text:
    James A. Farrand, Appellant, v. Deihl Yates et al., Appellees.
    Gen. No. 8,152.

      Opinion filed January 25, 1928.
    Paul F. Grote, for appellant.
    Lee Capps, guardian ad litem, and Capps & Weaver, for adult appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.

Upon a hearing had in the court below upon the bill of complaint, answers, replications and evidence heard before the chancellor, a decree was entered dismissing the bill for want of equity, to reverse which this appeal is prosecuted.

It is charged in the bill, in substance, that on April 7, 1896, Ann Hopkins was the owner in fee of certain real estate in Pike county, containing 58 acres; that on April 7, 1896, said Ann Hopkins and her husband, Benjamin B. Hopkins, conveyed said lands, by warranty deed, to complainant, James A. Farrand (appellant) ; that on April 1, 1896, M. Lavina Yates and Monroe Yates, her husband, brought suit in the circuit court of Pike county against said Ann and Benjamin Hopkins to recover $5,000; that said Farrand had at that time $2,800 invested in said real estate ; that all said parties admitted that said Farrand had said interest in said real estate; that said M. Lavina Yates was a sister of Ann Hopkins, who with her husband, Benjamin, were, at that time, between 55 and 60 years of age and in straitened financial circumstances ; that said M. Lavina Yates and Monroe Yates, in order to render financial aid to. said Ann and Benjamin Hopkins, to protect the said interest of said Far-rand and to end said litigation, did, on April 14,1898, enter into and execute an agreement, in writing, signed and sealed by said M. Lavina Yates and Monroe Yates, her husband, a.copy of which marked Exhibit “A” is attached to and made a part of the bill; that on April 14, 1898, Farrand, a single man, as part of said arrangement, agreement and transaction, conveyed said real estate to said M. Lavina Yates, by quitclaim deed; that in and by the terms of said arrangement, agreement and transaction, the said Farrand retained a vendor’s lien against said real estate for the said, sum of $2,800; that a life estate in said real estate was reserved for said Ann and Benjamin Hopkins; that said Ann and Benjamin Hopkins were to pay the taxes, keep up necessary repairs and keep insured the house and barn on said real estate; that interest on said $2,800 was to be paid by said Ann and Benjamin Hopkins to said Farrand; that said Ann and Benjamin Hopkins should have all the time they desired to pay said indebtedness of $2,800; that said M. Lavina Tates and Monroe Tates should not become liable for insurance, taxes and interest during the lifetime of the said Ann and Benjamin Hopkins; that upon the completion of said arrangement, agreement and transaction, the said suit pending in the circuit court of Pike county should be dismissed, and said suit was dismissed; that M. Lavina Tates died intestate January 3, 1904, leaving Monroe Yates, her husband, and Thomas M. Yates, a son, and Margaret Yates, now Margaret Parker, Jefferson O. Yates and Deihl Yates, children of a deceased son, George Yates, as her only heirs; that Monroe Yates died many years ago; that Thomas M. Yates died intestate, December 3, 1916, leaving Margaret T. Yates, his widow and Marianne Yates, his daughter, as his only heirs; that on December 14, 1925, Jefferson O. Yates and Maybelle Yates, his wife, conveyed their interest in said real estate to Margaret T. Yates; that said Ann Hopkins died several years ago; that Benjamin B. Hopkins died February 4,1925; that during the lifetime of said Ann and Benjamin Hopkins they kept the buildings on said real estate insured and paid taxes thereon; that by reason of said agreement, in writing, executed by M. Lavina Yates and Monroe Yates, her husband, and said deed from Farrand to M. Lavina Yates, and the death of said Ann and Benjamin Hopkins, Farrand, complainant, was entitled to have the said $2,800 paid- to him, or to supply the same by the sale of said real estate, or so much thereof as might be necessary to raise the said amount so due said Farrand; that by reason of the death of said M. Lavina Yates and Monroe Yates, and the death of said Thomas M. Yates and the said deed from Jefferson O. Yates and wife to Margaret T. Yates, the said Deihl Yates, Margaret Parker, Marianne Yates and Margaret T. Yates, have become and now are the owners, in fee, of said real estate, subject to said $2,800 and interest thereon at the lawful rate, from February 4,1925, the said Marianne Yates being the owner of an undivided one-half thereof, subject to the dower therein of Margaret T. Yates, and the said Deihl Yates, Margaret Parker and Margaret T. Yates being each the owner of an undivided one-sixth thereof; that no part of said $2,800 due complainant was ever paid; that no interest on said $2,800 has been paid since February 4, 1925; that no note was ever given for said $2,800; that there is now due Farrand, complainant, $2,800 and interest at the lawful rate, from February 4, 1925, no part of which has been paid, and that complainant is entitled to foreclose his said lien; prays that defendants, Deihl Yates, Margaret Parker, Marianne Yates and Margaret T. Yates, may be decreed to pay to complainant what may be found to be due him upon taking an account by a short day or in default thereof that said real estate, or so much thereof as may be necessary, be sold under the direction of the court to pay the debt due complainant, and costs, etc.

An answer was filed for the minor defendant, by the guardian ad, litem, and the defendants, Deihl Yates, Margaret Parker and Margaret T. Yates, filed their joint and several answer. In this joint and several answer it is denied that at the time Ann and Benjamin Hopkins conveyed the real estate in question to complainant, James A. Farrand, that the latter had the sum of $2,800 or any other sum invested in said real estate; denied that said M. Lavina Yates and Monroe Yates, her husband, ever signed, sealed or delivered Exhibit “A,” attached to complainant’s bill, and denied that said supposed agreement was ever executed by said Farrand, Ann and Benjamin Hopkins, M. Lavina Tates and Monroe Yates; they admit that Farrand conveyed said real estate to M. Lavina Yates by a quitclaim deed, but expressly deny that said deed was made as a part of said arrangement, agreement or transaction, but aver that said deed was the only arrangement, agreement and transaction between the complainant and said M. Lavina Yates and Monroe Yates, and that a copy of said deed, marked Exhibit “1,” is attached to and made a part of the answer; they deny the execution of said agreement marked Exhibit “A” and made a part of the bill of complaint by the said M. Lavina Yates and Monroe Yates, deny that said real estate is subject to a lien for said $2,800, and interest thereon from the date of the death of said Benjamin Hopkins, but aver that said indebtedness, if the same ever existed, has long since been barred by the statute of limitations and that the same did not accrue or arise more than ten years before said bill of complaint was filed and that said defendants did not, at any time, within ten years before "the filing of the complainant’s bill, ever promise or agree to come to any account for or to pay, or in any way satisfy, the complainant in money for or concerning any of the matters, transactions or dealings alleged in complainant’s bill; deny that there is now due to the complainant the sum of $2,800 and interest, or any other amount, but aver that the same has long since been paid or if not paid by the said Ann and Benjamin Hopkins, the right of complainant to bring an action therefor has long since been barred and cut off by laches and the operation of the statute of limitations, and deny that complainant is entitled to foreclose his supposed lien, etc.

Prior to the 7th day of April, 1896, Ann Hopkins owned, and with her husband, resided upon the 58 acres of land mentioned in the bill. There is some evidence tending to show that prior to 1896, she had owned considerable real estate but through financial reverses had lost all but the 58 acres mentioned. On the date above mentioned, she, with her husband, Benjamin B. Hopkins, conveyed, by warranty' deed, this land for a named consideration of $4,000' to the complainant, James A. Farrand. There is no evidence in the record of any facts in regard to this transaction, • though there is some proof that at about this time she was indebted to her sister, M. Lavina Yates, who, on April 14, 1896, commenced an action in assumpsit against her and her husband and upon a trial thereof in December, 1897, a verdict was rendered in favor of M. Lavina Yates in the sum of $5,830.89. This verdict was subsequently set aside and a new trial granted, and on May 21, 1898, the suit was dismissed by M. Lavina Yates. M. Lavina Yates died in 1904, and her husband, Monroe Yates, in 1907. ■

Thomas M. Yates was the son of M. Lavina Yates and Monroe Yates and died in 1916, leaving the defendant, Margaret T. Yates, his widow, and Marianne Yates, Ijis daughter, as his only heirs. Margaret T. Yates, in the settlement of the estate of her husband, found, among' his papers, a typewritten document which has been designated as Exhibit “A” and is the basis of this suit. The document is wholly typewritten, even the purported signatures thereon, and is as follows :

“This agreement made and entered into this 14th day of April, A. D. 1898, by and between Ann Hopkins and "Benjamin B. Hopkins, her husband, parties of the first part and M. Lavina Yates, party of the second part, and James A. Farrand, party of the third part, all of the County of Pike and State of Illinois: “Witnesseth, That, whereas, the .said James A. Farrand did on the 7th?day of April, 189.6, execute and deliver a bond for a deed for the premises hereinafter described to the said Ann Hopkins; and,

“Whereas, a suit is now pending in the Circuit Court of Pike County, Hlinois, in which Monroe Yates for the use of the said M. Lavina Yates, is plaintiff and the said Ann Hopkins and Benjamin B. Hopkins are defendants; and,

“Whereas, it is mutually desirable by all the parties to this agreement that said suit and all matters between parties hereto, shall be amicably settled;

“Now, therefore, in consideration of the premises, it is agreed that the said James A. Farrand will execute a quit claim deed to the said M. Lavina Yates for the south-west quarter of the south-east quarter and all that part of the south-east quarter of the southeast quarter of Section No. Twenty-nine (29), lying west of the Griggsville and Pittsfield Road, both the above described tracts being in Township No. four (4) South, Range No. three (3) West of the Fourth Principal Meridian in Pike County, and State of Illinois, containing about fifty-eight acres.

“It is further agreed that the said James A, Far-rand will retain a vendor’s lien against said premises for the sum of Twenty-eight Hundred Dollars ($2800) and reserving also a life estate for the said Ann Hopkins and Benjamin B. Hopkins in said premises.

“It is further agreed that all taxes and necessary repairs shall be paid by the said Ann Hopkins and Benjamin B. Hopkins and that the house and barn located on said premises shall be kept insured for at least the amount of Twenty-five Hundred Dollars ($2500) which shall be payable to the said James A. Farrand as his interest may appear.

“It is further agreed that after the debt of the said James A. Farrand shall be paid the said premises shall be kept insured for the benefit of the said Lavina Yates.

“It is further agreed that if said premises should be destroyed by fire before the debt of the said Farrand is extinguished, then any surplus derived from the insurance after the payment of his debt shall go to the said Lavina Yates.

“It is further agreed that in case the said Ann Hopkins and Benjamin B. Hopkins make default in the payment of the interest to the said James A. Farrand or in the payment of taxes and insurance upon said place that the said Lavina Yates shall have a right to sell so much of said premises as may be necessary to pay the amount of the indebtedness of said James A. Farrand and accrued interest and taxes and insurance from time to time as said interest, taxes or insurance shall become due.

“It is further agreed that the said Ann Hopkins and Benjamin B. Hopkins shall have all the time they desire to pay the said indebtedness of said James A. Farrand so long as they pay the annual interest thereon of seven per cent per annum and pay the taxes and insurance upon said premises.

“It is further agreed that the bond above mentioned as held by, Ann Hopkins and Benjamin B. Hopkins, is to be surrendered and canceled upon the execution of the said deed by the said James A; Farrand.

“It is further agreed that in case the residence and barn are destroyed by fire during the lifetime of either the said Ann Hopkins or Benjamin B. Hopkins, that the amount of money derived from the insurance shall be expended in rebuilding the same for the use of the said Ann Hopkins and Benjamin B. during their said lifetime.

“It is further agreed that the said suit pending in the Circuit Court of Pike County, Illinois, shall be dismissed and that all claims whatsoever against the said Ann Hopkins and Benjamin B. Hopkins are to be released in consideration of the entering into this agreement.

“In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.

“Monroe Yates (Seal)

“M. Lavina Yates (Seal)”

She showed it to counsel for complainant, who, at that time, she was consulting as her attorney and subsequently this bill was filed.

The record further shows that on said date of April 14, 1898, the complainant, James A. Farrand, executed a quitclaim deed to M. Lavina Yates, as grantee, conveying the lands mentioned and containing a recital as follows: “Reserving a vendor’s lien to secure a note of even date herewith for the sum of twenty-eight hundred dollars, due on or before ten years after date with seven per cent interest payable annually and reserving also a life estate in said premises for Ann Hopkins and Benjamin B. Hopkins.”

The theory of complainant is that the above reservation in the quitclaim-deed execute^ by him was placed therein by inadvertence and that no note was ever executed by said M. Lavina Yates, but that his right to a vendor’s lien is to be controlled wholly by the alleged contract (Exhibit A), the terms of which were wholly carried out. His contention is further that the original of Exhibit “A” was written out in long hand and actually signed by M. Lavina Yates and her husband, Monroe Yates, and delivered to him and has been lost, and an affidavit to this effect was filed by him as a basis for the introduction of secondary evidence of the contents thereof. Appellees are defending as the heirs of a deceased person, and, under section 2 of the Evidence Act, Cahill’s St. ch. 51, ft 2, complainant was not a competent witness generally, still a plaintiff or complainant, under such circumstances, may make an affidavit of the loss of the instrument, necessary to lay the foundation for secondary proof of its contents. Becker v. Quigg, 54 Ill. 390; Taylor v. McIrvin, 94 Ill. 488; Wade v. Wade, 12 Ill. 89; Palmer v. Logan, 4 Ill. (3 Scam.) 56; Dormady v. State Bank of Illinois, 3 Ill. (2 Scam.) 236. The affidavit of complainant was competent only to show that the original instrument was lost, as a basis for secondary evidence of the contents thereof, hut it was not proof of the contents of the instrument itself. Metcalf v. Metcalf, 219 Ill. App. 96. The secondary evidence introduced to prove the contents of the original document consists of the testimony of the witness, Fred H. Farrand, a brother of complainant. This witness testified, in substance, that he knew Mr. and Mrs. Hopkins well and that he was buying lands on the north and south of the lands in question; that he knew about this contract and inquired about it and Mr. Hopkins showed it to him in 1912; that the instrument he saw had the signatures of Monroe Yates and M. Lavina Yates at the bottom of it written in long hand and they were genuine; that 1£ as far as the facts are concerned, the principal facts, I remember the original instrument and Exhibit ‘A’ is a copy of' it. I do not remember all of the details. Exhibit£ A, ’ in the essential points, is a copy of that agreement. It was written in long hand but do not know in whose writing; only the names of Monroe Yates and M. Lavina Yates were signed'thereto. I don’t believe it was over ten years ago, it Was after I acquired the land in 1913; it was a short time before these ten years had elapsed.” This witness does not pretend to state a single provision of the original document, but that Exhibit ££A,” in its essential points is a copy thereof, which is a pure .conclusion.

The witness, Farrand, above mentioned, states positively that the only signatures on Exhibit ££A” were those of M. Lavina Yates and her husband, Monroe Yates, and there is no proof that any of the other parties thereto ever executed it. It is urged, however, by counsel for complainant, that it was hot necessary for the other parties to.sign'the agreement, that it was, in effect, the same, kind of an instrument as a deed or mortgage, wherein it is only necessary for the grantors and the mortgagors to execute the same. To this we cannot agree. The alleged agreement attempts to settle and dispose of the rights of three different parties thereto. These rights are several, different and distinctive as to each party. Each party thereto was bound thereby to do and perform certain things and had certain enforceable rights. It is provided therein that after the debt of said Farrand shall be paid the said premises shall be kept insured for the benefit of M. Lavina Tates, also that if said premises should be destroyed by fire before the debt of said Farrand is extinguished, then any surplus derived from said insurance, after the payment of his debt, shall go to the said M. Lavina Tates; also in case that Ann Hopkins and her husband should make default in the payment of the interest to said Farrand, or in the payment of the taxes and insurance upon said place, that M. Lavina Tates should have a right to sell so much of said premises as may be necessary to pay the amount of the indebtedness to said Farrand, and the accrued interest, taxes and insurance, from time to time, as the latter shall become due. Further, M. Lavina Tates binds herself to dismiss her suit against Ann Hopkins and her husband, and to release all claims whatsoever against them. The complainant is bound to convey the premises to said M. Lavina Tates and Ann Hopkins and her husband are bound to keep the premises insured for at least $2,500, which shall be payable to complainant. Further, that they shall have all the time that they desire to pay said indebtedness to said complainant, so long as they pay the annual interest thereon of 7 per cent and pay the taxes and insurance upon said premises, and also agree to return and cancel.the bond before that time executed by said Farrand. The very nature of the duties and obligations imposed upon the respective parties..to this agreement, to be enforceable, required the execution of the instrument by all the parties thereto. This instrument never became a binding contract between the parties because it was never executed by all of them.

The above conclusion leads to the inevitable result that whatever rights appellant may have in the lands mentioned must arise out of the reservation made in the quitclaim deed executed by him hereinabove mentioned. Counsel for appellant states, in his brief, “through inadvertance said deed recites that said $2,800 interest of James A. Farrand was evidenced by a note due on or before ten years after date.” This is a pure assumption and is not based upon any competent evidence. It is true that appellant’s brother testified that he never saw or heard of any note, which, of course, as substantive proof has no weight. If presumptions are to be indulged in it would be more reasonable to presume that complainant himself refused to agree to the terms set out in Exhibit “A” and declined to execute the same, but that the agreement accepted by all parties was that embraced in the quitclaim deed. The evidence does not disclose that complainant was anything other than an active, shrewd business man. He signed this deed, acknowledged and delivered it and no reason is advanced and no evidence offered to prove that he was not fully aware of the provisions therein. The deed had been on record for nearly' 28 years before this suit was brought. Appellant never sought to have the deed reformed during the lifetimes of Ann Hopkins or M. Lavina Yates, nor since their deaths. Under the evidence in this case, the deed must stand as the act of appellant and he is bound by the provisions therein. The clause reserving a vendor’s lien to secure a note does not disclose by whom the note was executed. The deed conveys the property to M. Lavina Yates and if Exhibit “A” be eliminated from consideration, the natural legal inference and construction would be that the note was executed by the grantee in the deed, M. Lavina Yates. A grantor in his deed may reserve a lien, but, when he does, the deed becomes a mortgage and in equity is treated as a mortgage. Carpenter v. Mitchell, 54 Ill. 126; Gordon v. Johnson, 186 Ill. 18; Robinson v. Appleton, 124 Ill. 276; Marhoe v. Andras, 67 Ill. 34. Such lien exists by-virtue of the express agreement of the parties and is different from an implied vendor’s lien, as it leaves no room for implication. Gordon v. Johnson, supra; Robinson v. Appleton, supra. There is no evidence and no contention that any interest was ever paid by anybody upon the note or debt and there is no proof indicating any extension of the time of payment. An action to foreclose or enforce an implied vendor’s lien is barred if the debt itself is barred by the statute of limitations, llett v. Collins, 103 Ill. 74. And the same rule applies where an express lien is created in the deed itself.

Counsel for appellant, in order to avoid the application of the statute of limitations, urges that Exhibit “A” created a trust and that as' between the trustees and cestue que trust the statute of limitations does not operate so long as such trust continues. We have already held that Exhibit “A” never culminated into a contract because it was not executed by all the parties, therefore it is unnecessary to discuss the rule of law suggested.

In our opinion, the deed from appellant to M. Lavina Yates, in so far as appellant was concerned, must be construed as a mortgage and whether a note was executed by M. Lavina Yates or Ann Hopkins, or anybody else, or not, the debt which the deed or mortgage was given to secure was barred by the statute of limitations.

The decree of the chancellor by which the bill was dismissed for want of equity is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    A. T. Washburn, Appellee, v. The Hoxide Institute, Appellant.
    Gen. No. 8,163.
    Opinion filed January 25, 1928.
    Hogan & Reese, W. S. Greer and John W. Coale, for appellant.
    J. A. Merry, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

The present case is an action in assumpsit, wherein on a trial before the court without a jury appellee recovered a judgment against appellant for the sum of $2,336.67. It is conceded that if there is any liability at all, that the amount of the judgment is correct. The declaration consists of the common counts only, and the trial was had upon the theory of appellee that he was entitled to recover, as liquidated damages, the amount alleged to be due him for unpaid salary, in accordance with the terms of a special contract with appellant. No evidence was introduced under the quantum meruit count, and the integrity of the judgment depends upon the validity of the special contract.

Prior to June 22, 1925, H. T. Morphy, Harry M. Hoxsey and S. A. Person had established in the city of Taylorville, Illinois, a sanitarium known as the Hoxide Sanitarium, an institution devoted to the treatment of patients afflicted with cancer. The institution at that time was unincorporated, and the record is silent as to how it was owned and operated by the three persons above named, but presumptively they were partners, though they styled themselves as trustees. On the day above mentioned a written contract was executed by said Morphy, Hoxsey and Person, as parties of the first part, and by appellee, as party of the second part:

“This agreement by and between the Hoxide Sanitarium Trustees of Taylorville, Illinois, party of the first part, and A. T. Washburn, M. D., 4016 North Hermitage Ave., Chicago, Illinois, party of the second part, witnesseth :

“That the party of the first part hereby agrees to employ A. T. Washburn, M. D., as General Medical Superintendent of the Hoxide Sanitarium, party of the second part, to devote his time to the institution exclusively for a period of ten years from the date of this agreement.

“That the party of the first part hereby agrees to pay the party of the second part THREE HUNDRED DOLLARS ($300.00) per month for a period of six months, and to increase the payments at the rate of Fifty Dollars ($50.00) a month for each six month period thereafter until the end of the fourth year when an increase at the rate of ONE THOUSAND DOLLARS ($1000.00) per year, thereafter, is to be paid.

“That the party of the first part hereby agrees to issue to the party of the second part ONE HUNDRED beneficial interests in the National Cancer Research Institute and Clinic, at the time of signing this agreement.

“In the event that A. T. Washburn, M. D., desires to resign in six months, he agrees to return the above beneficial interests.

“This agreement to be effective from July 1st, A. D. 1925.

H. T. Morphy,

Harry M. Hoxsey,

S. A. Person,

Party of the First Part. A. T. Washburn, M. D. Party of the Second Part. ’ ’

Appellee entered upon his duties as general medical superintendent of the Hoxide Sanitarium July 1, 1925, and continued therein until November 10, 1925, at which time Morphy, Hoxsey, Person and several other individuals caused to be incorporated “The Hoxide Institute ’ ’ of which Morphy became president, Person, secretary, and Hoxsey, vice president. Appellee testified that on or about November 20, 1925, he had the following conversation with Morphy, the president: “I went to Morphy and asked him if it would be necessary to have a new agreement for my services with the . corporation, and he said no, to continue on the agreement that I' had with the trustees; he said it would not be necessary that they change it.” Appellee continued to render service to the Hoxide Institute until December 1, 1926, when he severed his relations therewith. The written agreement entered into by appellee and the individuals, or so-called trustees, and the conversation with Morphy above noted, it is claimed by appellee, constituted a valid contract between him and the corporation. A contract for employment extending over one year, under the statute of frauds, Cahill’s St. ch. 59, if1, must be in writing. This purported contract rests partly upon a written agreement and partly in parol, and must be treated as a parol contract in determining whether it is within the inhibition of the statute of frauds, Cahill’s St. ch. 59, ¶ 1. Hartenbower v. Uden, 242 Ill. 434; Elwell v. Hicks, 238 Ill. 170; Farwell v. Lowther, 18 Ill. 252; Wright v. Raftree, 181 Ill. 464; Cloud v. Greasley, 125 Ill. 313.

In the case of Wright v. Raftree, supra, it was said: “It is not claimed, that the whole of the contract, alleged to have been made, was in writing, but the portions thereof, which were claimed to be embodied in writing, were sought to be added to, and made complete, by oral testimony. It is, however, a well settled rule, that ‘the entire contract must be in writing to satisfy the statute; it will not be sufficient that the greater part of the contract is in writing; it must all be in writing.’ (Cloud v. Greasley, 125 Ill. 313.) ‘The contract itself cannot be partly in writing and partly in parol.’ (Farwell v. Lowther, 18 Ill. 252; Lane v. Sharpe, 3 Scam. 566; Seymour v. Belding, 83 Ill. 222.) ”

No by-laws of the corporation were introduced in evidence showing that Morphy, as president thereof, had any power to make such contracts on its behalf, hence if any such power existed it must have been one implied by law as pertaining to the usual and customary duties of the president of a corporation. If it be conceded that it was one of the implied powers of Morphy, as president, to enter into a contract of employment with appellee, yet it has been universally held that in such case the time of employment must be reasonable. In the case of Laird v. Michigan Lubricator Co., 153 Mich. 52, a contract of employment had been made for a term of service for three years, at a compensation of $1,500 per year on behalf of the corporation by the secretary-treasurer and manager of the corporation. It was held:

“It would seem clear that in the absence of any evidence of custom or any holding out as possessed of authority other than the bare fact that he was secretary-treasurer and manager, the authority to continue employment not only beyond his term of office but beyond the period during which the entire management of the affairs of the company might be changed by the election of a new board of directors, would not be implied.” In this opinion the court cites with approval what was said in the case of Camacho v. Hamilton Bank Note & Engraving Co., 2 App. Div. 369, 37 N. Y. Supp. 725, as follows: “But no presumption of law can be indulged in that, because a person acts as such a manager, he has the power to bind his principal to contracts of an extraordinary nature, and of such a character as would involve the corporation in enormous obligations and for long periods of time. If a general manager, simply by virtue of his being charged with the ordinary conduct of the business, would have the right to bind his principal to a contract for service for three years, involving the obligation to pay thousands of dollars of salary to an employe why may not that power extend indefinitely so that he may make contracts for all employes for indefinite periods, and thus assume to. himself a power which it cannot be supposed was ever intended to be lodged in him?” So also in the case of Caldwell v. Mutual Reserve Fund Life Ass’n, 53 App. Div. 245, 65 N. Y. Supp. 826, it was held in a case where the plaintiff sought to recover fees and commissions claimed by virtue of a contract executed by the vice president, a member of the executive committee of said company, in its behalf, providing for employment and compensation for a period of 10 years, that the vice president exceeded his authority and acted in excess of his power in creating such, a charge upon the corporation. The alleged contract relied upon by appellee in this case covers a period of employment for 10 years with a large increase of salary every six months for the first four years and an increase of $1,000 each year for the balance of the term, so that at the expiration of the contract, under the terms thereof, appellee would be receiving in excess of $12,000 per year. There is no evidence in this case that such a contract was ever ratified by the corporation and we are of the. opinion that if Morphy, as president, had any implied power to make a contract of this character at all, he exceeded such power in attempting to. bind appellant with such a burden extending over such a long period of years.

For the reasons therefore that the alleged contract was void under the statute of frauds, Cahill’s St. ch. 59, if 1, and that the president had no implied authority to make it, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Central Illinois Coal Mining Company, Appellant, v. The Illinois Power Company, Appellee.
    Gen. No. 8,166.

      Opinion filed January 25, 1928.
    Johnson & Pefferle, for appellant.
    Walter McO. Allen, Henry A. Converse and William L. Patton, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant abided by its declaration to which a demurrer had been sustained in the court below, and a judgment was rendered nil dicit.

The declaration consists of a single count, which is lengthy, very redundant and inartificially drawn. It is alleged, in substance, therein, that the appellant operated a coal mine in Sangamon county and that on February 26, 1926, one Frank Ziegler was employed as hoisting engineer; that both appellant and Ziegler were, on that date, working under the Workmen’s Compensation Act, Cahill’s St. ch. 48, H 201 et seq. of this State; that appellee was then operating high tension electric power lines, poles, cross-arms, etc., in said county; that appellee was then using, and for a long time prior thereto, had been using, said power lines and appurtenances for the purpose of operating said mine, under an act known as the Illinois Commerce Commission Act, or Public Utilities Act, Cahill’s St. ch. Illa; that it maintained a high-tension wire, which carried 6,600 volts of electricity, for the purpose of furnishing power and light to consumers thereof; that opposite the engine room of appellant appellee maintained a pole supporting said high-tension wire, at an altitude of approximately 50 feet; that two additional poles were set near the west end of said engine room of a height of 25 feet, and also two poles near the •east end of the engine room of a height of 25 feet; that just west of the two poles at the east end of said engine room, appellee maintained a bank of transformers between the latter poles and the door entering into the engine room from the north; that it ran wires, carrying 6,600 volts of electricity, from the 50-foot poles to the top of the 25-foot pole at the west end of the engine room and from thence down to a cross-arm situated 12 feet above the ground of the street and roadivay, located thereunder, and then ran said wires in an easterly direction to the poles located at the east end of the engine room, and attached them thereto at a point 12 feet from the surface of the street and roadway thereinafter described; that said wires were over and above a narrow gauge track which was used for the purpose of hauling timbers and other supplies from the timber pile to the tipple and for bringing equipment from the mine to the blacksmith shop for repairs; that said track connected with the engine room, tipple and blacksmith shop, and at places ran parallel with said wires, and at other places crossed in under said wires; that said wires passing parallel with the engine room, and connected with the 25-foot poles, were placed directly above and over said track which came into the engine room; that the track and the door of the engine room and the ground upon which the track was located, and the ground adjacent thereto, were used by the employees of appellant as a roadway in going to and from the tipple and wash-house and other buildings located on the premises of appellant, and for the purpose of taking supplies into the mine and bringing tools and equipment from the mine, and that the supplies for the engine room were brought from the various parts of the mine proper along this said street and roadway above described, and directly under said high voltage wire, located 12 feet above the ground, and that said wires were under the direct control of appellee; that on the day aforesaid, the said Ziegler, in the course of his employment with appellant, was engaged in operating the motor which hoisted the coal out of the mine, and that as a part of his duties he was compelled.to pass along and under said wires located 12 feet above the ground; that it was the duty of appellee to protect appellant from injury by properly placing the wires according to the standard specifications as required by section 217 of general order 30, but that appellee improperly, wilfully and negligently placed said high-tension wires, carryng 6,600 volts of electricity, at a height of 12 feet from the crown of the street, highway and roadway used by the plaintiff’s employees and maintained them in violation of said order of the Illinois Commerce Commission.

It is further averred that while said Ziegler was engaged in his duties aforesaid, and was acting in the course and scope of his employment, and in the exercise of due care and caution for his own safety, and was carrying a pipe 12 feet long into the engine room, that as a direct and proximate result of the negligence and carelessness of appellee in constructing and maintaining said electric power line at an altitude lower than that required by the Illinois Commerce Commission, the said pipe came in contact with said electric wire of high voltage, causing the electricity therein to pass through the pipe' and into the body of said Ziegler and causing his death; that because thereof appellant became liable to pay an award of $14,100 under the Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq., and became subrogated to the rights of said Zeigler, etc.

Nowhere in the declaration are the rules and regulations of the Illinois Commerce Commission set out. It is apparently assumed by the pleader that the court should take judicial notice of all the rules and regulations adopted by the Illinois Commerce Commission relating to the conduct of business of all the various public utilities in the State. Not only is this proposition conceded to be the law by counsel for appellee, but they cite authorities, some of which tend, in some respects, to support it. It is unnecessary, however, to decide whether the courts of this State are bound to take judicial notice of all the rules and regulations governing the public utilities of the State which the Illinois Commerce Commission may adopt as the declaration cannot be sustained whichever view is taken. If the court is not bound to take such judicial notice then, of course, the declaration is fatally defective in not stating what the rules and regulations of the commerce commission were, the violation of which being the basis of the action.

Assuming, however, that we are bound to take such judicial notice, we find that it is agreed by counsel that the rules and regulations of the commerce commission referred to provide, in substance, as follows: (a) The clear space between the lowest line conductors, service drops, guys, arc or trolley span wires, and the crown of streets, highways or alleys, carrying less than 7,500 volts of supply circuits, shall be 20 feet; (b) at points on public highways or on unfenced rights of way other than at crossings over streets, highways or alleys, the minimum clearance between the lowest line conductors and the surface of the ground, in supply circuits carrying less than 7,500 volts, shall be 18 feet.

The facts set out in the declaration clearly show that the accident happened upon the private property of appellee. By (a) the clearance between the wires and the crossings of streets, highways and alleys is specified. By (b) the clearance between the wires and public highways or on unfenced rights of way other than at crossings over streets, highways or alleys, is specified. The declaration refers to the place of accident in various ways, first as a roadway, then again as a street and roadway, also simply as the ground and finally as the crown of the street, highway and roadway. The said rules and regulations do not refer in any way to roadways. A roadway may be either public or private, according to its location and is not synonymous with highway, street, alley or right of way. The term “highway” includes all public ways which the public, generally, has a right to use for passage and traffic and includes streets in cities, sidewalks, turn pikes and bridges. Mobile & O. R. Co. v. Davis, 130 Ill. 146. The term “street” in its general sense means a public highway located within a town, village or city. It is apparent therefore that the place where the deceased came in contact with the wires in question was not on a street or highway. An alley may be either public or private, but the doctrine of the rule ejusdem generis must be applied in reference to the word “alley.” The word “alley,” used in the same connection with streets and highways, must be construed as meaning a public alley. It is not claimed, however, in the declaration, that the place of the accident was an alley, either public or private, nor can the place in question be deemed a right of way. A right of way is an easement. 34 Cyc. 1767. An easement in lands cannot be created by parol, but only by grant or by prescription, which presumes a grant. Girard v. Lehigh Stone Co., 280 Ill. 479.

It is apparent, therefore, that the rules and regulations of the Illinois Commerce Commission referred to do not apply to the height of wires carrying electric current when extending over private property, and consequently there could be no violation of such rules and regulations under the facts stated in the declaration.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Appellant, v. Frank Pastel, Appellee.
    Gen. No. 8,169.

      Opinion filed January 25, 1928.
    Richard Clyde Chappell, State’s Attorney, for ap. pellant.
    Sumner & Reardon, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On October 20, 1921, one Frank P. Pastel was arrested upon a warrant issued upon a complaint charging him with burglary and larceny and was taken before A. Thatcher, a justice of the peace. The transcript of the justice shows this docket entry: “Defendant Frank Pastel arrested October 20th. Cash bond for $1,000 given for his appearance March 20th, 1922, before the grand jury. ’ ’ When said Frank Pastel was taken before the justice by the sheriff he was accompanied by his brother, Charles Pastel. The amount of bail was fixed at $1,000. Charles Pastel offered to sign the bail bond as surety, but he, being a nonresident of the State, was not accepted. Thereupon Charles Pastel offered to deposit two United States Treasury certificates, each of the value of $500, with the justice as a cash bond. There is evidence tending to show that he was informed that the justice could not accept a cash bond and that thereupon he agreed to leave the two certificates with the justice and the justice agreed to try and get a surety on the bond for Frank Pastel, and that the certificates would be retained as security for any surety who might sign the bond. This appears to have been agreed to and Frank executed a personal bail bond and was released from custody. The justice never did secure another surety for said appeal bond. At the following March, 1922, term of court, an indictment was returned against Frank charging him, with others, with the offense of burglary and larceny. A capias was issued on this indictment and it seems that the sheriff returned the capias with this indorsement thereon: “I duly served the within by Dieter Burger, Robert Myers, Frank Pastel and Roy Morris, as I am therein commanded.” Just what this return means is not clear. Under the return the sheriff indorsed his fees as follows: “Service $4.00, Mileage $6.00, Return $.25 — $10.25.” The statute does not provide any particular form for a return on a criminal capias. Section 4, Division XII of the Criminal Code, CahilPs St; ch. 38, ft 749, provides as follows: 11 The sheriff * * * of the county to which the capias is directed, shall arrest the person named in the warrant, and, if the offense is bailable and the writ is not returnable forthwith, let him to bail if sufficient bail is offered, or if the offense is not bailable or sufficient bail not offered, take his body to the jail of the county where the capias is returnable, and deliver him, together with the capias, to the keeper of the jail, there to remain until discharged in due course of law. If the process is returnable forthwith, the accused shall be immediately brought into court, when he shall either be committed, bailed or tried, as the court may direct.” The return is very informal and the word “by” was probably one of the printed words in the blank return and should have been followed by the words “taking the bodies of the said (persons named in the capias) ” etc. The sheriff, however, either through ignorance or carelessness, might have intended to use the word “on” in place of “by.” The essential words, however, in the return, are “I have duly served the within as I am. therein commanded.” The fact that the fees for service, mileage and return are indorsed on the capias by the sheriff indicates prima facie, at least, that the capias was, in fact, served by arresting the persons named therein. The court record in the criminal case, however, does not show that Frank Pastel was ever arrested or arraigned in court or released upon bail, after the indictment was found. No proceedings of any kind were had in said cause in the circuit court until the March, 1924, term, when on March 28, on motion of the State’s attorney, the indictment was stricken from the docket with leave to reinstate the same. At the March, 1925, term the succeeding State’s attorney had the cause reinstated and on March 23, 1925, had the defendant, Frank Pastel, called and defaulted and a judgment of forfeiture on his recognizance entered and a scire facias was ordered returnable on the first day of the next term. On September 30, 1925, proof of service of the scire facias having been made, said Pastel was ruled to answer instanter. He was called and defaulted and judgment rendered against him on his personal recognizance for the sume of $1,000 and costs. In the meantime said justice of the peace, on instructions of the then State’s attorney, had cashed the treasury certificates and had received therefor the sum of $1,165 which money he deposited in the State Bank of Jersey-ville. On the fourth day of January, 1926, an execution was issued on the judgment rendered in the scire facias proceeding against said Frank Pastel, which was returned on the same day, “no property found” and on the same day the present State’s attorney made an affidavit for a garnishee summons against A. Thatcher, the justice of the peace, and filed certain interrogatories to be answered by the garnishee. To the second interrogatory the garnishee answered that he had in his possession the sum. of $1,165 of the effects of Frank Pastel and to the third interrogatory answered that he had in his possession said sum above mentioned, $1,000 of which was deposited as a so-called cash bond for the appearance of the above-mentioned Frank Pastel in the circuit court on a certain date to answer unto a charge there preferred against Mm. On March 15, 1926, the court entered judgment in the garmshment proceedings in favor of Frank Pastel for the use of the People of the State of Illinois, against said Thatcher, for the sum of $1,027.12. On the eighth day of May, 1926, being a day of the same March term, Charles C. Pastel asked leave to file an intervening petition in said garmshment proceedings, which leave was granted. This intervening petition sets out the fact that said Charles C. Pastel was the owner of the treasury certificates and the other facts as substantially hereinabove noted, and prays that said money for which the certificates were sold, to wit, $1,165 be paid to him. To this petition a demurrer was filed by the State’s attorney, which was overruled. Thereupon the State’s attorney filed his answer to the petiton and the cause was heard by the court. The evidence showed that after the judgment and garnishment were rendered the sum of $1,027.12 was paid by the justice to the present State’s attorney. The court, having heard all the evidence upon the hearing upon the intervening petition and the answer thereto, rendered a judgment granting the prayer of the intervening petition and ordered the present State’s attorney to pay to Charles C. Pastel, the intervening petitioner, said sum of $1,027.12, to reverse which judgment tMs appeal is prosecuted.

At the time the treasury certificates were deposited with the justice of the peace and the said Frank Pastel gave his personal recognizance for bail, cash bail or security was not authorized by the laws of this State, but it is insisted that the evidence shows that these certificates were not deposited as cash bail, but were simply left with the justice as a security to whoever might sign a recognizance as surety for said Frank Pastel. We cannot agree with this conclusion. A fair interpretation of all the testimony shows that it was, in fact, taken as a cash bail, and while these securities were not, in fact, money, they were obligations of the government which could, at any time, be converted into money and occupied the same position as cash bail. We think a fair interpretation of all the evidence shows that they were so treated by the justice of the peace and the then acting State’s attorney. The transcript of the justice states that they were deposited as cash bail. The said Frank Pastel was released from custody by reason of the deposit of them and to all intents and purposes they must be treated in the same light as if they were money and were received in lieu of the recognizance required by law with a surety thereon.

The appellant relies upon, the cases of County of Rock Island v. County of Mercer, 24 Ill. 35, and Smart v. Cason, 50 Ill. 195, to sustain his contention that while the law did not authorize the taking of cash bail, yet on a judgment of forfeiture of a recognizance, the parties giving and taking the cash bail being in pari delicto, and the county having possession of the money, the one depositing the cash bail cannot recover it back. In the above case of the County of Rock Island v. County of Mercer, the sheriff took $1,500 as a cash bail in lieu of 'a recognizance with surety. The court there said: ‘-‘We think the Circuit Court properly treated the money in controversy as if it had been recovered upon a recognizance taken for the appearance of the prisoner, by whom it was deposited with the sheriff, and the only important question in the case is, to which county the money thus collected belongs.” In the case of Smart v. Cason, supra, the defendant on an indictment for larceny gave to a deputy sheriff the sum of $800 in lieu of a bail bond -and the parties executed a written agreement, in substance, that the defendant had deposited with the sheriff said sum of money for the use of the People and if default should be made it was to be forfeited to the People, and the defendant thereupon gained his liberty. A few days after this transaction the defendant tendered to the sheriff a recognizance signed by himself and three other persons, as sureties thereto and demanded back his money. The sheriff declined to receive the bond and return the money, whereupon he sued the sheriff to recover the same. The court, after stating that the sheriff had no authority to receive the money in lieu of the bond, required by law, and release the defendant, and that the defendant had no lawful right to deposit said money with the sheriff, the acts of both parties being unlawful and contrary to public policy, they were in pari delicio and the money should be treated the same as if it had been collected on a forfeiture recognizance. Such, undoubtedly, was the law of this State when the certificates above mentioned were deposited with the justice of the peace and if there was a lawful forfeiture of the recognizance in this case, the county of Jersey is undoubtedly entitled to the money in question.

We think that a fair interpretation of the return of the sheriff indorsed upon the capias is that after the indictment was found the defendant, Frank Pastel, ivas apprehended by the sheriff and taken into custody by virtue thereof. If this was true then there could have been no forfeiture of the recognizance taken by the justice as it was satisfied fully by the arrest under the capias. But we believe there is another reason equally as potent why there was no valid forfeiture in this case. The indictment was stricken from the docket on March 28, 1924, and remained off the docket until March 17, 1925, when it was reinstated. Six days thereafter, on March 23, 1925, Avithout notice to the defendant, Frank Pastel, was called and defaulted for nonappearance and an order of forfeiture of Ms recognizance entered. Cases involving the effect of striking an indictment from the docket upon the bail are few, hut the decisions of the courts which have passed upon this question are apparently unanimous and supported by sound reason.

In the case of Drinkard v. State, 20 Ala. 9, after an indictment was found, the following order was entered: “Upon motion of the solicitor, leave of the court being first had, this case is withdrawn from the docket with leave to-reinstate if necessary.” Nothing further was done toward the prosecution of the defendant for over two years, when the defendant was arrested and tried. At the trial the defendant moved the court to strike the case from the docket on the ground that it had been discontinued. This motion was overruled, and on appeal to the Supreme Court of that State it was held that the order withdrawing the case from the docket operated as a discontinuance thereof.

In the case of Smith v. State, 149 Ala. 53, it was held: “It is true that a criminal case, as well as a civil suit, may be discontinued by the act of the prosecuting officer for the state, and a discontinuance is defined as ‘ a gap or chasm in the proceeding, after the suit is pending. ’ But, in order to constitute such chasm, it is not sufficient that some ministerial officer has omitted to do something which it was his duty to perform, but it must be the act of a prosecuting officer, indicating his intention to abandon the prosecution of the case.”

In Ashlock v. Commonwealth, 7 B. Mon. (Ky.) 44, the order in regard to the indictment was: “On motion of the commonwealth’s attorney, it is ordered that this case be struck off the docket, with leave to reinstate it hereafter by motion. ’ ’ The case was subsequently reinstated upon the docket and the court, in rendering its opinion held: “An order striking a suit from the docket, made on motion of the plaintiff, and without reservation or qualification, we should be in-dined to regard as a voluntary dismissal or diseontinuanee, and as placing the case, after the term when the order was made, beyond the power of the court. But here the right to reinstate the case upon the docket being expressly reserved, the order, we think, should not be construed as a dismissal or discontinuance, but as a mere removal or omission of the case upon the docket. * * * The order is, however, in our opinion; unusual, and we should not be understood as approving such a rule of practice, perceiving no necessity, nor sufficient reason for it, and it may have the effect to delude and entrap litigants.”

In Commonwealth v. Bottoms, 105 Ky. 222, the order entered by the court was as follows: ‘ ‘ This day came the attorney for the commonwealth, and Joe Bottoms, the defendant in the eight following prosecutions, * * *; and upon the faith of the promise of said Bottoms to forever cease and abstain from selling such liquors in this county, directly or indirectly, in person or through another, these indictments are now filed away, with leave to reinstate without notice, and to carry said prosecutions to final trial and judgment, which is to be done in the event that- said Bottoms should at -any time violate said promise.” It appears that thereafter the said defendant was again indicted, tried and convicted of selling spirituous liquors and the above cases were redocketed and the defendant brought to trial, whereupon he made a motion to strike the case from the docket on the ground that the above order was a nolle prosequi and a discontinuance of the cases against him. It was said by the court: “We know of no law that authorizes the order to file away an indictment with leave to redocket, but such has been the practice for years in this state, where the defendants in prosecutions are not before the court, and repeated efforts on the part of the officers have failed to bring them before the court. When the defendant is before the court, and the case stands for trial, we are not aware of any law or rule of practice that would authorize the attorney for the commonwealth, on his own motion, to file the indictment away, on conditions, and hold the prosecution in terrorem over the defendant; and we do not approve of such practice. However, such was done in this case, and with the consent of appellee, and upon terms; * * * the legal effect of such an order was simply a continuance indefinitely, and an exoneration of cmy bail for app ear mice, unless the contrary should appear in the order.” The facts in the case of Jones v. Commonwealth, 114 Ky. 599, show that the defendant resisted the motion to strike the case from the docket and demanded trial, which was refused and the case stricken. The action of the court under these circumstances was held to be a dismissal and discontinuance of the case. In the case of Miller v. Commonwealth, 192 Ky. 709, it appears that one Hogan was indicted in 1916 for the crime of murder and was admitted to bail in the sum of $1,000, there being three sureties upon his bond. Thereafter no action of any kind was taken in said ease for over two years, or until the August term, 1918, when the case was called to trial and the defendants being in court in person and by attorney, the attorney for the Commonwealth announced it was not ready for trial and on his motion it was ordered that the defendants and witnesses be discharged without day until they are again summoned and that 30 days’ notice shall be given to the defendants of the day set for trial. On August 12,1919, the case was again continued until the next December term of. court, with a like provision of a 30 days’ notice to the defendants. Notice was served upon the attorneys of the defendant of the day set for trial at said December term, but no notice was served upon the defendant Hogan. He failed to appear at the December term, forfeiture of his bond was ordered and the sureties summoned to show cause why judgment should not be rendered against them. The sureties defended their liability on the ground that the facts, as above noted, had the effect to discontinue the prosecution and to discharge the defendant from their friendly custody as sureties, and to permit him to go where and when he chose and that he was now residing in Indiana and they were thereby released from liability upon the covenants of the bond. In passing upon this the court held that sureties upon bail bonds are excused from fulfilling the requirements of the bond if they are prevented by the act of the law, .or by the act of the obligee, the State, through its constituted authorities, and holds, as in the Bottoms,case, that where a cause is stricken from the docket with leave to reinstate, the bail is exonerated.

In the opinion, the case of Hall v. Commonwealth, 17 Ky. L. Rep. 231, is quoted as follows: “If it be true that the indictment in queston was filed away as claimed by appellant, then there was no prosecution pending in court at the June term; hence no order forfeiting the bond could be legally made, nor could any judgment be legally rendered upon said bond, and such judgment would be clearly erroneous, if not absolutely void. If, however, the judgment is not void, the filing away of the' indictment would have the effect to release the surety in the bail bond; and that fact, if pleaded and proven by appellant, would have been a good defense.”

The court in its own opinion in the Miller case, supra, holds very forcibly: “Hence to file away an indictment with leave to reinstate it does not have the effect to nolle prosequi the indictment nor to dismiss it, but the effect is to continue it indefinitely, and possibly for all time, and if the defendant is upon bail, the sureties are discharged from liability upon the bond, * *

In the case at bar the indictment was stricken from the docket on motion of the State’s attorney, with leave to reinstate. For a year or more no effort was made to prosecute said Pastel under the indictment. When the present State’s attorney assumed office, on his motion, the indictment was reinstated, the defendant called and defaulted for not appearing, and an order entered declaring a forfeiture of his bond. Pastel had no knowledge that the indictment had been reinstated or that any further attempt would be made to prosecute him thereunder. In this case there were no sureties upon the bond; only a judgment was rendered against the principal of the bond, but that fact cannot avoid the application of the principle of the law. The law is presumed to be based upon reason and justice and to hold that a State’s attorney in criminal prosecutions, where a defendant has given bail either before a justice on the preliminary hearing or before the court on a capias after an indictment, can cause the case to be stricken from the docket with leave to reinstate, thus luring the defendant into the belief that either the prosecution thereof had been abandoned or, at least, that there was no immediate intention to proceed with it, and then, at a remote period, without notice to the defendant, cause the indictment to be reinstated, the defendant called and defaulted, and a forfeiture declared upon the recognizance, would do the utmost violence to both reason and justice and be opposed to every principle of right. It is not necessary for us to hold and we do not hold that an order striking an indictment from the docket, with leave to reinstate, operates as a discontinuance or dismissal of the case, as we can conceive, under some circumstances, where such an action might be proper, as in a case where the defendant has never been apprehended, but the question before us pertains only to the validity of the judgment of forfeiture of the recognizance, and as to that we hold that the judgment, under the facts shown by the record in this case, was void for the reasons stated.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Frank E. Earley, Appellant, v. C. C. Bierman, Appellee.
    Gen. No. 8,179.
    Opinion filed January 25, 1928.
    H. E. Fullenwideb, State’s Attorney, Edward Free and A. M. Fitzgerald, for appellant.

      William L. Patton, Charles F. Mansfield and Edmund Burke, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

The State’s attorney of Sangamon county filed in the circuit court thereof, at the relation of Frank E. Earley, a petition for leave to file an information in the nature of quo warranto to oust appellee from the office of police magistrate in and for the city of Springfield.

It is charged, in substance, in the petition that the city of Springfield, Illinois, had prior to April 5, 1927, adopted the commission form of government; that at the general election held on April 5, 1927, for the election of the mayor and "commissioners there was also to be elected a police magistrate in and for said city for which latter office the relator, Frank E. Earley, and the appellee, C. C. Bierman, were candidates; that appellee received the majority of the votes, was declared elected and now usurps said office of police magistrate; that the election of appellee was illegal for two reasons: (1) that the names of the relator and appellee, candidates for the office of police magistrate, were printed upon ballots separate from the ballots containing the names of the candidates for mayor and city commissioners, when, in fact, the names of all candidates for city offices should have been printed upon the same ballot; (2) that appellee is disqualified from holding the office of police magistrate for the reason that at the time of his.election he was the duly elected, qualified "and acting justice of the peace of the town of Springfield, which is coextensive with the city of Springfield, and that under the law he could not resign from said office of justice of the peace until his successor was elected and qualified and that he cannot hold the offices of police magistrate and justice of the peace at the same time.

The petition for leave to file the information was presented to the court April 20, 1927, and leave to file the information was granted ex parte. On April 22, 1927, appellee, as respondent to the information, made a motion to vacate the order granting such leave and was permitted to file a written motion to vacate the ex parte order and an affidavit in support of the same. This motion was heard by the court on May 8,1927, the ex parte order was vacated and the petition dismissed.

It appears, from the affidavits filed, that some time prior to the election the election commissioners were in doubt as to whether the names of the candidates for police magistrate should be printed upon the same ballots with those of the candidates for mayor and commissioners and requested an opinion from the city attorney of Springfield in regard thereto. The city attorney rendered a written opinion to the election commissioners to the effect that in his opinion the names of the candidates for police magistrate should be printed upon separate ballots. The election commissioners in accordance therewith, both at the primary election for the nominations for said offices and at the general election of the candidates, had the names of the candidates for the office of police magistrate printed on separate ballots. Notices of the election were duly made and published, the form of the ballots were published, and sample ballots were printed in accordance with the provisions of the law. The relator participated in the primary election knowing that the ballots for the office of police magistrate would be separate from those for the other offices. He had ‘ knowledge that the same condition would prevail at the general election. He took no steps by mandamus or otherwise to have the names of the candidates for police magistrate placed upon the ballot with the names of the candidates for the other municipal offices. If he had received a majority of the votes cast and the conditions here were reversed, in all probability, he would as strenuously insist on his right to hold the office as he is now in attempting to oust his successful opponent. The printing of the separate ballots was done in good faith by the election commissioners, the election was fair and no elector was deprived of his opportunity to vote for the candidate of his choice. Appellee received a majority of the votes cast by the electors of the city, and regardless of what the law may be as to whether there should have been separate ballots for the office of police magistrate or not (the final determination of which depends upon a construction of and an attempt to harmonize the medley of elections laws of this State, which, from our view of this case,,it is unnecessary to do), the court rightly exercised its discretion in denying leave to file the information. The writ of quo warranto, as has been so often held, is not a writ of right, but lies in the sound discretion of the court, who should consider all the circumstances and conditions, the motives of the relator and particularly whether the public interest will be served'by the granting of the writ. People v. Brinkley, 322 Ill. 29, and cases cited. Sound public policy forbids that in a case where the public interest is merely nominal, one who has participated in an election should be permitted to question the result on account of mere irregularities which caused no substantial injustice to anyone. People v. Graham, 267 Ill. 426; People v. Crowley, 250 Ill. 282; People v. Waite, 70 Ill. 25. The votes of the electors should not be invalidated for the mere technical violation of the law where neither the interests of the electorate nor the candidates could possibly be affected in any way. Rexroth v. Schein, 206 Ill. 80; People v. Nordheim, 99 Ill. 553. Generally, mere technical statutory duties relating to elections will, after the election, be held to be directory only and a failure to comply therewith will not invalidate the election if such failure does not affect the fairness or merits thereof, nor obstruct nor prevent a free and intelligent vote of the people and ascertainment of the result. People v. Miller, 314 Ill. 474.

The next point urged by appellant is that respondent was ineligible to hold the office of police magistrate while he was yet an elected and qualified justice of the peace, his position being, that respondent having been elected justice of the peace, he could not resign or deprive himself of that office until his successor was elected and qualified, and the case of People v. Barnett Tp. Sup’rs, 100 Ill. 332, is cited in support of this proposition. In 1895 an act was passed commonly known as the Justices and Constables Law. In section 1 of article 15 of that act, Cahill’s St. ch. 79, ¶147, provision was made for the resignation, removal and death of justices of the peace. In 1915 an act was passed entitled “An Act to amend section 146 of an Act entitled, ‘An Act to revise the law in relation to Justices of the Peace and Constables, approved June 26,1895, in force July 1,1895. ’ ” It is urged that this amendment is void because there was no such section as 146 in the act of 1895. Section 1 of article 15 of that act corresponds with paragraph 146 of Hurd’s Statute of 1895, and it is very apparent that the drafter of the Amendment of 1915 had before him paragraph 146 of that statute and carelessly assumed that the number of that paragraph was section 146, when, in fact, it was section 1. This court has no jurisdiction to pass upon the validity of statutes and by taking an appeal to this court that question is waived. Section 1 of article 15, as thus amended, provides that upon the resignation of a justice of the peace he shall deliver his docket to the county clerk and thereupon, until the appointment or election and qualification of his successor, any other justice of the peace, with the consent and permission of such county clerk, may proceed to the completion of any business left unfinished upon such docket, as if such proceedings had been originally instituted before him. This amendment does away with' all the objections to the resignation of a justice of the peace, which were the reasons for the rule laid down in the case of People v. Barnett Tp. Sup’rs, supra.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    The United Electric Coal Companies, Appellee, v. Keefer Coal Company of Illinois et al., Appellants.
    Gen. No. 8,188.
    Opinion filed January 25, 1928.
    Rearick & Meeks, for appellants.

      Acton, Acton & Snyder, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On the first day of May, 1923, William. W. Keefer and wife entered into a certain written lease or agreement with the Electric Coal Company. Subsequently Keefer transferred all his rights, under the lease, to the Keefer Coal Company of Illinois, a corporation, and the Electric Coal Company transferred all its rights thereunder to appellee, United Electric Coal Companies, a corporation. Under the terms of the agreement, the lessor (now the Keefer Coal Company) leased unto the lessee (now the United Electric Coal Companies) approximately 1,000 acres of land under-laid with coal, with the right to mine, by stripping or other method, and to remove, sell and ship the same subject to certain terms and conditions, in substance, as follows: (1) The lessee is to pay as rent a principal amount of $2,000,000, which amount may, however, be increased or diminished as thereafter provided in section 2 of the .lease, if there is an overplus or a deficit of merchantable coal in the leased premises; the sum of $25,000 to be paid January 1, 1924, for the remaining 8 months of the year 1923; the sum of $75,000 to be paid January 1,1925, for the year 1924; the sum of $135,714.28 to be paid for the year 1925 and a like sum for each succeeding year; the said annual sums of $135,714.28, to be paid in equal quarterly instalments of $33,928.57, each on the first days of April, July, October and January of the succeeding year beginning on the first day of April, 1925. (2) The said sum of $2,000,000 is predicated upon there being 1,000 acres, surface measurement, of merchantable coal underlying the premises; that upon the uncovering of said coal in the crop thereof, wherever the coal outcrops in the premises, and sufficiently back from the daylight crop line to disclose the line of merchantable coal, a complete survey of the leased premises will thereupon be made by engineers of the parties to determine the quantity of merchantable coal in the premises ; if the results of such survey show that there are more than 1,000 acres of such coal, surface measurement, the lessor shall be paid by the lessee, additional rent at the rate of $2,000 per acre, and if such results disclose a deficiency of such coal, a deduction from the amount of the total rent will be made at the same rate per acre; that the annual payments due January 1, 1926, and thereafter, shall be ratably increased or diminished to take care of such overplus or deficiency in the quantity of coal leased, when such quantity shall have been determined by said survey. (3) Lessor agrees that he will not, without the written consent of the lessee, suffer any foreclosure proceedings or other legal action against lessor or the lessee for the properties leased, upon any mortgage which may now be thereon. (4) If the lessee shall fail in the performance of any of the terms of said lease or use the same contrary to the provisions and limitations thereof, and if such failure or improper use shall continue for 30 days after the lessor shall have given to the lessee written notice of such breach or default, then at the election of the lessor all the rights and privileges of the lessee shall forthwith cease and the lessor shall be entitled to re-enter the premises and exclude the lessee therefrom. (5) Should any dispute or controversy arise between the parties which, under the terms of the lease, is made subject to arbitration, it shall be referred to and determined by arbitration by a board of arbitration consisting of three persons, one selected by each of the parties and the other selected by the other two arbitrators.

On the twenty-fifth day of May, 1925, by another written agreement between the parties, appellants consented that appellee might mortgage its leasehold interest in the premises for the sum of $6,000,000, said mortgage to be a valid first mortgage lien upon the said leasehold interest and that the lessors agree to give to the trustees to be named in said mortgage, notice in writing, of any breach of or any failure to perform the terms and covenants in said lease, to be performed by appellee thereunder, and it is agreed that neither party will take advantage of any default by appellee until they, or either of them, shall have given the trustees under the mortgage written notice of such default and such default shall be continued for a period of 90 days after service of such notice in writing, upon the trustees.

Appellee filed its bill in the circuit court and after setting out the facts above mentioned avers, in substance, therein, that it mortgaged said leasehold interest to secure a bond issue of $6,000,000, by the terms of which it was stipulated that if appellee (complainant) made default in the terms of said lease, that the lessor might serve notice of such default on the trustees who might thereupon proceed to foreclose; that appellee had made all payments under the lease up to July 1, 1927, amounting to $505,787.62; that appellant claims a payment became due it from appellee of $33,928.57 on July 1, 1927, under said lease, and has served notice of default on appellee, and on the trustees, on the ground of nonpayment of such instalment, and has refused to withdraw such notice of default upon the request of appellee; that said sum is not due to appellant and unless restrained it will declare a forfeiture of said lease, require the trustees to foreclose the mortgage, will take possession of the property, and such course will injuriously affect the business of appellee and cause irreparable damage to it; that appellee has succeeded to all rights of the original . lessees and that it and appellant were unable to agree, through their respective engineers, on the quantity of merchantable coal in the premises; that, in fact, it does not exceed 600 acres; that the controversy was submitted to a board of arbitration, selected in the manner provided in the lease; that a hearing was had before said board, evidence taken, the case argued and is now pending undetermined, awaiting the decision- of said board; that appellee believes that the evidence offered before said board proves that the amount of merchantable coal is short approximately 400 acres and that therefore nothing was due appellant on July 1, 1927; that the trustees have notified appellee of the receipt of the preliminary default notice; that appelleeoffers to pay any moneys due under said lease and that nothing will be due appellant until October 1, 1927, when the amount due, because of overpayments heretofore made, will be only $3,589.36; prays that the court take jurisdiction of the question in dispute as to the number of acres of merchantable coal, in case the arbitrators fail to fix it and that the court may construe the meaning of the contract; that unless app el-, lant is restrained he will take possession of the premises; prays that an injunction issue restraining the trustees from bringing a foreclosure suit and restraining appellant from declaring or enforcing a forfeiture of said lease or from taking any action or proceeding toward taking possession of said premises; that said injunction may remain in force until the arbitrators render their finding and until the further order of the court and in case an award is filed that the court may. enter such decree as equity requires, and in case no award is made that the court proceed to adjudicate the matters involved, take an accounting, etc.

A temporary injunction was granted in accordance with the prayer of the bill. Thereupon appellant, before answer filed, entered its motion to dissolve the same for want of equity upon the face of the bill, on the ground that it was the duty of appellee to continue the quarterly payments provided for in the lease, in the full amount thereof, until the board of arbitration made a finding; even if there was a deficiency in the acreage of merchantable coal, and on its failure to make the last payment mentioned, appellee became in default under the terms of the contract, and appellant had a right to declare a forfeiture thereof, have the mortgage foreclosed by the trustees, re-enter and take possession thereof.

A motion to dissolve a temporary writ of injunction and dismiss the bill of complaint for want of equity, before an answer is filed, operates as a demurrer to the bill and admits all the material allegations therein.' O’Donnell v. Gearing, 291 Ill. 278. In considering the' motion of appellant, therefore, all the material facts alleged in the bill must be taken as true. Under the terms of the lease a survey was made by the engineers of both parties. Appellee claims that these surveys show that there is a deficiency in the quantity of merchantable coal underlying said premises, to the amount of 400 acres. The controversy was submitted to a board of arbitrators, chosen according to the terms of the lease, who, at the time the bill was filed, had not rendered a decision. Appellee, in good faith, claims that up to the time of the filing of the bill, it had overpaid appellant the amount due the latter and offers to pay any amount that may be found to be actually due, if his contention is not correct. It is not seeking, under the bill, to avoid the payment, of any amount that may be actually due under the terms of the lease, but only seeks that the true amount may be ascertained. If appellant be permitted, under the facts alleged, to declare a forfeiture of the lease, there can be no question but that appellee would be irreparably injured. Forfeitures are not regarded with favor by courts, either in law or equity. “It is discretionary with courts to enforce or not such contracts, as the attending circumstances may warrant. We see nothing in the case to'justify the inference that the delay which did come in the payment of the money, arose out of a desire to repudiate the contract or procrastinate the payment. The complainant seems to have acted in good faith, and a rigid forfeiture should not be exacted.” Clark v. Lyons, 25 Ill. 105. “Forfeitures, in the estimation of the law, are always odious. When declared for accidental causes, or upon purely technical grounds, producing no substantial or permanent injury, they are unjust and oppressive, and, in a court of equity, may, in many instances, be relieved against.” Protection Life Ins. Co. v. Foote, 79 Ill. 361. “Forfeitures are not favored in the law, and courts readily seize hold of any circumstances that indicate an intent to waive a forfeiture. ’ ’ Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194. “In equity time is not necessarily deemed of the essence of the contract, but if it is made so by the terms of the agreement it will be treated in equity, as in law, as of the essence. But even where the contract so provides, equity, under peculiar circumstances, may not enforce a forfeiture.” Zempel v. Hughes, 235 Ill. 424. “Forfeitures will be enforced by courts in clear cases, but they are not regarded with favor, and their prevention is wthin the protecting care of equity whenever wrong or injustice will result from their enforcement.” Springfield & N. E. Traction Co. v. Warrick, 249 Ill. 470.

The contract provides that the principal amount of $2,000,000 to be paid as rent may be increased or diminished if there is an overplus or a deficit of merchantable coal in the leased premises and also declares that said principal amount is predicated upon there being 1,000 acres, surface measurement, of merchantable coal.. It is further provided that the annual payments due January 1, 1926, and thereafter, shall be ratably increased or diminished to take care of such surplus or deficiency in quantity of coal when such quantity shall have been determined by a survey. All the payments, under the contract, were made by appellee up to April 1,1927. On that date appellee paid, under the terms of the contract, the instalment of $33,928.57. Before the instalment to be paid July 1, 1927, became due, a survey by the engineers had been made, from which appellee claims that by the payment made April 1, 1927, it had overpaid what was due appellant $18,758.96. The board of arbitration had not made a finding on July 1, 1927, and appellee did not make a payment at that time. There is nothing from the facts alleged in the bill to support the contention that appellee, by withholding its payment of the instalment due July 1, was attempting to avoid any of its liability under the lease, but, from the allegations in the bill, was awaiting the decision of the board of arbitrators as to what amount it should pay. It would be inequitable to hold, under these circumstances, that a forfeiture of the lease should be declared.

The chancellor did not err in overruling the motion to dissolve the temporary injunction and dismiss the bill for want of equity, and the decree is therefore affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    C. H. Christian, Appellant, v. V. E. Filbert and Willis M. Wilson. Willis M. Wilson, Appellee.
    Gen. No. 8,131.
    Opinion filed January 25, 1928.
    Curran & Curran, for appellant.
    Flack & Kerman, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This suit was brought in the circuit court of Mc-Donough county by the appellant, C. H. Christian, against V. E. Filbert and the appellee, Willis M. Wilson, to recover back a sum of money which had been previously paid by the appellant to Filbert and Wilson as usury for a loan of money which they made to the appellant. The evidence adduced on the trial conclusively shows that the amounts of money, which had been usuriously collected from the appellant by Filbert and Wilson, had been voluntarily paid by the appellant. In view of this state of the proofs, at the conclusion of all the evidence, the court, on motion of the appellee, directed the jury to return a verdict finding the issues for the appellee, and the jury thereupon returned such a verdict, and judgment was rendered on the verdict. And this appeal is prosecuted from the judgment.

It is well settled, as a matter of law, that usury voluntarily paid cannot be recovered back. Hadden v. Innes, 24 Ill. 381, 382; Perkins v. Conant, 29 Ill. 184; Puterhaugh v. Farrell, 73 Ill. 213; Ryan v. Newcomb, 125 Ill. 91; Mason v. Pierce, 142 Ill. 331; Stober v. Ehrhart, 223 Ill. App. 543; Cook v. Wolf, 296 Ill. 27.

For the reasons stated, the judgment is affirmed.

Affirmed.


text:
    George H. Vandasant, Appellee, v. Fidelity-Phenix Fire Insurance Company of New York, Appellant.
    Gen. No. 8,145.
    Opinion filed January 25, 1928.
    Leslie J. Taylor and Hicks. & Folonie, for appellant.
    James A. Merry and Edward E. Adams, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, George H. Vandasant, sued the appellant, Fidelity-Phenix Fire Insurance Company of New York, to recover a fire loss incurred by him for property destroyed and covered by a fire insurance policy issued to him by the appellant company. It is averred in the declaration that the policy was issued on June 21, 1925, and that on the 4th day of August, 1926, while said policy of insurance was in force, some of the property which is itemized and described in the insurance policy, and which was upon the premises described in the policy, was destroyed by fire. To the declaration the appellant pleaded the general issue and three special pleas. Afterwards by leave of court the general issue and the third special plea were withdrawn by the appellant, thus leaving the first and second special pleas as embodying the appellant’s defense against appellee’s right of recovery. Concerning the matter of defense set up in the first and second special pleas, the appellant says in its brief: ‘ ‘ The first special plea sets out the condition in the policy, * * * and avers that at the time of the said supposed fire and supposed loss and damage, said note remained due and unpaid, that is to say, said note was, to-wit, after January 1,1926, and at all times thereafter past due; and the same was past due and unpaid at the time of the said fire and the said loss and damage by plaintiff complained of, and so defendant says that the consideration upon which the said policy of insurance was made, has wholly failed. The second special plea sets out in haec verba the promissory note of the insured with its conditions, averring the note was dated May 29, 1925, and was given in lieu of a cash premium for the premium of $330.50, and was payable to the defendant on the 1st day of January, 1926; that it contains the condition that in case of the nonpayment of the note at maturity the insurer shall not be liable for loss during such default, and the policy for which this note was given shall lapse until payment is made to this company.” The plea also sets forth the following condition of the policy:

“ ‘But it is expressly agreed that this Company shall not be liable for any loss or damage that may occur to the property herein mentioned, while any promissory note or obligation, or part thereof, given for the premium remains past due and unpaid,’ and denies- that the defendant was liable to the plaintiff under the terms of the contract sued upon, for loss and damage which occurred after the note was due and payable, and that the consideration upon which the policy was made, has wholly failed. ’ ’ To the first and se.cond special pleas referred to by leave of court the appellee pleaded two replications. The first replication pleaded is as follows:

“And the plaintiff as to the plea of the defendant secondly above pleaded, says that he, the plaintiff, ought not, by reason of anything in the said plea alleged, to be barred from having his aforesaid action, because, he says, that about and prior to the maturity of the promissory note described in the said plea, the plaintiff applied to the agent of the defendant who had written the policy of insurance described in the plaintiff’s declaration, and who was the agent of the defendant to write and deliver policies of insurance, and collect premiums therefor, and informed him, the said agent, that the plaintiff would be unable to pay the said promissory note at the maturity thereof, and thereupon the said agent represented to the plaintiff that he, the said agent, would procure of the defendant company an extension of time for the paying of the said promissory note, during which time the said policy of insurance would remain in force notwithstanding the nonpayment of the same at the original maturity date thereof. And the plaintiff believed in and relied upon the representations of the said agent as aforesaid, and trusted to him to inform the plaintiff when payment of the said note would be demanded, and in the meantime the plaintiff’s property was destroyed by fire, as in the plaintiff’s declaration above averred, and this the plaintiff is ready to verify: Wherefore, for want of a sufficient plea in this behalf the plaintiff prays judgment, and his damages, etc., to be adjudged to him.”

And the second replication pleaded is as follows:

“And the plaintiff, for a further replication to the plea of the defendant secondly above pleaded, says, with leave of the Court, that the plaintiff ought not by reason of anything in the said plea alleged to be barred from having his aforesaid action, because, he says, that about the time of the maturity of the promissory note described in the said plea the plaintiff applied to the agent of the defendant who had written the policy of insurance in the plaintiff’s declaration above described, and who was the agent of the defendant to write and deliver policies of insurance, and collect premiums therefor, and represented to him, the said agent, that the plaintiff would not be able to pay the promissory note aforesaid at the maturity thereof. That thereupon the said agent represented to the plaintiff that he, the said agent, would grant to the plaintiff an extension of time for the payment of the said note. And the plaintiff believed in and relied upon the representations of the said agent, and trusted to the said agent to inform the plaintiff when payment of the said note would be demanded, and in the meantime the plaintiff’s property, as in the said declaration above averred, was destroyed by fire, and this the plaintiff is ready to verify: Wherefore, for want of a sufficient plea in this behalf, the plaintiff prays judgment, and his damages, etc., to be adjudged to him.”

A general and special demurrer was filed by the appellant to the replications and overruled by the court, whereupon the appellant stood by its demurrer, and the court thereupon assessed damages and entered judgment in favor of the appellee for $2,071. This appeal is prosecuted from the judgment.

Concerning the matters involved in this appeal, appellant in its brief and argument states that this case involves “an action in assumpsit upon a farm policy of fire insurance, in which a judgment of nil elicit was entered in favor of the plaintiff, upon defendant’s refusing to plead further after its general and special demurrers to the plaintiff’s replications were overruled. The single question presented in this appeal is as to the correctness of the trial Judge’s action in overruling the demurrers and entering judgment in favor of the plaintiff.” The question therefore presented for determination is whether the matters averred in the replications constitute a waiver of the requirement in appellant’s policy, that the premium note for $330.50 referred to in the plea be paid at maturity as a condition precedent to any liability under the policy; also whether the action of the agent in granting an extension of time for the payment of the premium note averred in the replication operated as a waiver of the payment of the note at maturity as required by the terms of the policy set up in the pleas and operate as a waiver of the condition in the policy that the company should not be liable for any loss or damage that might occur to the property insured while any promissory note or obligation or any part thereof, given for the insurance premium note, remained unpaid after the maturity thereof.

It will be noted that the last replication avers that the appellee applied to the agent of the appellant, who had written the policy of insurance for the company, and who was the agent of the defendant for the purpose of writing and delivering policies of insurance, and collecting premiums therefor, and informed him that the appellee would be unable to pay the promissory note given for the premium at maturity thereof, and that the agent thereupon represented to the appellee that he would grant to the appellee an extension of time for the payment of said note, and that the appellee believed in and relied upon this representation of said agent, and that an extension of time for payment was granted, and he trusted to said agent to inform him when payment of said note would be demanded, and that in the meantime the appellee’s property was destroyed by fire. The demurrer admits the matters of fact concerning the extension of the time of payment of the premium note by the company’s agent which is averred in the replication, and that the appellee relied on this representation in not making payment of the note at maturity as required by the terms of the policy. We are of opinion that if the agent had authority to act for the company, then the extension of time granted by the agent would operate as a waiver of the appellant’s right to payment at maturity, and the liability of the appellant under the policy would also be extended thereby. In reference to the authority of the agent to bind the company, the replication avers that the agent granting the extension was an agent of the company who had written the policy of insurance in question, and who was the agent of appellant to write and deliver policies of insurance and collect premiums therefor. Concerning the authority of an agent of an insurance company to bind his principal, the Supreme Court held in Milwaukee Mechanics’ Ins. Co. v. Schallman, 188 Ill. 213, that an agent although local in respect to the territory in which he operates, who is clothed with a general power to solicit and make contracts of insurance for . the company, is in legal effect a general agent for the transaction of business of this character for the company, also in Phenix Ins. Co. v. Stocks, 149 Ill. 319; Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284; Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179. “A general agent, clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of the policy notwithstanding that power is negatived by provisions in the policy and his contract of employment.” Hancock Mut. Life Ins. Co. v. Schlink, supra.

We conclude, therefore, that the allegations of fact in the replication to the first and second pleas amounted in law to a waiver by the appellant of the right to plead the nonpayment of the premium note at maturity a defense to appellee’s right of recovery, and that the demurrers to the replication were therefore properly overruled. The regularity and correctness of the proceedings following the overruling of the demurrers are not questioned. For the reasons stated the judgment is affirmed.

Judgment affirmed.