Dewey, William Begley, Howard Hulburt and John Dobbins did unlawfully, etc., conspire, etc., “with each other, and with divers other persons whose names are to said Grand Jurors unknown,” with the fraudulent and malicious intent to unlawfully, etc., threaten to accuse Jean B. Hassewer of a crime, towit, counterfeiting, said defendants intending by said threat to extort from Hassewer a large sum of money, towit, $1,000, contrary to the statute, etc. The fifth count is substantially the same as the fourth save that it charges that the defendants intended by the threats to extort from Hassewer $600 and two checks and orders for the payment of money of the value of $200. On motion of the State’s Attorney the trial court entered an order “that said defendant, John Dewey, do have a separate trial in this cause.” Thereafter, upon his plea of not guilty, he was tried alone. He insists that the severance was granted over his objection, but as there was no bill of exceptions filed we cannot so assume. Nor can we assume that the trial court abused its discretion in granting the severance or that defends ant was in any way injured by reason of the same. Defendant contends that as he alone could not commit the offense of conspiracy that after verdict the trial court should have suspended judgment against him until it appeared that one or more of the other defendants had been convicted of the charge. The only case that defendant cites, or could cite, that tends in any way to support his contention is Gasper v. State, 47 Wis. 535. In that case an information was filed against Charles Casper, Peter Bellinghausen and Henry Gr. Phillips and thereafter the motion of Bellinghausen and Phillips for a change of venue was granted and the cause as to them was removed from the municipal court to the circuit court. Casper was then tried alone in the municipal court and convicted. The Supreme Court held that where several persons are prosecuted together for a crime which one, or other limited number only, camiot commit (like conspiracy or riot), and are taken and may be brought to trial, and, on separate trials, verdicts go against a number who are not capable in law of committing the crime charged, judgment against those found guilty should be suspended until the number necessary to the crime are convicted, those already found guilty being meanwhile held in custody or under recognizance, and when verdicts are found against the number necessary to the crime, judgment should go against them, but if a sufficient number are not convicted, those against whom verdicts have been found should be discharged. It was said that if the co-defendants of Casper were subsequently tried and acquitted, such acquittal would be inconsistent with the conviction of Casper, who had been tried alone, and should operate in law to acquit him also. The court cited no case in support of its position, and admitted that the common law rule is contrary to the one it amiounced. In the Wisconsin case the information charged that defendant Casper and two codefendants conspired, etc., but there was no allegation that other persons whose names were unknown conspired with them, and it appears, from the opinion, th'at there was no contention by the prosecution that any person not specifically named in the information was engaged in the alleged conspiracy. The theory of the decision was that until one, at least, of the codefendants had been convicted the prosecution had not established that the conspiracy charged had in fact been committed. Even if it could be held that this decision announced a correct principle of law, it would avail defendant in the instant case nothing. The indictment in question, unlike the information in the Gasper case, alleges that the three defendants named, “with divers other persons whose names are to said Grand Jurors unknown,” conspired, etc., and the evidence may have shown that Dewey conspired with one or more persons whose names were to the grand jury unknown. Moreover, in the Wisconsin case it appears that after Casper had been found guilty he moved in arrest of judgment on the ground that he was the only one of the defendants that had been found guilty. In the instant case, the record discloses that defendant made no such motion, but on the contrary he withdrew his motion for a new trial, thereby, in legal effect, conceding that there was no good reason why judgment should not be entered against him. Moreover, there is nothing in the .record from which it could be presumed that the codefendants Begley, Hulbert and Dobbins have not been convicted of the charge. The rule announced in Gasper v. State, supra, however, is contrary to the common law and the law followed in other states of the Union. The fact that the crime of conspiracy cannot be committed by one person does not prevent one person from being found guilty of such crime if the conspiracy charged is proven and that the one person tried participated therein. One person may be found guilty under an indictment charging him with having conspired with persons unknown to the grand jury. (People v. Mather, 4 Wend. [N. Y.] 229; State v. Slutz, 106 La. 182.) Even though all of the conspirators are known, each of them may be indicted and convicted separately. (People v. Richards, 67 Cal. 412; State v. Sluts, supra; Heine v. Com., 91 Pa. St. 145.) In such a case a judgment of conviction may be pronounced against one before the trial of the others. (Rex v. Kinnersley, 1 Stra. [Eng.] 193; Reg v. Ahearne, 6 Cox C. C. [Eng.] 6; Eacock v. State, 169 Ind. 488; Rradshaw v. Territory, 3 Wash. Ter. 265.) Where two are indicted one may be prosecuted to judgment before the trial of the other. (People v. Richards, supra.) In Bradshaw v. Territory, supra, Bradshaw and two others were indicted for conspiring with a fourth person to defraud, etc. Bradshaw was tried alone. The fourth person was excluded from the indictment in order that he might give evidence for The People. After Bradshaw had been found guilty there was a mistrial of his two codefendants and the indictment was' then dismissed as to them upon motion of the prosecuting officer. The judgment against Bradshaw was affirmed. The fact that one of two conspirators secures immunity by becoming a witness for the prosecution does not prevent the conviction of the other, even though there were no other persons in the conspiracy. (Weber v. Com. [Ky.], 72 S. W. 30.) In Com. v. Edwards, 135 Pa. St. 474, the indictment charged that Edwards, Farrell and diveps other persons whose names were to the jurors unknown, conspired, etc. When the case was called for trial a plea of guilty was entered by Farrell and a plea of not guilty by Edwards. On the trial of Edwards the jury returned a verdict of not guilty and “that the prosecutor, T. A. Long, pay the costs.” The finding against the prosecutor was apparently based upon a statute. After verdict the prosecutor moved to set aside that portion of the verdict directing him to pay the costs, but the court sentenced him to pay .the costs of prosecution upon the theory that the acquittal of Edwards rendered Farrell’s plea of guilty a nullity. The prosecutor appealed. The Supreme Court, in its opinion, stated that “if a nolle prosequi had been entered as to Edwards, the indictment, and Farrell’s plea to it, would have supported a judgment against him. . . . Edwards might well be innocent of the crime charged in the indictment, and Farrell be guilty of conspiracy with divers persons whose names were to the grand jurors unknown. An acquittal of the former cannot, therefore, be held to establish the innocence of the latter.” The judgment against the prosecutor was reversed. In State of Louisiana v. Egan, 10 La. Ann. 698, the indictment charged that Egan and three codefendants, together “with divers other evil disposed persons to the number of ten or more to the inquest aforesaid as yet unknown,” were participants in a riot. On the trial Egan was found guilty and his three codefendants were acquitted. On the appeal Egan urged that the judgment should have been arrested because he alone was found guilty of the riot and that one person cannot commit a riot, but the court held that although his three codefendants had been acquitted that fact did not ‘ ‘ render it impossible for the appellant to be found guilty of a riot in company with the unknown persons. 2 Hawkins P. C. 626; Rex v. Scott, 3 Bur. 1262; Wharton’s Grim. Law, 726; 3 Arch. 590,” and the judgment as to Egan was affirmed. One of three persons who are indicted for conspiracy may likewise be convicted notwithstanding the death of the second and the acquittal of the thirds (People v. Olcott, 2 Johns. Cas. [N. Y.] 301.) In the instant case the verdict found defendant Dewey guilty of conspiracy in manner and form as charged in the indictment, and we must assume, in the absence of a bill of exceptions, that the verdict of the jury was sustained by the proof, and for aught that appears in this record the trial court did not commit error in entering judgment upon the verdict. The judgment of the criminal court of Cook county will be affirmed.

, Affirmed.

Gridley and Barnes, JJ., concur.


text:
    Waldemar Michaelsen, Appellee, v. R. E. Doonan and Spray-Lac Mfg. Co., Appellants.
    Gen. No. 34,432.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed December 16, 1930.
    Charles L. Barrett, for appellants.
    J. Kendall S. Mitchell, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Waldemar Michaelsen, plaintiff, sued ft. E. Doonan and Spray-Lac Manufacturing Company, a corporation, defendants, in the municipal court of Chicago in an'action of the fourth class, for $189.05. There was a trial- before the court, without a jury, and a finding and judgment for plaintiff in the sum of $189.05. Defendants have appealed.

The following is plaintiff’s statement of claim:

“Plaintiff alleges: claim is for money paid and expended for the-benefit of defendants by the plaintiff in payment of the balance due upon a certain note of the defendants, endorsed by R. E. Doonan, defendant and plaintiff in pursuance of the following agreement:—
‘October 2, 1928
Mr. Waldemar Miehaelsen,
Chicago, Illinois Dear Sir:
Referring to the note of seven hundred fifty ($750.00) Dollars, dated Sept. 29,1928, which you gave to the University State Bank with notes amounting to $807.03 as collateral, would say that this company and the writer personally will and do hereby guarantee that should there be any contingent liability on this note we will protect you against any loss.
Tours very truly,
Spray-Lac Meg. Co.
RED:em (Sig.) R. E. Doonan, President’
Whereby the. defendants became and still are indebted to plaintiff in the sum of $189.05.”

On or about September 28, 1928, plaintiff was connected with the Spray-Lac Manufacturing Company, but in what particular capacity the evidence does not disclose. It appears, however, that he signed checks and had something to do with the execution of the notes in question. ' On September 29, 1928, plaintiff and the secretary and treasurer of the company executed, on behalf of the company, a promissory note for $750, payable to the order of University State Bank and due in ninety days. This note was indorsed by plaintiff and defendant Doonan. At the time it was delivered to the bank there were also delivered to it certain notes of customers of the company to the amount of $800 as collateral security for the payment of the note for $750. At the time that plaintiff indorsed the note there .was delivered to him the agreement set .up in plaintiff’s' statement of claim. At the time the $750 note was due the bank had sold .part of the collateral notes and applied the proceeds, $300, on the principal note. The $750 note was then cancelled and delivered by the bank to the company. Plaintiff and defendant Doonan, apparently, then indorsed it “Paid” and it was placed in the files of the company. At the time the bank surrendered the note for $750, a new note for $450 was executed by the company and indorsed by plaintiff and Doonan. From time to time the bank sold part of the collateral, and there were other notes given by the company, which were indorsed by plaintiff and Doonan, until finally the bank held a note of the company for $189.05 and a part of the collateral. When this note became- due the company, apparently, had ceased doing business and the bank was unable to collect the note from it. Thereupon plaintiff gave his personal note to the bank for $189.05, and the bank marked the note of the company for $189.05 paid and turned it and the remaining collateral over to plaintiff. This personal note was not due at the time of the trial of the instant case and plaintiff had not paid it. Plaintiff states that “the suit is not on the note but on the guaranty which is an original agreement and not part of the note. ’ ’

Defendants have raised and argued a number of points in support of their contention that the judgment must be reversed, but in the view that we have taken of this appeal it is necessary to refer to one only, viz., that the guaranty covered only the original note for $750 and that the undisputed evidence shows that this note was paid and that thereby the guarantors were discharged from their liability under the guaranty. The evidence shows that the note was cancelled by the bank and that it was delivered to the company and, apparently, was marked “Paid” by plaintiff as well as by defendant Doonan, the other indorser, and was placed in the files of the company. The giving of the new note was prima facie payment of the old one. (Trego v. Estate of Cunningham, 267 Ill. 367.) As a general rule payment is presumed when the- note is found in possession of the maker. (Cassem v. Heustis, 201 Ill. 208.) Under the undisputed facts of the case it must be held that the original note for $750 was paid. Plaintiff argues, as we understand it, that because of the use of the word “contingent” in the guaranty it must be held that the guaranty was in force until the time when plaintiff’s personal liability to the bank became fixed, viz., when the bank accepted plaintiff’s personal note for $189.05 in payment of the balance then due the bank on the last note given by the company. We cannot agree with this interpretation of the guaranty. The law is well settled that the undertaking of a guarantor is to be strictly construed and that his liability is not to be extended by construction or implication. (Cigler v. Keinath, 265 Ill. 144, 146; Phoenix Mfg. Co. v. Bogardus, 231 Ill. 528, 531; Tolman & Co. v. Rice, 164 Ill. 255, 258-9; Heberling Med. & Ex. Co. v. Smith, 201 Ill. App. 126, 130-1; Harman Co. v. Kastor, 202 Ill. App. 9; West Madison State Bank v. Mudd, 250 Ill. App. 636; West Madison State Bank v. Mudd, 250 Ill. App. 258.) As stated in Ryan v. Trustees of Shawneetown, 14 Ill. 20, 24, “guarantors and sureties are not to be made liable beyond the express terms of their engagements. They have a right to prescribe the terms and conditions upon which they will assume a responsibility; and no person has a right to change those terms. . . . We cannot enforce terms which the parties have not stipulated to fulfill. ’ ’

In our judgment the guaranty is neither ambiguous nor doubtful in meaning. In plain language, it says that “this company and the writer personally will and do hereby guarantee that should there be any contingent liability on this note we will protect you against any loss.” (Italics ours.) Under the rules of law applicable to the instrument in question, we are satisfied that the guaranty applies only to the original note for $750.

Under the undisputed facts of this case plaintiff was not entitled to recover upon the guaranty, and the judgment of the municipal court of Chicago must therefore be reversed.

Reversed.

G-ridley and Bashes, JJ., concur.


author: Mr. Justice Barnes

text:
    Herman Tietke, Appellant, v. Union Bank of Chicago, Appellee.
    Gen. No. 34,211.

      Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed December 16, 1930.
    Rehearing denied December 30, 1930.
    Chittick, Blankenship & Baltz, for appellant.
    Kirkland, Fleming, Green & Martin, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

On submission of this cause to the court upon stipulated facts there was a judgment against appellant for costs. The action is one to recover money paid defendant on two contracts for conveyance of certain lots, the contracts differing only as to the lots described.

These contracts were between defendant, called the “vendor” therein, and plaintiff, called the “purchaser.” They provided that if plaintiff made certain payments by instalments and performed the covenants therein provided for, “said vendor will convey, or cause to be conveyed, ”-the fee simple title to said lots.

Under a certain trust agreement the Chicago Title & Trust Company as trustee, held the legal title to the lots, and one Croissant was designated therein as manager and as having ‘ ‘ the sole and exclusive power ’ ’ to sell them, and defendant was to receive all moneys due and payable under the contracts of sale, except such portions as were retained by the manager for commissions, and was to distribute the saíne in a manner provided for but not material to the issues here. This was the relation of the several parties when the suit was brought, except that the Chicago Title & Trust Company had, without plaintiff’s knowledge, undertaken to ratify and confirm the said contracts.

• Defendant was incorporated as a banking corporation under the statutes of Illinois and is qualified under the Illinois statutes to do business as a trust company, but when it executed the contracts it had no authority from the Chicago Title & Trust Company to execute them.

In addition to these facts it was stipulated that after plaintiff signed the contracts, to wit, on October 4, 1926, they “were on October 16, 1926, brought to defendant "Union Bank of Chicago for signature by an employee of said Croissant who remitted with the contracts the sum of $606.25” ; that plaintiff continued making payments thereon to and including October 24, 1927, paying in all the sum of $4,373.25, of which amount $2,648.32 was paid to defendant Union Bank of Chicago, the balance being paid to said Croissant, and that the latter sum less the bank’s collection charges, was from time to time delivered by defendant to Chicago Title & Trust Company pursuant to the terms of said trust agreement.

It was also stipulated that on February 24,1928, the Chicago Title & Trust Company executed an agreement with defendant by which it ratified and confirmed all contracts executed by defendant pertaining to the trust, including said two contracts, and agreed therein to perform and fulfil the obligations of defendant as vendor under said contracts. Plaintiff began this suit June 22, 1928, and had no knowledge of said ratification until the same was pleaded herein.

The first count of the declaration is predicated on the fact that defendant was unable to convey title, not being vested therewith, and was not an agent for the owner and that its said agreement was beyond its corporate powers and is null.and void.

The second count is based on the theory that under said contracts defendant falsely represented itself as the legal owner or agent of the legal owner, and not being such it could not and cannot convey the property, and relying on such representations plaintiff made payments on the contracts.

The common counts are also pleaded.

That the contract was void ab initio for want of power in defendant under its charter as a bank to deal in real estate other than that necessary to do its banking business and that to which it may obtain title in the collection of its debts, is not questioned. (Cahill’s St. ch. 16a, If 9.) But appellee seeks to sustain its authority to execute the contracts in question on the ground that it is qualified to do business as a trust company. To be sure, under the trust statute (Cahill’s St. ch. 32, ff 345) it may as a corporation execute trusts and be appointed trustee by deed. But there is nothing in the stipulated facts which confer upon defendant any such trust relation as contemplated by said Act. The only power conferred upon" it in the trust agreement to which it was a party is that of collecting and distributing money. It held no trust relation to deal with the title to real estate. It was given no title to the lots involved or power as trustee, agent or otherwise, to sell them or contract for their sale, hence its contract was ultra vires as outside the scope of any power it possessed and unenforceable by either party to the contract. (Mercantile Trust Co. v. Kastor, 273 Ill. 332, 342.) While in such a case neither party can sue on the contract, the money paid by a party thereon may be recovered back as money had and received to his use. That being so, it inevitably follows that plaintiff’s right to the recovery of the money he has paid defendant cannot be defeated, as argued by appellee, on the ground that he .was in default in payments required to be made under the void contract.

Appellee argues that defendant bank acquired authority from Croissant to act as his agent because his employee brought the contracts to defendant “for signature, ’ ’ as was stipulated to, and that it signed them as “agent.” But even if Croissant so intended, it is clear that the attempt of the bank to act as such did not constitute such a trust relation as contemplated by the trust act.

Nor was the ratification of the contracts by the holder of the legal title binding on plaintiff without-his consent. (Cowan v. Curran, 216 Ill. 598, 611; Atlee v. Bartholomew, 69 Wis. 43; 1 Am. & Eng. Ency. of Law [2d Ed.] p. 1194.) The general rule as followed in the cited cases and as stated in the Cyclopedia, is: “Where a contract, sought to be ratified, is partly executory, and the party seeking to ratify does so to avail himself of the unauthorized act in order to en-r force a claim against a third person, such ratification is held, on the ground of want of mutuality, to be of no effect unless agreed to by such third party.” There was no such agreement on the part of plaintiff. In fact, he never knew of the ratification until it was pleaded.

Nor is the principle that one may contract to sell or cause to be sold, property he does not own, applicable to a corporation devoid of the power to make such a contract.

Appellee’s expressed alarm at the consequences to banks and trustees in general, if defendant is held to be liable in this case, seems wholly unwarranted. Banking corporations do not ordinarily allow subordinate officers and clerks to assume the exercise of questionable powers without the guidance of competent advice.

In view of our finding that the execution of the contracts by defendant was ultra vires and the ratification thereof ineffectual to bind plaintiff, the judgment will be reversed and judgment will be entered here for plaintiff for the amount of money he has paid on the contract to defendant, to wit, $2,648.32, with interest thereon at the rate of 5 per cent from June 22, 1928, when the suit was commenced.

Reversed with findings of fact and judgment here for $2,975.60.

Soanlan, P. J., and Gridley, J., concur.

Findings of fact: We find that the contracts in question were void and that plaintiff has paid to defendant thereon the sum of $2,648.32.