text:
    Alexander Rouland et al., Appellants, v. William H. Burton et al., Appellees.

      Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    E. L. Maher, of Granite City, for appellants.
    Joseph C. Steele, of Granite City, and O’Neill & O’Neill, of Alton, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On March 15, 1933, defendants executed their promissory note for $2,500' payable to order of Gilbert K. Swain, trustee, secured by a trust deed upon certain property in the city of Alton.

Catherine M. Kunz, a resident of Alton, died on December 2, 1934, as a result of a surgical operation to which she had submitted several days previous to her demise. Alexander Rouland, plaintiff, was appointed administrator of her estate, and upon examining the contents of her safety deposit box, found the above mentioned note and trust deed. He later filed suit to foreclose the lien of the latter, and the defendants William H. Burton and Louise L. Burton, his wife, the makers thereof, filed answer in which they alleged that Mrs. Kunz, on November 23, 1934, by quitclaim deed, released to them all her rights under the trust deed, and that same ceased to be a lien upon the premises described therein.

Plaintiffs amended their complaint to aver that such deed was inoperative to release the deed of trust, for the reason that it was never delivered in presentí; that it was intended to take effect at the death of Mrs. Kunz and as such was an attempt to dispose of such property by way of testament; that lacking the necessary legal requisites to such disposition, same was of no avail, and praying that the quitclaim deed be canceled.

The cause was referred to a master in chancery, who, after hearing, found that the quitclaim deed had been delivered; that it was a release of the trust deed and canceled the indebtedness secured thereby, and recommending that the bill to foreclose be dismissed. The chancellor approved the report and entered a decree in accordance with its recommendations; from which this appeal has been taken. The sole question is whether or not there was a valid delivery of the quitclaim deed.

The proof upon such proposition, in substance, was that decedent lived in the home of defendants; that William II. Burton had been doing some repair work for her upon some property she owned; that she was about to submit to a surgical operation at Hannibal, Missouri, and that during the evening previous to her leaving for such purpose, she and said defendant were checking over some bills relative to such repairs. James Burton, son of defendants, stated that while such was in progress she arose, went to her room, returned with a sealed envelope, handed same to his father and said: “Here,'Billy, these are yours, put them away and keep them”; that his father put the envelope in the secretary and nothing more was said about it; that other matters were then discussed, and that on the following day, November 24, 1934, Mrs. Kunz left for the hospital, and died about 10 days later. The witness further testified that later, during the following March, he saw the envelope opened in the presence of defendants, and that it contained the deed in question, some bills for repairs, and a letter in words and figures following:

“Alton, Illinois, November 23rd, 1934. “Dear Will and Lee:
“As I am going to play a game of chance Monday, I want to say I have enjoyed my home here and want to thank you both for the many kindnesses you have shown me. And here is hoping I will return and we will spend the remainder of our days as we have planned.
“Billy, I am making you a quit-claim deed to your home place to cancel that trust deed which you gave me, also a deed to the places I bought on Grand Avenue and in rear, that will take care of what I owe you for repairing the places, and for the extra work on them, as you took it to help me out as usual, but there was no money in it for Billy. I am now making amends to you.
“I have some Liberty Loan Bonds in the bank, deposit box No. 598 in First National Bank & Trust Company, of which I bequeath to Wm. H. Burton One Thousand Dollars $(1,000.00) to use as he sees fit.
“I am leaving these deeds and bequest here so that if anything should happen to me at any time before I get home this will serve as a delivery to you of these deeds and bequest. I would rather you and Lee have this property than any one else, as you and Lee have been a father and mother to me. If the operation proves fatal, take these papers as soon as you find them to Judge Burton and I pray he will grant my request, and while in Edwardsville have these deeds recorded before Genevieve makes you any trouble.
“Now, Billy, do as Catherine says. Good bye.
Catherine M. Kunz.” William H. Burton testified that he did not know the contents of the envelope when it was handed to him, and was not advised of same until the March following, when it was opened, and he then found the documents referred to by his son; that he thereupon delivered the letter to the administrator and filed the deed for record. He further testified that at the time Mrs. Kunz handed him the envelope she stated: “Here, Billy, I am giving you these papers, take them and put them away.”

Mary Tiska and Fannie Craig both deposed that the deceased, some few months previous to her death, had stated to them that she was going to cancel the obligations of defendants. William Wilson, an attorney, testified that Mrs. Kunz told him, the day before she left for Hannibal, referring to the trust deed, that “I fixed it so he would not have to pay the principal. ’ ’

The foregoing epitomizes the proof relative to the matter of delivery, and the only question is whether such is shown by the evidence.

It is elementary that to render a deed valid as an instrument of conveyance, it must be proven that there was a delivery, Deitz v. Deitz, 295 Ill. 552; also, if it was intended to become operative only in the event of the grantor’s death, it would be in law a testamentary disposition, and to be valid as such would have to conform to the requirements of the statute on wills, Steinke v. Sztanka, 364 Ill. 334; Hollenbeck v. Hollenbeck, 185 Ill. 101.

In determining whether or not there has been a delivery, it is essential to ascertain the intention of the grantor, as that is decisive of the question, Kelly v. Bapst, 272 Ill. 237; Hoyt v. Northup, 256 Ill. 604; and such purpose may be evidenced by words of the grantor, or by facts and attendant circumstances. Bach case must be decided upon its own particular facts, Pemberton v. Kraper, 289 Ill. 295.

To constitute delivery it must clearly appear that it was the grantor’s intention that the deed should pass title at the time and that he should lose control over it. If the deed is to become effective upon the happening of some future event, such as the death of the grantor, there is no valid delivery, as he must presently relinquish or part with his right of dominion over it, Schultz v. Schultz, 274 Ill. 341; Pemberton v. Kraper, supra.

It will be observed that in the letter of directions accompanying the deed, Mrs. Kunz, after first thanking the grantees for their kindness to her and expressing her appreciation therefor, as well as acknowledging an indebtedness to William H. Burton for work done by him in her behalf, and stating that she now was making amends to them, then states that she bequeaths $1,000 in Liberty Bonds to William H. Burton, following which she declares: “I am leaving these deeds and bequest here so that if anything should happen to me at any time before I get home, this will serve as a delivery to you of these deeds and bequest. ’ ’ She here states that if anything should happen to her before she returned home, — evidently referring to her possible demise as a result of the contemplated operation, “this will serve as a delivery to you of these deeds and bequest,” Mrs. Kunz, by her own words, conditions their delivery upon the contingency of her death. Had she intended that the deed should pass title presently, it would be most unlikely that she would have provided that it should be considered as delivered in the event of a fatality to her.

Such a provision is inconsistent with an intention to transfer title at the time and to lose all control over the deed, as is necessary to constitute a valid delivery. Moreover, she later provides: “If the operation proves fatal, take these papers as soon as you find them to Judge Burton . . . and while in Edwardsville have these deeds recorded.” Here again we find her directions to be contingent upon her death, and if it resulted then the deeds were to be recorded. If she had purposed a present grant of the premises she would not have been concerned with the recording of the instrument of conveyance, as that would have been a matter which was of moment only to the grantee. It indicates that it was her intention and desire that the deed should only be filed for record in case of her death, and clearly implies that she' regarded herself as being entitled to dominion over it if she survived her operation. Also, when she delivered the envelope to the defendant, she told him: “These are yours, put them away and keep them. ’ ’ If she had intended that they were to become at once his absolute property over which she had no further control, why the admonition to put them away and take care of them? It would, in such event, have been of no interest to her whether he did or did not care for them, and would have been directly to the interest of defendants to have them immediately recorded and thus avoid danger of their loss or destruction.

These injunctions, both verbal and written, seem to indicate that Mrs. Kunz did not intend to part with all control over the instruments, but contemplated that they should become effective only in the event of her death, consequently there was no valid delivery of the deed, Schultz v. Schultz, supra.

The decree is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Murphy

license: Public Domain

text:
    Lola Jones, Appellee, v. Lester Standerfer and Mt. Vernon Home Oil Company, Appellants.

      Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    Curtis Williams, of Mt. Vernon, for certain appellant.
    Kramer, Campbell, Costello & Wiechert and John C. Roberts, both of East St. Louis, for certain other appellant.
    George E. Dodd, West Frankfort, and Conrad Sohul, of Mt. Vernon, for appellee; Everett B. Dodd, of Wood River, of counsel.
   Mr. Justice Murphy

delivered the opinion of the court.

Lola Jones brought this action to recover damages for personal injuries she claimed to have sustained when struck by a truck. She made Lester Standerfer and the Mt. Vernon Home Oil Company herein referred to as the Oil Company, parties defendant. A trial by jury resulted in a verdict and judgment for $5,000 against both defendants. Defendants have perfected separate appeals and filed separate briefs. Some of the errors urged for reversal are common to both defendants but the Oil Company urges a ground not raised by Standerfer which we shall first discuss.

The Oil Company contends that there is no evidence tending to prove that George Standerfer, driver of the truck, was its servant. It contends that the relationship of the driver of the truck to it, can only be traced througli the contractual relationship existing between it and the defendant, Lester Standerfer, and asserts that Lester Standerfer was an independent contraetor.

The complaint on which the case was submitted to the jury consisted of four counts, each of which alleged that on the date of the accident the defendants, Lester Standerfer, and the Oil Company were engaged in the business of sale and distribution of gasoline and oil products within the city of Mt. "Vernon and were using a tank truck in the distribution of the same and that the defendants had in their employ as driver of the truck one George Standerfer.

The evidence conclusively shows that the truck was owned by defendant, Lester Standerfer, that he employed the driver, paid him his compensation and directed him as to his duties in reference to the sale of the products and collection of the same. It appears that his duties included the delivery of oil products to urban customers, that he used the truck-in making such deliveries, collected from the customers to whom he sold and made his reports to the defendant, Lester Standerfer. The evidence shows that a part of the customers placed orders direct with him, others with Lester Standerfer or some of his employees. The statements which he made and delivered to customers showed the account to be with the Oil Company. It does not appear that he received any direction from the Oil Company as to the performance of his duties or the use he was to make of the truck. At the time of the accident the truck was partially loaded with gasoline and oil products which the driver had obtained from the bulk plant of the Oil Company in Mt. Vernon. The evidence does not disclose the final destination of the trip the driver was starting at the time of the injury, but it may be fairly assumed that he was on his way to make delivery of gasoline and oil products to customers in the country. There was no contractual relation between the driver and the Oil Company. If there is anything that establishes the relation of master and servant it must have its source in the terms of the written contract that existed between the defendant, Lester Standerfer and the Oil Company.

The contract, which had been entered into several months prior to the accident, provided that in consideration of certain mutual benefits the Oil Company employed Standerfer to act as its agent in the city of Mt. Vernon. Standerfer was to receive, care for and sell exclusive of all other products, the oils, lubricants, etc. which the company supplied for sale. The title to all products was retained by the Oil Company until delivered to the customer. The sale price was fixed by the company. Standerfer was to make collections, deposit the same in a bank to be designated by the company, make daily reports to the company at its home office in Marion. The reports were to contain information as to the amount of deposit, sales and remittances. At the end of each month he was to submit to the company an inventory of products on hand. He was charged generally with the care of the company’s property which he had, including the return from customers of all shipping barrels. He could not extend credit without written permission from the company and was liable for any loss sustained arising out of the violation of such provision. Standerfer was to furnish at his own expense all necessary teams, motor power, drivers and labor in making sales, deliveries and collection. He was to be liable for demurrage charges imposed by the railroad company. He agreed generally to perform his duties in a businesslike manner employing no improper, questioned or illegal methods in soliciting or securing business.

As compensation he was to receive commissions monthly, based on the net cash receipts from completed sales and deliveries. The company reserved the right to reject, with or without cause, and without assigning any reason, any orders for oil products taken by Standerfer. No commissions were to be paid on rejected orders and the right was reserved to deduct from commissions due Standerfer any amounts for which he was liable under the contract. Eight to terminate the contract was given to either party at any time by the giving of notice.

The general rule is that a party injured by the negligence of another must seek his remedy against the person, who caused the injury. Well recognized exceptions to this general rule arise where the relation of master and servant, principal and agent are shown, and in those cases the negligence of the servant or agent is imputable to the master or principal, but to bring the case within the exception, it is necessary to show that the relation of master and servant or principal and agent exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and in respect to the particular transaction out of which the injury arose. Mosby v. Kimball, 345 Ill. 420, 427.

Assuming that the allegations of the complaint that the Oil Company and Lester Standerfer employed the truck driver, would if the evidence warranted it, be sufficient to cover a relationship of master and servant, joint owners or principal and agent we can more readily dispose of the question by determining whether Lester Standerfer was an independent contractor as contended by the Oil Company, for if he was all other relationships are necessarily excluded.

Among the numerous definitions of an independent contractor the Supreme Court in Bristol & Gale Co. v. Industrial Commission, 292 Ill. 16, 21 quoted the following: “ ‘An independent contractor is one who renders service to another in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished.’ Ag’ain: ‘An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it and may use his own discretion in things not specified.’ (Gay v. Roanoke Railroad & Lumber Co., 148 N. C. 336.) Also: ‘One who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant. ’ Hale v. Johnson, 80 Ill. 185.”

From these definitions and the opinions of the courts of last resort of this and other States it is manifest that the decisive inquiry is whether the Oil Company had any control over the driver of the truck and in his management and operation of the same.

The contract between the parties controls that question. We are of the opinion that the control reserved by the contract to the Oil Company is as to the ultimate results to be obtained in the sale of oil products and that it pertains to the contractual features rather than to a control over the details and physical movements necessary to accomplish the results sought in the sale of oil products. Control was reserved to fix the sale price, to extend credit, to require reports and inventories, but it did not undertake to control the hours of labor, the time to make collections, the persons to solicit for orders. To be more specific in reference to the use of the truck it will be noted that the Oil Company had no interest in the truck, assumed no liability to pay the expense of operation. In fact it did not even direct that the products should be delivered by truck for in the specification in the contract in reference to Standerfer paying all the expense in making delivery and collection, provision is made that it shall apply to necessary teams or motor power thereby giving Standerfer the right to select the means of transportation. The Oil Company had no right to employ laborers to make delivery or collections, nor authority to discharge anyone employed by Standerfer for such purposes.

In Bristol & Gale Co. v. Industrial Commission, supra, the court said, “The right to control the work contracted for is an important test in determining whether the employee is an independent contractor or a mere servant and it may be stated generally that if the employee is under the control of the employer he is a servant but if in the performance of the work he is not under the control of the employer he is an independent contractor.”

Many cases from other jurisdictions have been cited in counsels ’ briefs, several of which were exháustedly reviewed in Hempstead v. Toledo Scale Co., 270 Ill. App. 299, and in Meece v. Holland Furnace Co., 269 Ill. App. 164, and from a consideration of the principles laid down, we are of the opinion that the Oil Company was an independent contractor and that the court erred in not allowing’ its motion for a directed verdict.

The errors relied upon by the defendant, Standerfer, are that the plaintiff was guilty of contributory negligence and error in the giving* and refusal of instructions.

The evidence shows that plaintiff, an employee in a dress factory, located on the south side of Perkins Avenue in Mt. Vernon, came to her work shortly before 7 a. m., June 25, 1936, as a guest in an automobile driven by another employee. This automobile was stopped on the north side of the street directly north of the factory, headed west. Plaintiff got out on the right side stepping onto the boulevard. She then went east a short distance and turned to her right and stepped off the boulevard onto the street. She testified that as she took one step off the boulevard she looked to her left for the purpose of observing the traffic approaching from the east, that then she advanced another step and looked to her right to observe traffic approaching from the west and that as she did so the truck hit her. There is a conflict in the evidence as to the distance she had advanced from the north curb when struck. Plaintiff and her eyewitnesses fixing it at four or five feet while the truck driver and others fix it at or near the center of the street. The traveled part of the street was 24 feet wide. On the morning of this accident there were automobiles parked parallel with the curb on the south side of the street leaving about 18 feet for travel. There is evidence showing that the traffic at this point was unusually heavy at this hour". The left-front fender and bumper struck the plaintiff knocking her down and dragging her for a short distance. When the truck came to a stop the left-front wheel was on her foot. The truck was traveling about 15 miles per hour. The place where plaintiff was crossing was in the middle of the block and was not marked as a crosswalk.

Defendant refers to par. a, sec. 172, ch. 95½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.204], which provides “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” Defendant contends that plaintiff in crossing the street at this point was violating this provision and that therefore as a matter of law she is guilty of contributory negligence.

. Paragraphs b and c of the same section prescribe rules for pedestrians crossing roadways which have no application in this case. Paragraph d provides “Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning* by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. ’ ’

In view of the conflict in the evidence as to the distance plaintiff had advanced into the street when she was struck we are of the opinion that the question of her negligence being a contributing cause to the injury was a question of fact for the jury. If at the time she was hit she was only four or five feet from the north curb line then she was in that part of the street where westbound traffic was required to travel. She testifies she made observation for traffic and that no car was approaching from the east. She had a right to assume that the traffic coming from the west going* east would be on the south side of the street and we do not believe that the statute imposed the duty upon her to yield a right of way to traffic going in an easterly direction when she was still in that part of the street where the westbound traffic was required to travel. Under plaintiff’s evidence it is apparent that if the truck had been traveling on its proper side of the street plaintiff looked in ample time to have enabled her to have yielded the right of way.

The question of due care on the part of the plaintiff is always a question of fact to be submitted to a jury whenever there is any evidence in the record which with any legitimate inference that may reasonably and legally be drawn therefrom tends to show the exercise of due care on the part of the deceased. Blumb v. Getz, 366 Ill. 273.

The question of contributory negligence was under the evidence in this case properly submitted to the jury.

Defendant Standerfer contends that there was error in the giving of plaintiff’s Instruction No. 6 which told the jury that if they believed by the preponderance of the evidence that plaintiff had proven her case set forth in certain counts of the complaint they should allow her such damages as had been proven by a preponderance of evidence not to exceed $15,000. It is contended that the reference to the amount of the ad damnum was prejudicial. A similar instruction with a like objection was considered in Central Ry. Co. v. Bannister, 195 Ill. 48, 53 where it was said, “To our minds there is no objection whatever to an instruction for the plaintiff in an action at law because it refers to the amount sued for or limits the right of recovery to the amount claimed in the declaration, unless there is something in the instruction which tends to lead the jury to understand that they ought to or may allow the full amount so claimed, and we can perceive no valid objection to the second instruction in this regard.” Kellyville Coal Co. v. Strine, 217 Ill. 516, 533.

Objection is also made to the giving of plaintiff’s seventh instruction which told the jury that the rights of persons on foot and drivers of automobiles on the public highways are equal. That persons on foot on the public streets are required to use care, that they arc entitled to cross the streets but that in so doing they must use due care for their own safety, that automobiles are permitted to be driven on the streets and the drivers shall use ordinary care for the safety of pedestrians. Those parts of the instruction which refer to the equality of rights of drivers of automobiles and pedestrians were under the evidence and the statutes referred to misleading but the main feature of the instruction was that .both pedestrians and drivers should exercise due care. Furthermore defendant’s given instruction sixteen contained practically the same elements as plaintiff’s instruction seven. It told the jury that the plaintiff was just as much in duty bound tu exercise care to look out for the approaching truck as the truck driver was to avoid striking her. Defendant is in no position to complain of an instruction given for the plaintiff where one has been given at his request that contains the same vice that he complained of in plaintiff’s instruction.

Objections are made as to other instructions but they are not subject to the criticism directed against them.

For the reasons assigned the judgment of the trial court is reversed as to the Mount Vernon Home Oil and affirmed as to the defendant, Lester Standerfer.

Affirmed in part and reversed in part.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry Barnard and Annie Barnes Smith, Plaintiffs in Error.

      Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    Harry J. Flanders, of Eldorado, and O. K. Roedel, of Shawneetown, for plaintiffs in error.
    James W. Harder, State’s Attorney, for defendant in error.
   Mr. Justice Murphy

delivered the opinion of the court.

August 31, 1937, the State’s attorney of Gfallatin county filed an information in the county court of that county charging Henry Barnard and Annie Barnes Smith, defendants herein, with adultery. They were arrested the same day and entered into a recognizance for their appearance on the first Monday in September. Later the case was set for trial September 22, but September 21, the defendants appeared before the court with their attorney, signed jury waivers and entered pleas of guilty.

The judgment order which was entered on that date, shows that the court instructed each of the defendants as to their rights and admonished them as to the probable consequences of their pleas. The defendants persisted in their pleas of guilty and the court sentenced Barnard to the Illinois State Farm for 90 days and Annie Barnes Smith to the county jail of Gallatin county for a like period.

The same day that the order of imprisonment was entered an order was éntered staying the issuance of a mittimus until September 24, and on the latter date it was extended to September 27.

On September 27, defendants filed a motion to expunge from the record the judgment order entered September 21 sentencing the defendants to prison. The motion also prayed that they be granted leave to withdraw their pleas of guilty and jury waivers. The motion was overruled and defendants sued out this writ of error.

As grounds for the motion the defendants alleged that they were induced to enter their pleas of guilty by reason of certain representations of the State’s attorney as to the penalty they would receive; that sentence was not pronounced by the judge in open court in presence of the defendants and that they have a defense to the charge. Affidavits of defendant Barnard and his attorney, C. K. Boedel, were filed in support of the motion.

The facts alleged in Barnard’s affidavit as to the representation of the State’s attorney are that the State’s attorney told him that if he and his codefendant wished to enter pleas of guilty he would recommend to the court that each of them be fined $100 and costs; that the State’s attorney said that he had conferred with Judge Ford with reference to his recommendation, that while the judge did not indicate to the contrary he did tell him (State’s attorney) he could make the recommendation and that the State’s attorney said that the judge invariably followed his recommendation on pleas of guilty. It is also stated in Barnard’s affidavit that the State’s attorney made the recommendation to the court, that the court advised the defendants as to their rights. and said that he thought it was a case where there should be imprisonment at the State Farm. The record discloses that at the time the pleas of guilty were entered and recommendation of the State’s attorney was made, Mr. Roedel, their attorney, was present and representing them.

From the record it appears that the defendants entered their pleas of guilty with a full understanding of the law and the probable consequences that might follow such pleas. The State’s attorney made the recommendation to the court as he represented he would and the defendants were not mislead by any representation of the State’s attorney. From Barnard’s affidavit it appears that he knew that the recommendation of the State’s attorney was not binding on the court and could be accepted or rejected as the court under the facts might deem just. It is apparent that defendants ’ complaint is grounded upon the fact that the court declined to follow the recommendation of the State’s attorney.

The defendants having been fully advised as to their rights and the consequences of their pleas, the mere fact that they were disappointed in the court’s action in declining to follow the recommendation of the State .’s attorney furnished no grounds for permitting withdrawal of their pleas of guilty, nor does the mere fact that they hoped or believed that pleas of guilty would result in a milder punishment than they would receive upon a trial and conviction by a jury presents grounds for permitting the withdrawal of such pleas. People v. Wheeler, 349 Ill. 230; People v. Ensor, 319 Ill. 255; People v. Kleist, 311 Ill. 179.

In support of defendants’ contention that the court erred in not permitting them to withdraw their pleas of guilty it is urged that Barnard was influenced by statements made by the judge at the time of the sentence and after, and that these statements influenced Barnard in the making of a settlement with his wife in a separate maintainance suit which he would not have made had he known that he was going to be committed to the State Farm. Defendants contend that the court’s action in staying the mittimus on September 21, to the 24th and again to September 27, was in furtherance of the court’s statement that if defendants would procure the recommendation of certain persons he would admit them to “parole or probation.” The recommendations of the persons suggested by the court was procured by the defendants but the record shows that the sentence of imprisonment had already been imposed. The defendants could not have been influenced in the entering of their pleas of guilty by anything that the court said subsequent to the entering of the order of imprisonment. The settlement of the civil suit of Mrs. Barnard had no effect on the entering of the pleas of guilty for the inference to be gathered from Barnard’s affidavit is that he withheld the consummation of the settlement until he was convinced in his own mind that the court would follow the recommendation of the State’s attorney. His error of judgment as to the attitude of the court toward the State’s attorney’s recommendation furnishes no grounds for the withdrawal of the pleas of guilty.

• The general rule is that it is within the sound discretion of the court whether the plea of the defendant may be withdrawn where with a full understanding of the nature of the charge against him he has pleaded guilty. Four exceptions to this rule have been recognized, “ (1) ’Where it appears that a plea of 'guilty was entered through a misapprehension of the facts or the law; (2) where it appears that there is doubt of the defendant’s guilt; (3) where it appears that the defendant has a defense worthy of consideration by a jury; and (4) where it appears that the ends of justice will lie best served by submitting the case to a jury.” People v. Throop, 359 Ill. 354.

Nowhere in defendant Barnard’s affidavit does he say that he is not guilty of the offense charged nor does he set up facts from which it would appear that he had a defense worthy of consideration by a jury. The facts presented in the affidavits do not bring the defendant’s case within any of the exceptions to the general rules.

Defendant’s further contention is that they were deprived of their constitutional rights to be present in the court during every step of the proceedings. It is alleged in the affidavit that the court did not pronounce sentence in their presence on September 21 and that they did not know of the entering of the judgment until September 24.

As above noted the judgment order shows that the defendants were both present on September 21 and represented by their attorney and the record shows the judgment to have been entered on that date. Such record imports verity and cannot be impeached by testimony or affidavit. People v. Ambolo, 343 Ill. 480; Harris v. People, 130 Ill. 457.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mb. Presiding Justice

text:
    Max Englestein, Appellant, v. Walter Shammo, Appellee.
    Gen. No. 9,296.

      Opinion filed June 22, 1938.
    B. Jay Knight and John E. Goembel, both of Bock-ford, for appellant; Walker F. Hull, of Bockford, of counsel.
    Smith & Menzimer, of Bockford, for appellee.
   Mb. Presiding Justice

Dove delivered the opinion of the court.

On January 4, 1929, George B. Gregory was the owner of a portion of two lots on East State street in Bockford, which were improved by a two-story business building. On that day he and his wife executed their notes for $17,500 and secured the payment thereof by a trust deed upon said property and John B. Shammo became the owner and holder of these notes and trust deed. Subsequently Max Englestein became the owner of the property, taking title thereto subject to said incumbrance. Prior to September 1, 1933, Englestein had defaulted in his payments. Shammo had threatened foreclosure proceedings and as a result of considerable negotiation, Englestein, in consideration of the payment of $125 and the cancellation and surrender to Mm of said notes and trust deed conveyed said premises to Shammo and Shammo continued to own the premises until his death. On July 14, 1935, Shammo died and his two sons Walter L. Shammo and Charles A. Shammo became the owners thereof as tenants in common.

W. W. Parson was engaged in the real estate brokerage business in Rockford under the name of the W. W. Parson Agency and in the fall of 1936, Walter Shammo listed this property for sale with Parson at a price of $10,000. In February, 1937, Parson again saw Shammo and asked if the property was still for sale at $10,000 and was told that it was, and a little later, but during the same month, Parson informed Walter Shammo that he had received an offer of $5,500 for the property but Shammo refused to accept this offer. Later Parson told Shammo that he had an offer of $6,000 and a few days later that he had an offer of $7,000 and shortly after that that he had an offer of $7,250, all of which Shammo refused to accept. On the afternoon of April 24, 1937, Parson again came to Shammo’s home and brought with him three instruments, two of which Shammo signed. Parson told Shammo that the instrument was an offer to purchase, executed in triplicate and that the third copy, which Shammo did not sign, was his, Shammo’s, copy, which he should retain. The instruments signed by Shammo purport to be an offer by Max Englestein to purchase, through the Parson Agency, the real estate involved herein. By the provisions thereof, Englestein agreed to pay therefor the sum of $7,400 and the instruments recite that the purchaser had paid to the Parson Agency at the time he executed the instrument the sum of $100 as earnest money to be held in escrow by Parson and that upon the acceptance of the title to said premises, said sum of $100 would be applied on the purchase price. It further recited that $1,900 would be paid in cash upon the delivery of the deed and acceptance of the abstract of title and that the remaining $5,400 was to be evidenced by a note for that sum due in five years bearing 5 per cent interest, interest payable semiannually, said note to be secured by a mortgage upon the premises. Attached to each instrument was the following acceptance: “The undersigned Walter Shammo hereby accepts the foregoing offer on this 24th day of April, 1937 and acknowledges receipt of the said earnest payment of $100 and agrees that W. W. Parson Agency, Agents, shall hold the same in escrow, and agrees to pay the said W. W. Parson Agency for services rendered in connection with this offer, commissions which shall be computed upon the gross sale price and according to the schedule of commissions adopted by the Rockford Real Estate Board and now in force. In case the purchaser shall fail to make the payments or perform the covenants herein required or for any reason forfeits the said earnest money payment, then it shall first be applied in the payment of the said commissions and expenses, and any remainder shall be paid to the undersigned.” Walter L. Shammo signed this acceptance and Parson took two of the instruments away with him and Shammo retained the one which Parson advised him was his copy. The instrument he retained was identical with the ones he signed except instead of purporting to be an offer of purchase made by Englestein, it purported to be an offer of purchase by C. M. Anderson and bore the signature of O. M. Anderson. Upon all three instruments and below the foregoing acceptance appears the following: “We the undersigned W. W. Parson Agency on this 24th day of April, 1937 hereby acknowledge the receipt of the said earnest money payment of $100.00' which we accept and agree to hold in escrow according to the terms and conditions herein specified. W. W. Parson Agency By W. W. Parson.” Upon the one retained by Shammo in the handwriting of W. W. Parson appears: “We ag*ree to pay for continuation of abstract to date out of our commission. W. W. Parson Agency, W. W. Parson.” At this tipie Shammo delivered to Parson the abstract of title and it was continued by a firm of abstracters of title to and including April 26, 1937. A note and mortgage, in accordance with the provisions of the offer, were executed by Englestein and his wife, and they, with the said $1,900 cash payment as therein provided, were tendered Shammo, who declined to receive the same and declined to convey the premises to Englestein. Thereupon Englestein filed his complaint ag*ainst Walter Shammo for specific performance of the contract or in the alternative for damages for breach thereof. Shammo filed an answer and counterclaim. The counterclaim sought to have canceled the instruments executed by Shammo and to enjoin plaintiff from prosecuting any suit based thereon. The cause was heard by the chancellor, resulting in a decree in favor of the defendant and granting the counter-claimant the relief he sought and plaintiff brings the record to this court for review.

The record discloses that at the conclusion of the defendant’s evidence in the court below, counsel for appellant-made a motion to continue the cause and asked leave to amend the complaint by making Charles Shammo a party defendant. This motion was denied and this ruling* is one of the errors relied upon for reversal. . Counsel call our attention to section 25 of the Practice Act, which provides that where a complete determination of a controversy cannot be had without the presence of another party, the court may direct such party to be brought in, or where- a person, not a party, has an interest or title which the judgment may affect, the court shall, upon application, direct him to be made a party. Counsel arg*ue that the evidence discloses that Charles Shammo had an undivided interest in the property involved herein, and that if he had been made a party, he could then have been called as a witness and it could have been shown that Walter Shammo was acting as agent for Charles. Sections 25 and 26 of the Practice Act provide for bringing in or adding new parties at any stage of the cause when the ends of justice may so require. The instant proceeding*, however, was based upon a written contract and the parties to that contract were plaintiff and defendant respectively in the trial court. A complete determination of the issues could be and was made by the decree entered. Furthermore, counsel for appellant could have called Charles Shammo as a witness and proved by him what they say they could have proved, whether he was a party to the suit or not. Furthermore, counsel for appellant could not have been taken by surprise by anything that developed upon the hearing. The record discloses that the complaint was filed on July 6,1937. The answer of the defendant was filed on September 1, 1937, and paragraph five thereof states that the title to the premises described in the complaint is held by Charles Shammo and Walter Shammo as tenants in common, each owning an undivided one-half thereof and that they acquired title through the estate of their father John R. Shammo. Paragraph three of the counterclaim is substantially the same as paragraph five of the answer. The cause was heard on September 25th and the evidence is that Walter Shammo delivered to Parson the abstract of title to the premises involved herein on April 24, 1937. That Shammo immediately took it to Holland Ferguson & Company, abstracters of title, who continued it down to and including April 26, 1937, and returned it to Parson, who then delivered it to Englestein for examination by his attorney. In our opinion the chancellor did not err in denying* the plaintiff a continuance and leave to amend Ms complaint by mailing Charles Shammo a party defendant.

Counsel for appellant, in their argument, state that their client particularly desired this property and therefore they brought this suit for specific performance. The evidence, however, discloses that appellee had title only to an undivided one-half interest therein and therefore, under the allegations of the complaint, specific performance could not be decreed. Conceding that this is true, counsel then contend that under the allegations of the complaint appellant was entitled to a money judgment against appellee for breach of his contract. Upon the trial appellant offered no testimony that he sustained any damages by reason of appellee’s failure to complete the sale of the property to appellant. The counterclaim of appellee alleged that the offer of appellant to purchase the premises for $7,400 was grossly inadequate. In support of this allegation, appellee, over appellant’s objection, was permitted to prove by two witnesses that the premises had a fair, cash market value on April 24, 1937, of at least $10,000. Counsel then argue that inasmuch as this evidence is in the record, it necessarily follows that he is entitled to a money judgment for $2,600, being the difference between the contract price of $7,400 and the market value of said premises, being said sum of $10,000. There is no merit in tMs contention. The evidence as to the market value of the premises on April 24, 1937 was competent, when offered by appellee in support of the allegations of the answer and counterclaim to the effect that to enforce the specific performance of such contract would be higMy inequitable because the consideration was grossly inadequate.

The evidence discloses that no mention was ever made by Parson to appellee that appellant was in any way interested in buying this property or had anything to do with its purchase. Parson testified that there was no occasion to mention the name of Englestein to Shammo and that he did not do so. Shammo testifies that appellant’s name was not only not mentioned but that it did not appear upon either of the two instruments which appellee signed at the time he, appellee, signed them. In this he is contradicted by Parson and appellant. Appellee, however, was corroborated by Francis Iveye, who testified he looked after and managed this property for appellee, that on April 26, 1937, appellant called him, Keye, over the phone and wanted to know why the deal between him and appellee was not going to be completed, that the witness asked him what interest he, appellant, had in the property, inasmuch as the contract appellee had was with C. M. Anderson, that appellant then said: “it makes no difference whom the contract is signed by, I am the buyer.” This witness further testified that a few days later he stopped in appellant’s store and appellant there said to him that he, appellant, had told Parson to go out and get Shammo’s signature to a contract for the sale of this property and then bring the contract back to him and he, appellant, would then sign it and give him a check. Appellant denied a part of this conversation and testified that he gave the Parson Agency a check for $100 about two weeks prior to April 24,1937, when he had offered to buy the property for $7,250, that this check was returned to him on April 24, 1937, when he gave them another check for the same amount. Appellant testified he had not been able to locate that check and counsel for appellant makes the following notation at the conclusion of the abstract of the testimony of the witnesses: “At this stage of the trial the $100 Englestein check had not been located. It was stipulated that in the event the same was found, it might be included in the record.”

The testimony of Parson and Englestein is that the offer of Englestein to purchase was signed by appellant on April 24, 1937, and Parson accepted on that day appellant’s check for $100. Parson testified that thereafter, but on the same day and before Parson ascertained from appellee whether he would accept the offer of appellant, he, Parson, accepted another identical offer from C. M. Anderson and accepted another $100 from him to apply upon the purchase price of this same property. No explanation for this is found in the record and the only explanation as to why Parson left with appellee the Anderson offer and stated to appellee that it was his copy of the instruments he had signed and made the notations thereon about paying for the continuation of the abstract is that a mistake must have been made in picking up the papers. We have read all the evidence in this record and are of the opinion that there was a mistake, perhaps an intentional one, made. From all the evidence it is apparent that there was a studied effort upon the part of Parson, to withhold from appellee the fact that appellant was seeking to become the purchaser of this property. Appellant at least acquiesced therein. Anderson never testified upon the hearing and if he made this offer-lie never contacted appellee. Prom all the evidence it is apparent the minds of the parties to this purported contract never met. The conduct of Parson, as disclosed by this record, leads to the conclusion that he was not in fact representing appellee. The decree is supported by the' evidence and will he affirmed.

Decree affirmed.


author: Mr. Presiding Justice

text:
    Mae Smith, Appellant, v. C. Frank Raup, Appellee.
    Gen. No. 9,319.

      Opinion filed June 22, 1938.
    J. E. Goembel and B. Jay Knight, both of Rockford, for appellant; Walker F. Hull, of Rockford, of counsel.
    Madden & Laden, of Rockford, for appellee.
   Mr. Presiding Justice

Dove delivered the opinion of the court.

Between 6:30 and 7 o ’clock on the evening of January 2, 1937, Mae Smith, while walking in a westerly direction across Boclcton avenue on the northerly side of the intersection of that avenue and Acorn street, in the city of Bockford, was struck by an automobile owned and being driven by 0. Frank Baup. To recover for the injuries which she sustained, this suit was instituted. After the issues had been made up, the cause was submitted to a jury, resulting in a verdict finding the defendant not guilty. After overruling a motion for a new trial, judgment was rendered on the verdict and plaintiff appeals.

The errors relied upon for reversal are that the verdict is the result of passion and prejudice, is manifestly against the weight of the evidence, was due to improper argument of counsel, to an error in the introduction of evidence and to the refusal of the trial court to give certain proper instructions offered by appellant.

The evidence discloses that appellant, at the time she was injured, was 56 years of age and was employed at the Wyman Street Delicatessen, that she had alighted from a bus at the southeasterly corner of the intersection of Rockton avenue and, Acorn street. She walked north across Acorn street to the sidewalk along the northerly side of Acorn street and then turned west to cross Rockton avenue. The bus upon which she had been a passenger had left the intersection and proceeded north on Rockton avenue. The evening was cold, the wind was blowing and appellant was holding her hat on with her left hand with her head partially protected by her coat. Appellant testified that as she started west across Rockton avenue she looked and saw one car to her south coming north, that she passed in front of this car and it did not stop but proceeded north on Rockton avenue. According to her testimony, just as she reached the street car tracks in the center of Rockton avenue, appellee’s car, which had been hidden from her view as it was behind the first car, swerved to the west in order to pass the car which she had observed and in so doing she was struck by the bumper of appellee’s car, thrown into the air and came down on the headlight, sustaining severe injuries.

Appellee was driving a Chevrolet coach sedan occupied by his daughter, who was riding in the front seat with him. They both testified that as they proceeded north along Rockton avenue, another car came from the east, going west on Acorn street, that it stopped at the intersection and then proceeded through the intersection before appellee’s car entered the intersection. They both testified that they were not following any car and that no other car was ahead of them and they did not attempt to pass any car; that when appellee’s car entered the intersection, it was going 20 to 25 miles per hour. Appellee testified that when he first saw appellant she was about 10 feet from him, that she was then 6 or 8 feet west of the east curbing on Rockton avenue, that he was proceeding along his proper- traffic lane and that he immediately applied his brakes' and turned to the left in order to avoid hitting appellant, that when his car struck her he was travelling 5 to 8 miles per hour and after the collision his car only proceeded a few feet and that the right headlight of his car came in contact with appellant.

P. E. Hunter testified on behalf of appellee to the effect that he was engaged in the life insurance business and that his car was parked on Rockton avenue north of Acorn street about 35 feet from the place of the accident, that he was standing on the left side of his automobile and looking south, that he observed appellant as she was proceeding across Rockton avenue, and that appellee’s car was about 15 feet from appellant when he first observed her and noticed appellee’s car, that after appellant was struck, appellee’s car did not proceed more than 3 or 4 feet, that appellant fell in front of the car and her body lay on Rockton avenue, 3 or 4 feet north of the north sidewalk line of Acorn street if extended westerly across Rockton avenue, and some 10 or 12 feet west of the east curb of Rockton avenue: This witness testified that there was no other automobile in sight at the time of the accident, that he did not see any automobile in front of appellee’s car and did not see any car going west at the intersection.

Ivar Johnson testified on behalf of appellant that he was a police officer and that after the accident he went to the hospital to which appellant was taken and there had a conversation with appellee in which he stated that a car had passed in front of him before he reached the intersection, that appellant had stepped from the curb and proceeded to walk across the street with her head down and stepped right into the path of his car and he didn’t see her until he was on top of her. Stanton Kreger testified on behalf of appellant to the effect that he was also a police officer in Rockford and went to the Rockford hospital after the collision and that appellee there said to him that he did not see appellant until it was too late for him to put on his brakes and avoid hitting her.

Following the collision appellant was not unconscious. Appellee immediately stopped his car and assisted her therein and took her to the Rockford hospital where she remained over night and was then taken to the home of her sister-in-law, where she was confined to her bed for three weeks. Rockton avenue, it was stipulated, was a through street so designated by ordinance and there was an electric arc light at the intersection in question, which was burning, and the electric headlights on appellee’s car were lighted. All the evidence is that there were no automobiles coming from the north going south and none coming from the west going east and the weight of the evidence supports appellee’s version that he was not following any car which was proceeding in the same direction he was going and that he did not pass or attempt to pass any automobile just before his car struck appellant. The evidence of appellee and his daughter is that appellant on the way to the hospital stated that she did not see appellee’s car or any car coming. Appellant denied saying this. She did testify, however, that, as she proceeded across Rockton avenue, she was holding her hat on her head with her left hand and that her coat was partly pulled up over her head. All the evidence is that appellee was proceeding along a through street with his car under control and it responded promptly when the brakes were applied. From a review of all the evidence in this record, it is apparent that the verdict of the jury is not manifestly against the weight of the evidence.

Counsel for appellant called appellee as an adverse witness under section 60 of the Practice Act [Ill. Rev. Stat. 1937, § 184, ch. 110; Jones Ill. Stats. Ann. 104.060] and during the course of his examination he testified without objection that after the accident and before starting for the hospital, appellant asked him if he carried insurance. Upon his direct examination, when called as a witness in his own behalf, appellee testified that before starting for the hospital the only remark appellant made was to inquire of him whether he had insurance, her attorney objected and the court stated that the witness had already testified to the same thing upon cross-examination. The objection was overruled and appellee answered that in reply to appellant’s inquiry as to whether he had insurance, he said “No.” Counsel for appellant, in their argument, state that counsel for appellee began at an early stag*e of the trial and persisted in, during the course of the trial, a determined effort to inform the jury that appellee carried no liability insurance on his automobile and argue that judgments have frequently been reversed when testimony has been introduced which informs the jury that one of the parties has or has not liability insurance and cites in support of this statement Wiersema v. Lockwood & Strickland Co., 147 Ill. App. 33, and Emery Dry Goods Co. v. DeHart, 130 Ill. App. 244. These cases hold that it is improper to show that the defendant is insured against loss in case of a recovery against the defendant on account of his negligence. What is said in those cases and many others that might be cited has ho application here. Indemnity insurance is very generally carried by automobile owners and drivers. In the instant case, the jury learned of the fact that appellee did not carry such insurance as a result of appellee and his daughter testifying as to the reply which appellee made to an inquiry of appellant. If appellee had not been permitted to state his answer to appellant’s question, the jury could have inferred that any verdict which they returned, if in favor of appellant, would have to be paid by an insurance company. This court recognizes that the belief is prevalent and widespread that in cases of this character the defendant is really the nominal party in interest and that the real defendant, whose pecuniary interest is at stake, is an insurance carrier and no valid reason has been suggested by counsel or occurs to us why appellee, in the instant case, should be precluded from proving, if such was a fact, that he himself would be pecuniarily affected by any verdict that might be returned against him. The trial court committed no error in admitting this evidence.

During the course of his argument to the jury, one of appellee’s counsel stated that it was to be regretted that any one gets hurt in an automobile accident but that was no reason why the jury should take money out of appellee’s pocket, whom counsel referred to as one of our citizens and a laboring man. An objection to this argument was sustained, the court stating that there was nothing in the evidence upon which to base the statement. Counsel insist that this argument was highly prejudicial and call our attention to Williamson v. Hirsh, Stein & Co., 147 Ill. App. 500; Kurtz v. Evans, 201 Ill. App. 180 and Westbrook v. Chicago & N. W. Ry. Co., 248 Ill. App. 446. The testimony of appellee was that he was transportation manager for Hess and Hopkins Leather Company. The argument condemned in the cases cited alluded to or contrasted the wealth or poverty of the respective parties. All that counsel stated here was that appellee was a laboring man. This is the only objection made during- the entire course of counsel’s argument. The objection was promptly sustained, no further reference to appellee’s employment ivas made by counsel and if the argument was unwarranted by the evidence, appellant’s rights were not prejudiced thereby.

At the request of appellant the court gave to the jury ten instructions and refused four and it is insisted that the court erred in declining to give each of these four instructions. The first refused instruction told the jury that the weight to be given to the testimony of any witness was for the jury to determine and stated that they might take into consideration among other things the relationship of any witness to any of the parties. The only witness who testified was the daughter of appellee and an instruction should not single out or call attention to the testimony of any particular witness. Furthermore, appellee’s second given instruction correctly stated the rule. Appellant’s refused instruction number two was covered by her tenth given instruction. Befused instruction number three was properly refused. A portion of the first paragraph in its reference, to appellee’s duty to avoid striking other automobiles on the highway was not applicable to the facts in this case and appellant’s ninth instruction covered everything that was properly embraced in this third refused instruction and appellant’s given fourth instruction covered fully and adequately the rules of law sthted in refused instruction number four.

We have read all the evidence as abstracted by counsel for appellant. The issues made by the pleadings were submitted to the jury under proper instructions. In our opinion the verdict was warranted by the evidence. The trial court approved it. No reversible error is found in the record and the judgment will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Hueeman

text:
    In the Matter of Estate of Andrew J. Maloney, Deceased. In re Claim of Edgar Godwin, Appellant.
    Gen. No. 9,303.
    Opinion filed June 22, 1938.
    Runyakd & Behanna, of Waukegan, for appellant; Eugene M. Runyard and Fred B. Meyer, of Waukegan, of counsel.
    Frederic Ullmann, of Chicago, and Frank Opeka, of North Chicago, for appellees.
   Mr. Justice Hueeman

delivered the opinion of the court.

Edgar Godwin, appellant, filed his claim against the estate of Andrew J. Maloney in the probate court of Lake county. The claim was based upon three notes secured by a trust deed. The indebtedness was alleged to be that of the said Andrew J. Maloney. The claim was heard by the probate court and allowed in the amount as filed, $29,394.12. The estate prosecuted an appeal to the circuit court of said county, where the cause was heard by the court and the claim denied. The claimant prosecutes this appeal from the judgment of the circuit court dismissing his claim.

The evidence in this case is not in dispute. The estate offered no oral testimony. It appears that in the summer of 1925, the claimant was then residing on his farm in said county. He was acquainted with Andrew J. Maloney. John H. Bouse and Bichard Lyons were engaged at the time in the real estate business under the firm name of Lyons & Bouse. Mr. Bouse was also cashier of a bank at Mundelein. Mr. Maloney, in April, 1925, went to the office of the above real estate firm and announced that he desired to purchase the Godwin farm because he had information that Mr. Samuel Insull intended to effect the acquisition of this farm for the purpose of a golf course. Mr. Maloney further stated that he knew of Mr. Insull’s plan, that there was an opportunity for him to make a large profit as it would be necessary for Mr. Insull to have this farm in carrying out his plan, but that he did not want Mr. Insull to know he had anything to do with the deal. Prior to this time this real estate firm had negotiated the purchase of other farms for Mr. Maloney.

During the above visit of Mr. Maloney to the office of Lyons & Bouse, Mr. John H. Bouse, a member of the real estate firm, called his uncle, Bobert F. Bouse, into the conference with Mr. Maloney and asked his uncle if he would take title to the farm for Mr. Maloney, as Mr. Maloney stated he did not want to be known in the deal. The uncle agreed to this accommodation, whereupon Mr. Maloney issued his check for $1,500, to be used as a down payment in the purchase of appellant’s farm. Mr. Maloney signed a purchase contract and requested that nothing be said about it as he did not want Mr. Insull to know that he was trying to buy the property. The down payment advanced to Mr. Rouse was paid to appellant, a survey of the farm was made, the abstract brought -down to date and delivered to Mr. Maloney for his examination. Subsequently, and on July 27, 1925, a deed to the premises from appellant Godwin and wife was made to Mr. Robert F. Rouse and wife, and a deed from them to Mr. Maloney was executed and placed in escrow awaiting a trust deed, notes, and interest coupons to be executed and delivered before the final consummation of the transaction.

The trust deed by Rouse and wife was executed under date of November 30, 1925. It described the farm of appellant, described four principal notes, of even date, payable on or before five years thereafter, three of such notes for the principal sum of $10,000 each and one for the principal sum of $1,500, all bearing interest at 6 per cent as evidenced by interest coupons. A second mortgage for the same premises was executed by Mr. Maloney, of the city of Chicago, to Mr. Lyons for the sum of $7,900, such indebtedness evidenced by two notes, one for $5,000 and one for $2,900, both due 5 years after date with 6 per cent interest. This mortgage discloses that it was made subject to the prior trust deed of November 30, 1925, executed by Rouse and wife in the sum of $31,500, and due on or before 5 years from November 30, 1925. Mr. Maloney executed this second mortgage under date of December 1, 1925. It appears that approximately $18,000 was paid in cash on the purchase price of the farm and that about $3,000 of this sum went to Lyons & Rouse as commission, and the balance to appellant Godwin. It further appears that the execution of the second mortgage by Mr. Maloney to Lyons, together with the $3,000 cash received by the real estate firm, represented its commission for negotiating the deal. The insurance policy on the property was assigned to Mr. Maloney. TMs policy expired soon after the consummation of the deal and a new three-year policy was issued to Mr. Maloney under date of December 22,1925, on the buildings located on said premises.

The evidence on behalf of appellant is to the effect that Mr. Maloney did not want to sign the first trust deed and notes because he did not want Mr. Insull to know that he was the owner of this land. It does not appear that any of the members of the real estate firm ever took possession of the premises or had anything to do with defraying the expenses incident to the deal; that the transaction was carried on wholly on the account of Mr. Maloney. Mr. Bobert Bouse states that he took no possession of the property nor exercised any acts of ownership over the same; that he never paid anything on the principal or interest; that he had nothing to do with the transaction except permitting his name to be used as an accommodation; and that he had no knowledge of an extension agreement of the trust deed which was executed at its maturity, and that he was not a party to such extension.

It appears that on November 30, 1930, 5 years after execution of the trust deed, that articles of agreement were entered into • between appellant Godwin as the owner and holder of the notes, and Andrew J. Maloney, as the owner of the premises described in said trust deed, wherein by the terms of. said agreement the entire transaction involved in this proceeding is recognized, identified and set out, disclosing the trust deed as executed by Mr. Bouse together with the recording thereof. The extension agreement then recites that the notes under the trust deed are due and that Mr. Maloney as owner of the premises desires to renew the unpaid portion of the indebtedness for another 5 years. It then recites that Mr. Maloney has paid on the principal indebtedness under the trust deed, sufficient sums to leave á present balance due of $26,000, and it is recited that as to this amount an extension is granted for a period of 5 years from November 30, 1930. This extension agreement was executed by appellant Godwin and Mr. Andrew J. Maloney. In addition thereto, certain interest coupons were also executed by Mr. Maloney covering payment of interest during the extension agreement period.

Mr John H. Bouse testified that he was engaged in the real estate business and resided in Mundelein; that he was also cashier of the bank in said city; that he held a license as a real estate broker and was engaged in business with Mr. Richard Lyons under the firm name of Lyons & Rouse; that he was acquainted with Mr. Maloney and assisted in the purchase of Godwin’s farm in 1925; that prior to that time he had purchased other farms for Mr. Maloney. He states that Mr. Maloney came to their office in Mundelein about the last of April or first of May in 1925, and advised them that he desired to purchase the Godwin farm; that he had inside information that Mr. Samuel Insull was going to purchase this farm along with others for the purpose of laying out a golf course, and that there was a chance to make some money if he could get -the God-win farm, and asked this witness to find someone to take over the title for him. The witness states that he summoned his uncle, Mr. Robert F. Rouse, and in the presence of Mr. Maloney advised his uncle what Mr. Maloney wanted to do; that his uncle agreed to hold the title for Mr. Maloney; that Mr. Maloney drew his check for $1,500 and left it with them as a down payment on the farm. The witness :.then states that he drew a contract which he took down to Mr. Maloney on the next day or two following this Conference, and that he signed it and requested the witness to say nothing about it, as he did not want Mr. Insull to find out he was trying to buy the property. The witness states that about a year prior to the commencement of this litigation, lie cleaned out Ms safe and destroyed all old papers wMch were no longer considered worth keeping1 ; that this contract was about 10 years old and that he did not consider it of any consequence. He states that appellant had a joint stock land bank mortgage on his farm for about $8,000 and that at the time of the consummation of the transaction, this mortgage was paid off; that the money was obtained from Mr. Maloney and turned over to Mr. Godwin; that the purchase price to be paid Godwin was approximately $48,000, payable about one-third in cash and the balance on a mortgage. The witness states that at the time of the closing of the transaction, Mr. Rouse, Mr. Lyons, Mr. Godwin, Mr. Andrew J. Maloney and his brother, Francis Maloney, were all present. Mr. Maloney’s brother, Francis, received a part of the commission growing out of the deal. The witness states that $18,000 was paid by Mr. Maloney at the time, $3,000 of which was retained by the real estate brokers and the balance paid to Mr. Godwin, and that this meeting of the parties, being the final consummation of the deal, took place during the first part of December, 1925. It appears that Mr. Maloney drew a check on December 4, 1925, in the sum of $15,000, payable to himself, and indorsed by him to the order of the State Bank of Mundelein. A previous check for the sum of $3,000 had been drawn by Mr. Maloney payable to himself and indorsed to the order of his brother Francis, and by Francis indorsed to Mr. Rouse. The testimony of this witness is in detail in respect to the transaction, the execution of the notes and mortgages incident thereto, and the payment of money at various times by Mr. Maloney in the way of checks. The testimony of Mr. Robert F. Rouse was similar to that of Mr. John H. Rouse.

The testimony of the witness, Ernest Godwin, Jr., is to the effect that in the year 1925, he was living on the farm with his father, the appellant; that he saw Mr. Maloney about the first of June, 1925, at the farm; that Mr. Maloney stated to him and his father, “I am Mr. Maloney. I am the man that bought your farm. ’ ’ This witness says that Mr. Maloney asked his father if he had received the down payment check and that his father said he had. The witness states that about November of the same year, Mr. Maloney came out to the farm for the purpose of renting it to them. It appears that Mr. Maloney did by lease under date of February 1, 1926, rent a portion of the farm to appellant for a period of one year extending from March 1, 1926, to February 28, 1927, for a cash rental of $300. This lease covered only the land upon which the house, barn and other buildings were located, together with an orchard and garden tract.

The witness, George Smith, testified that he was at the premises when Mr. Maloney came out and advised appellant that he had bought his place; that he heard him ask about the soil and about the lake which joined the premises; that this lake was known as Insull Lake and that the Insull farm was about 80 yards away from the Godwin farm. The witness also stated he heard Mr. Maloney ask Mr. Godwin if he had received a check and that Mr. Godwin replied that he had. He further states that Mr. Maloney asked Mr. Godwin if he understood that the final payment should be in November and that Mr. Godwin replied that he did. This witness saw Mr. Maloney at the farm later in the year.

The trial court in its remarks with reference to the disposition of this case states: “The record affirmatively shows that at the time of the purchase, Maloney wanted to avoid personal liability and had the real estate agents select a nominal purchaser for the purpose of avoiding personal liability,” arid further, “There was nothing unlawful in Maloney avoiding personal liability.” It is the position of appellee that the decedent, Mr. Maloney, did not become liable for the indebtedness as the real party in interest, that the application of equitable principles cannot change the fact that Mr. Maloney did not intend to become personally liable for the purchase price of the land, and under the authority as announced in Nelson v. Zemans, 275 Ill. App. 447; Elkhart State Bank v. Schlarman, 270 Ill. App. 440; Shiel v. Chicago Title & Trust Co., 262 Ill. App. 410, and by force and effect of sec. 18 of the Negotiable Instruments Act [Ill. Rev. Stat. 1937, ch. 98, § 38; Jones Ill. Stats. Ann. 89.038], he not having signed the notes in question, cannot be held liable. The above cases and points urged by appellee were favorably considered by this court in the case of Bride v. Stormer, 291 Ill. App. 502. This case was reversed by the Supreme Court in 368 Ill. 524. The facts in the instant case do not vary fundamentally from those that existed in Bride v. Stormer, supra. Therefore, the expression of the Supreme Court in that case is controlling herein.

It has long been the rule that probate courts are invested with equitable powers in the consideration and allowance of claims. Henry v. Caruthers, 196 Ill. 136, 141; Foreman-State Trust & Savings Bank v. Tauber, 348 Ill. 280, 285; In re Estate of Gillen, 288 Ill. App. 436, 440; In re Estate of Kinsey, 261 Ill. App. 481, 487; Trego v. Estate of Cunningham, 267 Ill. 367, 373-375.

The judgment of the circuit court is reversed and this cause remanded with directions to enter judgment for appellant upon his claim, to be paid in due course of administration.

Reversed and remanded with directions.


author:
Mr. Presiding Justice McSurely
      Mr. Justice O’Connor dissenting:

text:
    Chicago Title and Trust Company et al., Appellants, v. Jacob L. Kesner et al., Appellees.
    Gen. No. 39,704.
    O’Connor, J., dissenting.
    Opinion filed June 30, 1938.
    Rehearing denied July 12, 1938.

      Wilson & McIlvaine, of Chicago, for appellants; J. F. Dammann, K. F. Montgomery and John P. Wilson, Jr., of Chicago, of counsel.
    D’Ancona, Pflaum & Kohlsaat, of Chicago, for certain appellees.
    Pope & Ballard, of Chicago, for certain other appellees ; Herbert Pope, Beverly B. Vedder and Ferris E. Hurd, of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In a consolidation of the above entitled cases a decree of foreclosure was entered which, among other things, held that the sale of the properties foreclosed should be free and clear of certain long term leases which were decreed to be of no further force and effect. Plaintiffs appeal from so much of the decree as holds that the leases are not in full force.

Plaintiffs say that the leases at the time the foreclosure bills were filed were in full force and effect, as shown by the intention of the parties expressed in their writings, and that no acts of any of the parties worked a release from liability of the original lessees.

Defendants say that defendant Kesner became both lessor and lessee and that the liabilities nnder the lease were wiped out by merger, extinguishment and the rule of suretyship.

The properties in question consist of two lots, hereafter described as lots “A” and “B,” on the south side of Adams street between State and Dearborn streets, in Chicago. The owners of the two lots are in effect the same. James Boss Todd was the owner of the fee of lot ‘ ‘ A” and was a life tenant of lot “B” under the will of his father. Todd, hereafter referred to as the owner of the two lots, in 1909 made a 99-year lease of both properties to Augusta Lehmann, Emilie W. Peacock, Edward J. Lehmann, Augusta E. Speis, Otto W. Lehmann and Edith M. Lehmann for a total annual rental of $20,000. These lessees will hereafter be called the Lehmanns.

In 1929 the Lehmanns wished to assign their interest in the lease to Jacob L. Kesner. Some question arose as to the validity of a lease of lot “B” in which Todd had only a life interest, so on petition the court appointed a trustee, authorized to execute a new lease to the Lehmanns for the unexpired term of the old lease.

May 20,1929, the old 1909 lease was canceled and two new leases were made for the unexpired term, running to the Lehmanns. Both leases wére identical except with reference to descriptions of the parties and the lots. Both leases provided that as security for the payment of the rents the lessees would erect a building on both lots at a cost of not less than $150,000, to be constructed and ready for occupancy not later than August 1, 1932.

The leases also provided that the lessees would deposit with the First Trust and Savings Bank, as trustee, $150,000 as additional security for the obligations of the lessees under the leases to construct the building, upon completion of which this amount was to be returned to the lessees. Both leases permitted an assignment by the lessees of their interest, with a provision that the original lessees should be released from further obligations thereunder provided the construction of the building above referred to was completed. The leases also required the lessees to keep all buildings located on the lots insured against loss by fire and to place all insurance policies with the First Trust and Savings Bank as trustee.

The new building provided for in the leases was not constructed at any time.

May 20, 1929, the interest of the Lehmanns in the leases was duly assigned to Kesner. In payment for this interest Kesner paid a certain amount in cash and the balance by his note for $400,000, made payable to the Lehmann estate. This was secured by a purchase money leasehold mortgage conveying the leasehold estates created by the leases, and providing for foreclosure and sale in case of default.

In February, 1930, after Kesner had been in possession of the property for nearly nine months, he negotiated with Todd for the purchase of the fees to the lots, and this was consummated by the execution and delivery of warranty deeds by the owners to Kesner. Bach deed contained the provision that it was subject to the leases to the Lehmanns, expiring July 31, 2008, and all their other terms and conditions. At the same time the owners executed written assignments conveying to Kesner all the lessors’ interest in the Lehmann leases. These assignments also conveyed the lessors’ interest in and to all moneys and insurance policies deposited with the First Trust and Savings Bank.

Simultaneously with the execution and delivery of the deeds and assignments to Kesner, he delivered his notes aggregating $350,000 for the balance of the purchase price, and to secure them executed and delivered trust deeds to the Chicago Title and Trust Company as trustee conveying the fees. The trust deeds are also made subject to the leases from Todd to the Lehmanns for the term ending July 31, 2008. They also conveyed the rents, issues and profits. These are the trust deeds which are being foreclosed.

After Kesner acquired title to the fees the $150,000 deposited as security for the erection of the building heretofore referred to was withdrawn from the First Trust and Savings Bank by Kesner. There is no proof that plaintiffs knew this was done.

Kesner, thus being the assignee of the leasehold and also the owner of the fees, paid no rent.

August 6,1932, defaults occurring in the payments of interest on Kesner’s notes secured by the purchase money mortgages on the real estate, plaintiffs declared the entire debts due and the two foreclosure bills were filed and a receiver of the property was appointed.

Plaintiffs say the leases are in full force and effect. Kesner answered that the leases had been wiped out when he, as assignee, acquired the fees. The Lehmanns answered asserting, as Kesner did, that the leases had been extinguished, but that any claim or interest which they may have in the property ‘ arises out of the lease ’ ’ and that such claim is superior to the rights of the plaintiffs.

October 11,1934, the cases were referred to a master in chancery who forthwith proceeded to take testimony. At a hearing in January, 1935, defendants introduced testimony that the promissory note for $400,000, representing part of the purchase price of the leasehold interest by Kesner from the Lehmanns, had on January 7, 1935, been presented by one of the Lehmanns owning the note to the Chicago Title and Trust Company, trustee under the purchase money mortgage of the leasehold estate, with a request that the trustee release the trust deed, which was done. The trust deed was released and canceled and the release recorded.

The Lehmann defendants in their brief admit that there was no formal cancellation of the leases, and that from May, 1929, when Kesner acquired the leasehold estate from the Lehmanns, to February, 1930, when he acquired the fee, both Kesner and the Lehmanns were liable for the rent;- that “The Lehmanns were liable by reason of privity of contract . . . and Kesner was liable by reason of privity of estate.” This narrows the question as to the effect of the transaction whereby Kesner acquired the fees.

We hold that no merger resulted when Kesner, assignee from the Lehmanns, obtained the fee title to the properties, but that the writings of the parties executed at the time show it was their intention that the leases should continue in full force and effect.

Whether or not a merger takes place is largely a matter of intention of the parties. In Hooper v. Goldstein, 336 Ill. 125, 132, the court said:

‘ ‘ But a merger is not a necessary result of the union of the two estates in the same person. The intention and interest of the party who unites the two estates in himself will determine whether or not a merger takes place.” In Richardson v. Hockenhull, 85 Ill. 124, 125, it was held that the question of merger ‘ ‘ is always one of intention. The interest of the parties and intention are to be the controlling considerations.” See also the recent case of Continental Ill. Nat. Bank & Trust Co. v. Cunningham, 291 Ill. App. 180, 186, in which the opinion quoted from Moffet v. Farwell, 222 Ill. 543, to the effect that whether a merger results from the uniting of two estates in the same person “depends upon what will best subserve the purposes of justice and the intention of the parties, and in determining the question the interests and intention of the parties are the controlling considerations. ’ ’

Inspection of the warranty deeds and the trust deeds in connection with the conveyance of the fees to Kesner shows that each states that it is subject to the Lehmann leases, describing them in detail and as ending July 31, 2008; and in each of the trust deeds it was provided that, “it is specifically understood and agreed that until the above described lease shall be canceled and terminated” certain provisions with reference to insurance policies should not be effective. All of these provisions clearly express an intention that the leases should continue. The brief for the Lehmanns admits that no merger of the leaseholds and fees took place in 1930, when Kesner acquired the fees. This makes it unnecessary to further discuss this point, as the Lehmanns are the principal parties which plaintiffs seek to hold as lessees under the leases.

The position of the Lehmanns is, that the reason why there was no merger in 1930, when Kesner acquired the fees, was that they held Kesner’s note of $400,000, secured by a mortgage trust deed upon the leasehold estates, and a leasehold estate cannot merge into a fee when there is an interest in the lease outstanding in a third person. It should be remembered that on January 7, 1935, at the request of the owners of Kesner’s note, the trustee released the lien of the leasehold mort-' gage, although apparently the note itself was not canceled. The Lehmanns claim that this release had the effect of extinguishing the leasehold estates.

It would seem somewhat anomalous to say that removing a lien on a leasehold terminated the leasehold itself, but we understand the argument to be that the release of the lien removed the obstacle which prevented the operation of a merger of the leasehold and fee estates.

Counsel for defendants seem to assume that the only outstanding right or interest in the leasehold which prevented an extinguishment was their leasehold mortgage. There was another outstanding interest which also prevented this, namely, the interest of the trustee in the purchase money mortgages of the fees. As we have said, in these mortgages the continuation of the leases to July 31, 2008, was expressly contracted for.

When on August 6,1932, these mortgages were in default and bills to foreclose were filed, the trustee became to all intents and purposes the owner of the fees. Central Republic Trust Co. v. Petersen Furniture Co., 279 Ill. App. 492, 504. No subsequent acts of the parties could change its right to have the terms of the mortgages observed and there could be no extinguishment of the leases by the acts of the Lehmanns. Thomas v. Home Mut. Bldg. Loan Ass’n, 243 Ill. 550, 559.

The Lehmann defendants contend that when Kesner drew down the securities deposited with the savings bank to secure the construction of the building, the contracts and the leases were modified without the knowledge and consent of the Lehmanns, lessees, who stood in the relationship of surety, and that they were thereby released.

This rests upon the erroneous assumption that where there is an assignment of a lease by the original lessee, he stands as suretyfor the assignee, and therefore any change in the contract releases the surety. The Lehmanns by assigning their leases to Kesner were not released from their primary obligation. The provisions of the leases clearly so indicate. An assignment could be made only in accordance with the terms of the leases; these provide that the original lessees are released from further liability to pay rent only when an assignment is made subsequent to the construction of the building referred to. The assignments were made prior to the construction of a building, and no building has ever been constructed. There is also provision for notice to the Lehmanns of any default under the lease after any assignment as long as they remain liable. The obligations of the leases are also made binding upon the lessees and their heirs. The primary obligation of the Lehmanns was not changed by that assignment.

Moreover, the withdrawal by Kesner of the deposits was with the authority of the Lehmanns. Kesner testified that the Lehmanns withdrew their original securities and that he substituted other securities of the same amount at the time the leases were' assigned to him, so whatever Kesner did was with the authority of the Lehmanns.

Furthermore, the surrender of the securities was not made by the lessors. Defendants have stressed the assignment of the leases made by Todd, but these assignments had no greater effect, especially with reference to the securities, than the warranty deeds had.

Among the many cases holding that an assignment by a lessee of a lease does not change his obligation as a principal debtor, are Carrano v. Shoor, 118 Conn. 86, 171 Atl. 17; Luthin v. Parodneck, 140 N. Y. Misc. 129, 250 N. Y. S. 139; Tenison v. Knapp (Tex. Civ. App.), 64 S. W. (2d) 1071; Kirby v. Tips (Tex. Civ. App.), 67 S. W. (2d) 661; Saulpaugh v. Hamilton, 64 Col. 139, 171 Pac. 65; Sutliff v. Atwood, 15 Ohio 186; Wade v. March, 39 Ohio App. 111, 176 N. E. 687. No case has been cited and we find none where the rule of surety-ship has been applied to wipe out the liabilities of the original lessee. We hold that the defense of suretyship cannot be maintained.

We are of the opinion that the leases are in full force and effect and that complainants are entitled to a decree so holding. This would put Todd and the Lehmanns in the same relative positions they were in before Kesner came into the picture. Foreclosure decree should be entered providing for a sale of the properties, namely, the fees, subject to the leases, with all the rights created by them. Plaintiffs also are entitled to an accounting as to the amount or amounts due and owing for rent under the leases, taxes and other payments contracted to be paid by the lessees in the leases, and plaintiffs are entitled to judgment for the amounts so found due against the lessees.

The judgment is reversed and the cause remanded with directions to proceed consistently with what we have held in this opinion.

iReversed and remanded with directions.

Matchett, J., concurs.

Mr. Justice O’Connor dissenting:

I dissent, since no sufficient reason is shown that the right result was not reached by the chancellor.

A few of the controlling facts are that Todd executed 99-year leases on the two pieces of property to the Lehmanns, which leases do not expire until 2008, — about 75 years. Under the terms of the leases the Lehmanns deposited $150,000 of securities with the bank as a guaranty that they would construct on the lots a building costing $150,000, and when so constructed the securities were to be returned to them. The leases further provided that should the leases be assigned all the covenants and agreements of the leases would be binding on the assignee, and that after such assignment the Lehmanns would be forever released and discharged from all obligations of the leases after the completion of the building.

May 20, 1929, the Lehmanns sold and assigned their leasehold interest to Kesner. He made a down payment, the amount of which does not appear, and executed his note for $400,000, the balance of the purchase price, payable to the Lehmanns, payment of which was secured by a mortgage on the leasehold interest. At that time the Lehmanns withdrew the $150,000 securities theretofore deposited by them with the bank, and Kesner substituted other securities to the same amount. Kesner went into possession under the leases and 10 months thereafter, February 6, 1930, purchased the fee from Todd for $500,000, — $150,000 in cash, and trust deeds securing the balance of $350,000 which are here in foreclosure. At the same time Todd assigned his interest in the leases to Kesner. By the assignments, Todd and his wife, “being the owners of the lessor’s interest . . . hereby sell, assign, transfer and convey” to Kesner their interest in the leases “for a term of seventy-nine (79) years and three (3) months . . . together with the lessor’s interest in and to said lease and the leasehold estate thereby created, and in and to all moneys, securities and insurance policies on deposit with the First Union Trust and Savings Bank . . . trustee for insurance and deposits under said lease.” Shortly after the purchase of the fee and the assignment of the leases from Todd, Kesner withdrew the $150,000 securities, insurance, etc., from the bank, as he was authorized to do by Todd, as shown by the assignment from which I have quoted.

After Kesner purchased the fee and took an assignment of the leases from Todd, obviously he paid no rent, being the owner of the leasehold and the fee; there was no rent to pay nor any one to whom it should be paid. The trust deed from Kesner securing the $400,000 mortgage on the leasehold conveyed not only the leasehold interest, but the rents, issues and profits of the property. The trust deeds from Kesner to Todd, of the fee, contained a similar provision. The Lehmanns had a lien of $400,000 on the property for about 75 years, which was prior to the lien of the $350,000 due Todd. But the effect of the majority opinion is to give Todd a first lien on all of the property, leasehold and fee, although not one cent has been paid on the $400,000 mortgage. Not only this, but the Lehmanns, in addition to losing their $400,000, are held liable for the rent. Such a result, in my opinion, is obviously wholly inequitable. The Lehmanns were, in my opinion, released of all liability under the leases when after the assignment by them to Kesner he took down the $150,000 as authorized by Todd.

A great deal is said in the briefs filed by able counsel for all parties, as to whether the 99-year leases were still in effect, or whether that interest had merged with the fee when Kesner purchased the property and took an assignment of the leases from Todd. Any discussion of the law or the authorities “will plunge this branch of the law into a Serbonian Bog.” Landress v. Phoenix Mut. Life Ins. Co., 291 U. S. 499. It will also plunge court and counsel into a “Serbonian Bog.”