text:
    Irwin Ames, Appellee, v. Armour and Company, Appellant.
    Gen. No. 31,451.
    1. Negligence — effect of contributory negligence. Proof of contributory negligence on the part of the plaintiff, in absence of a charge of defendant’s wantonness, bars plaintiff from recovering for his personal injuries.

      2. Negligence — conflicting evidence as making contributory negligence a jury question. Whether a plaintiff was guilty of contributory negligence barring recovery for his injuries was a. question for the jury under evidence so conflicting that reasonable minds might reach different conclusions.
    3. Motor vehicles — contributory negligence of switchman injured in collision between car and train. A judgment for plaintiff for damages for his personal injuries will be reversed as based on a verdict against the weight of the evidence which showed that the plaintiff, a switchman in charge of a railway train in interstate commerce, instead of prudently signaling his engineer to stop his backing train upon sighting a truck about to cross the tracks, climbed down the end car with the design of shutting off the air coupling and was injured in so doing by the ear’s colliding with the truck.
    4. Workmen’s compensation — inapplicability, to workman engaged in interstate commerce. A railway switchman, engaged in interstate commerce at the time he was injured by a truck colliding with the railway car down which he was climbing, properly sought his remedy by action to recover damages instead of proceeding under the Workmen’s Compensation Act.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed October 19, 1927.
    Charles J. Faulkner, Jr., Walter C. Kirk and A. B. Reid, for appellant.
    Royal W. Irwin, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On November 19, 1924, Irwin Ames, the plaintiff, was. injured as the result of a collision between a train of the Chicago, Milwaukee & St. Paul Railway Company and a truck of Armour and Company, the defendant, at the junction of Rees and Kingsbury streets in Chicago. On July 14, 1925, he brought suit in the superior court against the defendant for damages. There was a trial, with a jury, and a verdict and judgment for the plaintiff in the sum of $6,000. This is an appeal from that judgment.

The declaration consists of two counts. In the first it is alleged that on November 19, 1924, while employed by the Chicago, Milwaukee & St. Paul Railway Company, and engaged in interstate commerce, the defendant so carelessly and negligently ran, managed, operated and propelled a certain motor vehicle (a truck of the defendant) that it forcibly and violently ran into and struck against him and one of the cars of the railway company upon which he was riding as an employee, and while he was in the exercise of care for his safety.

In the second count it is alleged, further, that the defendant carelessly failed to give suitable, sufficient and proper signal and warning of the approach of the motor vehicle.

The defendant pleaded the general issue and three special pleas. In the first it is alleged that the plaintiff was in charge and control of the locomotive and cars in question; that the cars were pushed ahead of the locomotive over and across Rees street, a public street in Chicago, in violation of section 3403 of the city ordinances, which requires flagmen to be kept at the crossing; that no flagman was stationed at the crossing and that the plaintiff knew that fact but permitted the cars to be pushed over the crossing without giving any warning to the driver of the defendant’s motor vehicle or truck; that as a proximate result of the violation of the ordinance, the cars were caused to collide with the defendant’s motor vehicle or truck and as a result injured the plaintiff.

In the second, it is alleged that it was the duty of the plaintiff, who was in charge of the locomotive and cars, to give warning to persons passing along Rees street, at its junction "with the railroad tracks, of the approach of the cars; that it had been the universal custom in Chicago to give warning, at such crossings, of the approach of railroad cars and trains ; that the plaintiff failed to give such warning, and, as a direct and proximate result, a collision occurred between the cars and the defendant’s motor vehicle or truck; that the plaintiff’s injuries were caused by being caught between the front railroad car, on which he was riding, and the defendant’s motor vehicle or truck when they collided and was the direct and proximate result of the plaintiff’s failure to give any warning of the approach of the cars, and was not due to any fault or negligence on the part of the defendant or its agents.

The third alleged that the railroad company and the defendant, at the time, were both operating under the Illinois Workmen’s Compensation Law, Cahill’s St. ch. 48, ¶ 201 et seq.; that the handling and switching of the freight cars was entirely an intrastate movement, and'the plaintiff’s only remedy was against his employer under the Compensation Law, and not against the defendant.

The plaintiff, on November 19, 1924, the date of the collision and injury, was employed and working as a switch foreman for the Chicago, Milwaukee & St. Paul Railway Company (hereinafter called the Railway Company). He was instructed, in the morning of that day by the yardmaster, who was his superior officer, to take a string of nineteen freight cars from the Division street yards of the Railway Company and put them on the Kingsbury street transfer track, about a mile away, from which place they were later to be taken by another locomotive of the same Railway Company to Bensonville, Illinois, to be put in a classification yard of that company. To reach the Kings-bury street transfer track, where the nineteen cars were to be taken, it was necessary, and it was the common practice, first, to pull them in a northerly direction out of the Division street yards, across the north branch of the Chicago River and a short distance beyond, and then push them back south on the tracks on Kingsbury street, a north and south street, until the Kingsbury transfer track was reached. Accordingly, as switch foreman, and having charge of an engine crew and two helpers, about 10:30 a. m. on the day in question, the plaintiff had an engine coupled on the north end of the string of nineteen cars, and had .the air “coupled” on, and started to take them from the Division street yards to the Kingsbury street transfer track. As the train was going north out of the yards, the plaintiff got on the tail end car. When the train stopped going north and started backing-south, the plaintiff and a helper, Parr, were on the top of the south car of the train, the locomotive being at the north end. The distance from the place where the train started to back south, to where the collision occurred, at the junction of Bees street, on east and west street, and the railroad track on Kingsbury street, is about three-quarters of a mile. The train was on number one track, "which was the east side of the street. There are three east and west streets crossing the tracks between the place where the train started to back south and Bees street. At none of those crossings was there a flagman or cross-board sign, to warn the public. As the ’train backing south approached each of those streets, the plaintiff and Parr shouted at the top of their voices to call the attention of the people to keep off the crossings.

When the train,, going about four miles an hour (the plaintiff put it at four miles an hour, and his witness Sack at 12 miles an hour), got to a point about 250 feet north of the Bees street crossing, the plaintiff, according to his testimony, saw, for the first time, the defendant’s truck, which at that time was backing north out of the Schaefer Oil Works, about 100 feet south of Bees street, on the west side of the tracks. The driver of the truck backed north into Bees street and turned the rear of his truck to the west. When the truck came to a stop in Rees street it was about 25 feet west of the west track, and facing-east. When the plaintiff saw the truck starting to back up Rees street, the plaintiff and Parr shouted as loudly as they could to attract the attention of the driver. The truck, after backing west into Rees street, then, according to the plaintiff, after standing about a second, started east at about two miles an hour. The plaintiff, meanwhile, seeing the truck did not slacken its speed and that the driver was looking-straight ahead, climbed down on the side of the car at the south end to pull the air cock, which was on the right hand side of the drawbar, to stop the train and keep it from colliding with the truck. Just before climbing down, he, the plaintiff, had signalled the engineer to slow down. The plaintiff did not get to the air cock. He got down to the bottom of the stepladder, with his feet on the bottom stirrup, when the truck and train collided, the southwest corner of the car, where the grab irons were, and the northeast corner of the truck coming together, and, as a result, pinning the plaintiff between them, and injuring him.

At the close of all the evidence, claiming that the evidence showed conclusively, as a matter of law, that the plaintiff was guilty of contributory negligence, and that the evidence failed to show that the plaintiff was engaged in interstate commerce at the time of his injury, the defendant moved that the jury be instructed to find the defendant not guilty, and the motion was overruled.

Did the evidence show that the plaintiff was guilty of contributory negligence? It is urged for the defendant that the plaintiff voluntarily exposed himself to a danger of which he had knowledge; that he failed to exercise ordinary precautions to avoid it and so was guilty of such contributory negligence as would prevent his recovering damages for his injuries. In such a case, it is the law that if the plaintiff was negligent, and his negligence contributed to the injury, he cannot recover. As the court said in Wilson v. Illinois Cent. R. Co., 210 Ill. 603:

“He could not be in the exercise of ordinary care and at the same time guilty of contributory negligence. Willfulness and wantonness not being charged, whatever the negligence of the appellee, the appellant may not recover, unless it appear that he was in the exercise of ordinary care at the time of the injury.”

Whether the plaintiff, at and just prior to the time of the collision, was in the exercise of ordinary care for Ms own safety, we think — considering the complicated situation of facts, shown by the evidence, some of which tends to show care and some almost foolhardiness, and concerning which reasonable men might differ in their judgment — was a question of fact for the jury. And the jury having found in favor of the plaintiff, the question arises, was their finding clearly against the weight of the evidence?

The evidence of the plaintiff is that as the train was backing south he was standing upon an empty box car, the southermost of the nineteen cars, watching to see if everything was clear; that the train was going about four miles an hour; that he first saw the truck when it was backing north out of the oil station at a point of from 100 to 200 feet south of "Bees street, at which time the train was 250 feet north of Bees street; that as the truck backed up, he and Parr shouted to attract the driver’s attention; that the truck did not slacken its speed as he and Parr shouted; that the truck backed north to Bees street, then to the west in Bees street, and then turned and headed east and came to a stop about 25 or 30 feet west of the west track; that after the truck stopped for about a second it started east; that he saw a little of the truck driver’s face, and that he, the driver, was looking-straight ahead; that he started to shout to him the last time just as the driver started east; that the train was going four miles an hour, and the truck, two; that after the truck got into Bees street, he, the plaintiff, in order to shut off the air, to stop the train and prevent a collision, got down on the left-hand (west) side of the car, the top of which was 19 feet from the ground, to pull the air cock, which was on the right-hand (east) side of the car and of the drawbar, between the right-hand corner of the car and the draw-bar ; that he got down to the bottom of the stepladder, with his feet on the bottom stirrup, when the truck and the car came together, corner to corner, and pinned his right leg between them; that prior to getting down, he had given the engineer a signal, “swinging him down”; that after the collision the train stopped within two or three feet. On cross-examination, he testified that in order to stop the train, he would have to get down from the top of the car, get off and “Bun right around it,” that is, the end of the car; that he knew there were no bells or electric signals, nor signs, at any of the crossings. When asked why he did not signal to the engineer when he was approaching Bees street and saw the driver and that the driver was not observing him, he answered, “We did, but he did not stop in time”; that he gave that signal when the train was 250 feet north of Bees street. He further testified that that signal was given after the signal “swinging him down”; that they “were swinging him down, giving him easy signs”; that “when you want to wave the engineer down, you give him a stop sign. Whien I was slowing the engineer down Parr started down on the other side of the car. Parr made an effort to stop it. Both of us were signalling to the engineer. We were then going about four miles an hour. At that time the truck had not started across Bees street. He was standing still.” The following questions and answers were given on plaintiff’s cross-examination:

“Q. Well, as you were approaching Bees street and saw the truck in the position that it was, and the man not observing you, why didn’t you give the signal to the engineer to stop the train?
“A. We did, but he did not stop in time.
“Q. How far were you from Bees street when you gave that signal?
“A. About 250 feet.
“Q. You gave that signal to the engineer at that time?
“A. After we swung him down.
“Q. You were swinging him down?
“A. We were swinging him down, giving him easy signs.
“Q. And you had the air all coupled?
“A. Yes, sir.
“Q. How far do these trains stop when the air is coupled after you give them the signal to slow down?
“A. How far?
“Q. Yes.
“A. Sometimes they won’t stop very quick.
“Q. Well, do they stop within 200 feet?
“A. You can stop quicker than that, if you put on the emergency.
“When you want to wave the engineer down, you give him a stop sign. When I was slowing the engineer down Parr started down on the other side of the car. Parr made an effort to stop it. Both of us were signalling to the engineer. We were then going about four miles an hour. At that time the truck had not started across Bees street. He was standing still. We were proceeding less than four miles an hour after the truck started across Bees street.
“Q. And did the chauffeur of the truck look your way then?
“A. No, sir, he did not.
“Q. He did not see you at all then, did he?
“A. No, sir.
“Q. He did not pay any attention to you?
“A. No, he did not pay any attention to us.
“Q. And you say that you could observe it?
“A. I saw it right through the little glass in the cab and he was looking right straight east.
“Q. And he was going out that minute right out onto the Number 1 main, was he not?
“A. He was just starting — he was standing there when I seen him, and all at once when the car was on the crossing he steps on the gas and runs right into us.
“Q. All of this time, up from the 250 feet to Bees street, you were slowly indicating to the engineer to stop?
“A. Going slower right along.
“Q. When was it, then, that you gave the final signal to the engineer to stop his train after you told him to put it under control?
“A. After we told him?
“Q. Yes.
“A. We did not tell him.
“Q. Isn’t that signal (indicating) to slow down?
“A. Well, we figured he was going to leave the cars at Bees street, and we did not repeat that. He couldn’t see what was going on back there.
“Q. Now, at the same time that you were signal-ling the engineer, you were calling at the top of your voice.
“A. Yes, sir.
“Q. Now, you were not going to leave the cars right there at Bees street, were you?
“A. No, sir.
“Q. You were going to leave them about two blocks beyond, up at Halsted street?
“A. Up towards Halsted street.
‘ ‘ Q. That is how many feet from Bees street, about ?
“A. It is a block away.”

He further testified that Parr went down the ladder on the north end of the car when it was about 100 feet from Bees street, and then, in another place, testified that Parr went down when the" car was 25 to 30 feet away; that he, the plaintiff, was signalling the engineer to slow down when he and Parr started down; that he did not get down, did not have time to get off; that if he had gotten off, the truck would have shoved him under the train; that when the train was within 100 feet of the crossing, the truck was standing 25 feet from the main track; that the truck did not start up until the train was on the crossing; that when Parr got down, there was danger of a collision; that at that time, “We gave him (the engineer) a slow up signal,” not a signal to stop; that if he had given the engineer a quick stop sign, the train could have been stopped in 10 feet; that if he, the plaintiff, had given the engineer the washout sign when Parr got down and the train was 25 to 30 feet from the crossing, the train could have stopped before it reached Bees street.

The evidence of Parr is that he first saw the truck when the train was 150 feet from the crossing; that the truck was about 10 feet from the crossing; that he and the plaintiff shouted to the driver; that as the train got near the crossing, within about 30 feet, he went to get down the north end of the car so that if there were a collision and the car was tipped over, he would not be up on top; that it was safety first with him; that there was a third man on the head (north) end of the train, on the car next to the engine, who was there to pass signals from the plaintiff and Parr to the engineer; that as they went south on Kingsbury street, no signals were given until reaching Bees street; that when the truck backed west in Bees street and was about 25 feet west of the tracks, it did not stop, the driver “just put her in gear,” and went right ahead; that he made no effort to stop the train, and got down for safety; that he “thought there was a collision coming at that time, if the chauffeur did not look and see us”; that the driver did not see them at all; that before he got down he gave the engineer a washout signal, which, with the train going four miles an hour, would, if acted upon, stop it in 15 or 20 feet; that he gave several such signals; that the third man on the car next to the engine was still there; that the plaintiff, to get the air cock, would have to go down the ladder and reach over about four feet to get hold of it; that he did not see the plaintiff give any signals of any kind to the engineer, although he was standing next to him; that they did not reduce the speed of the train at any time before the collision.

The evidence of Dobbert, for the plaintiff, is that he saw the truck, and that the driver appeared not to be looking forward, but up in the air; that as the truck backed into Rees street preparatory to going east, the train was about 15 feet from the crossing, and the truck, after backing, about the same distance away; that the truck started across Rees street at 7 or 8 miles an hour, a little faster than the train was going; that the truck was making a great noise.

The evidence of one Sack, for the plaintiff, is that when he first saw the train it was 50 or 75 feet north of Rees street, and going about 12 miles an hour; that the plaintiff, just before the collision, climbed about half way down; that when the truck started up it went four or five miles an hour.

The only occurrence witness called for the defendant was one Cooper, who drove the truck in question. His testimony is to the effect that he backed the truck from the north of the oil station into Rees street; that the rear of the truck was towards the west, and came to a stop about 15 or 20 feet west of the railroad tracks; that the truck and contents weighed about three tons; that the seat on the truck is quite far back of the radiator, and had a permanently closed top; that hearing somebody shout from the south, he looked in that direction, and then started using the first gear, and then changed into second speed; that he did not hear any noise from the north, because of the noise of the truck; that he was not going over five miles an hour when he went into second speed, and traveling in second speed he could not go over 7 or 8 miles an hour; that he traveled in second speed approximately 16 feet before the accident happened; that he had crossed the railroad track at that point practically every day for six months; that nearly always there was one of the switchmen off the train, down ahead, standing near the crossing, from where the engineer of the train that was moving south could be signaled; that on the day in question, no one was there; that he did not hear any signal or warning given from anyone on the top of the moving car; that when he was just about over the first rails of No. 1 main track, he looked up and saw the box car bearing down upon him about six feet away; that he tried to stop, and put the truck in reverse speed, but the truck was only stopped when it was struck by the box car; that the truck was struck at the left front axle; that at the time, the front wheels had just gotten over the first rail; that the train backed into his truck, pushing it about 15 feet; that in backing from the oil station north, he had to lean over and look out from the right-hand seat of the truck; that it was impossible to see the railroad track at that angle; that the train at the time of the collision was going about 5 or 6 miles an hour; that he did not look toward the north, or he would have seen the train.

It will be seen from the evidence of the plaintiff and his witnesses, and from that of Cooper, that, although the truck driver may not have exercised ordinary care, the plaintiff himself quite obviously failed to prove that, after having such knowledge of the situation as, reasonably considered, showed that a collision was imminent, he himself was in the exercise of ordinary care. Taking the evidence of the plaintiff and his witnesses, Parr, Dobbert and Sack, together with that of Cooper, and interpreting it, as favorably as seems reasonable for the plaintiff, it still shows that he was guilty of contributory negligence; that he was injured as the direct result of his doing things, voluntarily, that the ordinarily prudent man, possessing the knowledge the plaintiff had at.the time, would not have attempted. From his and his own witnesses’ evidence, it is quite obvious that in undertaking to get down off the top of the car and pull the air cock and stop the train, he knew he was taking a dangerous chance and running the risk of being injured. He testified that when Parr got down there was danger of a collision. It is true that his conduct, from the standpoint of his employer, might be considered as highly commendable as an endeavor to protect its property, but it does not follow, therefrom, that the defendant, therefore, was liable for his injuries. He was bound, in any event, to exercise ordinary care for his own safety. If he had done so, and had properly and seasonably signalled the engineer to stop the train, instead of undertaking himself to climb down and go around in front and turn the air cock, in all probability the collision would not have taken place, and he would not have been injured.

In our judgment, the evidence is convincing that the plaintiff was guilty of contributory negligence, and that the verdict of the jury is manifestly against the weight of the evidence.

Inasmuch as it becomes necessary that the case be retried, we have examined the evidence on the question of whether or not the plaintiff at the time of the accident was engaged in interstate or intrastate commerce. In our judgment, the evidence sufficiently shows that at the time in question plaintiff was engaged in interstate commerce.

For the reasons stated above, the judgment of the superior court will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Holdom and Wilson, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Taylor

license: Public Domain

text:
    George Green Lumber Company, Appellee, v. John Fendl et al., on Appeal of Arthur Taylor et al., Appellants.
    Gen. No. 31,493.
    Mechanics’ liens — extension by subcontractor of time of payment as affecting time for enforcement of lien. Under Cahill’s St. ch. 82, ¶ 33, providing a subcontractor shall begin suit to enforce his lien within four months after his final payment is due, all his rights to start suit expire within four months after his principal contractor becomes entitled to final payment, and cannot be further extended by any agreement with the contractor' that the latter may have more time to pay the bill owing the subcontractor.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions to dismiss.
    Opinion filed October 19, 1927.
    Frank F. Tollkuehn, for Arthur O. Taylor and Reniee Taylor, appellants.
    John Thornton Gilbert, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the defendants from a decree granting the petitioner, George Green Lumber Company, a mechanic’s lien in the sum of $599.47.

The defendants, Arthur C. Taylor and Reniee Taylor, his wife, were owners in fee of certain real estate in Cook county, known as Lot 225 Downing’s Subdivision. On August 6, 1924, they conveyed it by trust deed to the defendant, Union Trust Company of Chicago to secure certain notes and interest. On July 12, 1924, the Taylors and the defendant, Fendl, entered into a written contract whereby Fendl was to repair and remodel the buildings on the property for $4,100. The contract provided that $200 should be paid down, 90 per cent paid as the work progressed, and the “balance to be paid when the work is completed.” On July 17, 1924, the petitioner, who is here suing as a subcontractor, entered into an agreement with Fendl, the original contractor, to furnish to the property in question certain specified items of lumber and material. The terms of their agreement were contained in a letter of the petitioner to Fendl. As to payment, it contained the following, “Terms payable within 60 days from date of last material.” The master found that it was agreed between them that the price of the material should be $875, payable 60 days from the date of the last delivery; that between July 28 and October 15, 1924, the petitioner had delivered material, the charge for which was $639.74; that owing to certain agreed upon charges, all the estimated material was not delivered; that in the course of performance by the petitioner, at the request of Fendl, the petitioner delivered $256.53 of extra material which it was agreed should be paid for within 60 days after final delivery; that the total amount to be paid by Fendl to the petitioner was $866.27; that Fendl made certain payments to the petitioner, leaving a balance due of $599.47; that the petitioner fully completed its deliveries and contract with Fendl on October 15, 1924.

On December 11, 1924, the petitioner served a notice of a claim for a mechanic’s lien on the Taylors. That notice contained the following:

“And that beginning with the 28th day of July, 1924, and concluding with the 15th day of October, 1924, we furnished and delivered to said premises upon the orders of said John Fendl * * * material of the * * * value of $872.58; of which said sum there has remained due and owing to us an unpaid balance of $599.47, since the 15th day of October, 1924, and that we will hold said premises * * * liable therefor,”

The master, also, found that on November 5, 1924, Fendl drew a superintendent or architect’s certificate addressed to the Union Trust Company of Chicago, by which said John Fendl certified that the complainant was entitled to payment in the sum of $483.87 for the lumber and millwork delivered to said premises and used on the same in and about making said alterations, improvements, additions and that said certificate Was on or about the same date thereof presented to Arthur C. Taylor and Reniee Taylor, his wife, who wrote their indorsements on the same and directed the Union Trust Company, to pay to said George Green Lumber Company, $483.87; that said sum was never paid to the petitioner.

The master found that, although the last of the material was delivered by the petitioner on October 15, 1924, and the notice of a claim for lien was served on the Taylors on December 11, 1924,. and the petition for a lien was filed on April 13, 1925, more than four months — the time fixed by section 33 of the Lien Act — after the last material was delivered by the petitioner, nevertheless, by reason of the terms of the. contract between Fendl and the petitioner, the purchase price of the material sold by the petitioner to Fendl did not become due until 60 days after October 15, 1924, the date of the last delivery, that is, until December 15, 1924, and that the statement in the notice of December 11, 1924, that there remained an unpaid balance of $599.47 since October 15, 1924, in no way affected the 60 days provided for in the agreement between Fendl and the petitioner, or its rights against the owners, and that the petitioner had the right to file its petition, as it did, on April 13, 1925, being less than four months after December 15, 1924, because it was within four months “after the time the final payment” was due the petitioner, that is, was due the “contractor or laborer or party furnishing the material.” (Section 33 of Lien Act, Cahill’s St. ch. 82, ¶ 33.)

The only notice given by Fendl, in the course of the fulfillment of his contract, as to work and materials furnished by the petitioner, and as to amounts, was served on August 26, 1924, on the Union Trust Company, for the purpose of procuring from the latter certain payments, on account of the owners. It recited, among other things, that the petitioner had furnished material at a charge of $705, and had been paid $265.

The chief question of general importance in the case, therefore, is whether the time within which a subcontractor may begin suit is confined to the time within which the original contractor may do so. Although the time began to run against the original contractor from October 15, 1924, when the last delivery was made, and at which time the original contract provided the balance was to be paid by the owners, does the law permit the subcontractor, by reason of his agreement that the original contractor shall have 60 days from the date of delivery within which to pay him, to measure the statutory four months from the expiration of the 60 days, even though meanwhile the original contractor’s time would have expired? The petition was filed on April 13, 1925, more than four months after October 15, 1924, when the last delivery was made. Section 33 of the Lien Act, Cahill’s St. ch. 82, ¶ 33, provides that such suits shall be begun within four months from the date on which payment became due. As far as the owners were concerned — there being shown nothing to the contrary— their obligations in money were measured by the contract with the original contractor, and when the last delivery on October 15, 1924, was made, presumably their whole indebtedness was not only fixed in amount, but under their contract, and by its express terms, then due. There is no evidence that they knew that material had been furnished by the petitioner for which there would be no liability on the part of the original contractor for 60 days after October 15, 1924. Although Fendl served a notice on August 26, 1924, on the Union Trust Company for the purpose of procuring payments for the owners ’ account, it stated nothing about Fendl having 60 days’ credit on petitioner’s account; it set forth as to the state of the petitioner’s account, as of that time, that the amount of the petitioner’s contract was $705 and that of it $265 had been paid. When then, after October 15, 1924, the statutory period, four months had elapsed, the property became, at once, immune. There might be outstanding obligations as to the accounts between the petitioner and Fendl, or between either or both of them and the owners, but all rights of the petitioner to a subcontractor’s lien were at an end when the four months, after the last delivery, had expired. There is nothing in the Lien Act that suggests that the subcontractor’s lien time may be extended beyond that of the original contractor. Reasonably considered, the subcontractor’s rights are within and not greater than those of the original contractor. Otherwise, by an understanding between them, there might be as against the owner an outstanding right to a subcontractor’s lien extending to the full period of the particular limitations, 5 or 10 years. Zenco Electrical Supply Co. v. South Shore Electric Co., 177 Ill. App. 553; VonPlaten v. Winterbotham, 203 Ill. 198; Torrance v. Bowton, 96 Ill. App. 475; North Side Sash & Door Co. v. Hecht, 295 Ill. 515; Pittsburgh Plate Glass Co. v. Kransz, 291 Ill. 84; Beck Coal & Lumber Co. v. H. A. Peterson Mfg. Co., 237 Ill. 250.

In the view we take of the case, it is not necessary to consider other matters which are discussed by counsel in their briefs. The suit having been begun after the time fixed by the Lien Act had expired, the decree will be reversed and the cause remanded with instructions to dismiss the petition.

Reversed and remanded with directions to dismiss.

Holdom and Wilson, JJ., concur,


text:
    Raymond M. Hood, Appellant, v. Polish National Alliance of the United States of North America, Appellee.
    Gen. No. 31,534.
    1. Building and construction contracts — payment on offer to architect as ratification. Payment- by a fraternal society to an architect of the first instalment of a prize award won by him, in a contest to select an architect for planning and directing construction of a society building, without first securing the consent of the society convention, was proof the society did not consider its whole prize offer to require the convention’s consent before it should be binding.
    • 2. Estoppel — what representations estop from pleading failure to ratify contract. A fraternal society is estopped from pleading failure of its authorities to ratify its prize offer to architects to select one to control the construction of a building for it, by the fact that its authorized agent representing to the architect, who later won the award, that such award would be binding without the consent of the society convention, though this was intimated in the offer to be necessary.
    3. Contracts — oral evidence as varying offer of a contract. Oral evidence may be introduced to show what a prize offer really was inasmuch as it did not become a contract until its acceptance by the winner and ratification thereof by the offerer.
    4. Building and construction contracts — what sufficient acceptance by architect of contract to supervise.' A fraternal society’s prize offer to architects to select one for planning a building is unilateral until an architect accepts it in the light of the interpretation given by the society’s agent and the society shows its agreement to this acceptance by making partial payment of the prize award for his work already furnished.
    5. Agency — what constitutes holding out as agent and ratification of his acts. A fraternal society in conducting a prize contest for an architect for its building, makes a party’s acts and words as agent binding upon it by calling him its professional adviser in the contest, making no objection to his advising a prospective competitor on the meaning of the offer, and by agreeing to the successful competitor’s interpretation of the offer as stated to him by the adviser by making him partial payment of the award for work already done.
    6. Building and construction contracts — mutuality of contract of employment of architect pursuant to prize contest. An award under a prize contest to select an architect for a'building is a mutual contract if the architect is not merely given a prize for a plan but is to supervise the building and may be compelled to do so after his acceptance of the award.
    7. Contracts — binding effect of requirement for ratification by offerer’s governing board,. A defendant is not liable under a contract which makes ratification thereof by its governing board an absolutely binding requirement, if such ratification is not secured, even though the refusal is arbitrary.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 19, 1927.
    Rehearing denied November 4, 1927.
    Kirkland, Patterson & Fleming, for appellant; Joseph B. Fleming, Louis G. Caldwell and Joseph H. Pleck, of counsel.
    Leo S. Mallek and Ewart Harris, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On July 28, 1925, Raymond M. Hood, the plaintiff, claiming that he had been employed by the Polish National Alliance of the United States of North America, the defendant, as an architect to design and supervise the construction of a proposed building, for which he was to receive six per cent on approximately $800,000, and that the defendant had broken its contract with him, brought suit in the superior court, for damages.

The issue, as it was finally made up and tried, arose as the result of an amended declaration and a general demurrer. The trial judge sustained the demurrer, and entered a judgment of nil capiat against the plaintiff. This appeal is from that judgment.

The only question here is whether the declaration states a cause of action. It is an elaborate document covering 20 or 30 pages of the record. One of the reasons for its seeming prolixity is that it contains, in full, a 10-page printed invitation and offer to architects to compete for the job of designing and supervising the construction of a proposed building.

The declaration alleges, first, the following: That the plaintiff is an architect; that the defendant is a fraternal beneficiary society, incorporated in Illinois; that it has power to own real estate and to build buildings necessary for its general purposes; that in the year 1923, it desired to build for its own use on a site which it owned in Chicago; that at a meeting of the Convention of the Alliance — the highest legislative body of the defendant — in 1923, a resolution was passed by a two-thirds majority of the convention authorizing and giving its president and board of directors unqualified power and authority to select by architectural competition an architect to design and supervise the construction and actual erection of the proposed -building at a cost of not to exceed $800,000; that pursuant to that resolution and in accord with its terms, the defendant, through its president and board of directors, prepared a program of an architectural competition, in printed form, which contained a general invitation to architects to compete, and. contained, also, the terms of the competition.

The declaration alleges, secondly, the contents of the program or offer. That document is entitled, “Architectural Competition for a new building for The Polish National Alliance, Chicago, Illinois, K. Zychlinski, President; John F. Singer, Chairman Building Committee. Professional Adviser R. C. Llewellyn, A. I. A., 38 So. Dearborn St. * * * Program for an Architectural Competition for a new office and -headquarters building for the Polish National Alliance * * *.” Though called a “Program,” we shall entitle it hereafter, what chiefly it is in the eyes of the law, an “offer.”

The preamble sets forth that the defendant, desiring to build an office and headquarters building on a site which it has secured, “invites architects to submit drawings in competition showing a design for a. building in accordance with the following program, the purpose of the competition being the selection of an architect to design and supervise the actual erection of the proposed building.”

Following the preamble, the document contains four major divisions, entitled, respectively, Program Part I to IV, both inclusive. These include in all, 20 different subjects, the text of which for convenience, we shall call sections.

Section 2, and entitled, “Authority,” is as follows:

“The President and Board of Directors of the Polish National Alliance have authority to select an Architect to prepare the plans for and supervise the erection of the building, and will hereinafter be referred to as the Owner. The action of the President and Board of Directors will be subject to ratification by the Supreme Convention of the Alliance which will be held the last week in August, 1924.”

Section 3, entitled “Architectural Adviser,” is as follows:

“The Owner (the defendant) has appointed as its Professional Adviser, R. C. Llewellyn, A. I. A. * * * Chicago, to prepare this program and to act as its adviser in the conduct of this competition.” .

Section 4 limits competition to those who apply to Llewellyn, its professional adviser, on or before June 10, 1924, and who give evidence satisfactory to him of their ability to do the work.

Section 5 provides for a jury of award of three architects and two members of the defendant.

Section 6 provides that the jury of award “will have authority to make the award and that its decision in the matter shall be final.” It also contains the following :

“The Owner further agrees to employ as architect for the work as more fully set forth hereinafter, the author of the design selected by the Jury as its first choice. ’ ’

Sections 7 and 8 pertain to the examination of the designs, the award and the report of the jury.

Section 9 provides for compensation for successful competitors as follows:

“The Owner agrees to pay to the successful competitor within ten days of the judgment, the sum of $1,000.00, as a partial payment on his fee for services as architect, as specified hereinafter.” It also provides for those who are ranked second and third, prizes of $750 and $500, respectively.

Sections 10 and 11 pertain to the exhibition of the drawings, and the use of unsuccessful designs.

Section 12, entitled “Communications” (Mandatory), is as follows:

“If any competitor desires information of any kind whatever in regard to the competition, or the program, he shall ask for this information by anonymous letter addressed to the Professional Adviser, and in no other way, * * * but no request received after July 15, 1924, "will be answered.”

Section 14 provides that drawings shall be delivered to Llewellyn, the Professional Adviser not later than August 12, 1924.

The second subdivision, “Program Part II,” pertains to the site, the cost, which is put at a maximum of $800,000, the cubage and drawings.

The third subdivision, “Program Part III,” is entitled, “Agreement Between Owner and Competitors.” It contains* in section 19, the following:

“In consideration of the submission of drawings in this competition, and the mutual promises enumerated in the subjoined ‘Conditions of the Contract between Architect and Owner,’ the Owner agrees,, and each competitor agrees if the award be made in his favor, to enter into a contract containing all the ‘ Conditions ’ here following, and until such contract is executed, to be bound by the said ‘Conditions.’ ” It also provides that in case of delay in proceeding with the construction, “payments to the Architect will be due only in proportion to and when his services are rendered. ’ ’

Section 20 is entitled, “Conditions of Contract between Architect and Owner.” It provides that

“The Architect is to supervise the execution of all the work committed to his control.” “The Owner is to pay the Architect for his complete services a sum equal to six per cent of the complete cost of the work, payments to be made as follows:
“Upon completion and approval of preliminary studies, one-fifth of the total estimated fee less the $1,000.00-previously paid; upon completion of working drawings and specifications, two-fifths more; and for detail drawings, supervision, and administration, the remainder of the fee from time to time in proportion as certificates are issued, * * *. If for any reason the work is at any time abandoned, the Architect shall be fully paid for services rendered in accord with the Schedule of Charges of the American Institute of Architects.”

The final subdivision entitled, “Program Part IV,” pertains to the detailed requirements of the building.

The declaration alleges, thirdly, certain conduct of both the plaintiff and the defendant, which, it is charged, took place after the offer was put forth. Those allegations are substantially as follows: That pursuant to the resolution passed by the convention of 1923, the defendant appointed Llewellyn, an architect, to draw up the printed offer, and to act as its adviser in the conduct of the competition; that it became his duty to consult with applicants wishing to take part, to receive and examine their applications, and to select those who were to be allowed to take part; that the defendant widely advertised the competition and announced through the press that architects desiring to compete should apply to Llewellyn for copies of the printed offer; that the plaintiff, accordingly, on May 19, 1924, applied to him and received a copy of the printed offer; that upon examination of it, as sections 6 and 7 of the offer provided that the decision of the jury of award was to he final and was to close the contract, set forth in sections 19 and 20, between the defendant and the author of the design selected by the jury as its final choice, and as section 2 provides that the action of the defendant’s president and board of directors was to be subject to ratification by the Supreme Convention of the Alliance, in August, 1924, “the plaintiff was unable to determine the nature of the defendant’s liability thereunder”; that he, the plaintiff, thereupon, before making application to enter the competition, it being the plaintiff’s intention not to become a competitor if the defendant was not irrevocably bound to employ the winner, of the first prize, to design and supervise the construction of the proposed building, went to Llewellyn and asked him to explain the meaning of section 2, and the nature of defendant’s liability thereunder; that the plaintiff told Llewellyn that he would not enter the competition if the defendant was not bound to pay $1,000 to the successful architect as a partial payment, as provided in section 9, and to employ him to design and supervise the construction of the building; that Llewellyn, acting within his authority, expressly told him, the plaintiff, that under the- terms of the “Program” the award of the jury was to be final, was not subject to refusal or ratification, that the defendant would be irrevocably bound to pay the winner of the first prize $1,000 within 10 days of the award, and to employ him to design and supervise the actual construction of the building as soon as the jury made its award, that the provision in section 2 of the “Program” with reference to ratification was not intended to, and did not, in view of the provisions of sections 4, 6, 7, 9, 19 and 20, make the liability of the defendant in any way dependent upon ratification by the Supreme Convention; that Llewellyn further advised the plaintiff that ratification by the Supreme Convention was a merely formal matter, and ratified acts of various bodies of the Alliance as a matter of course and in contemplation of such general practice the second sentence in section 2 was inserted without any intention to eliminate the liability of the defendant, which liability Llewellyn said bound the defendant to pay $1,000' to the winner of the competition, and automatically bound the defendant, upon the award of the jury, to enter into the contract set forth in Part III of the “ Program ”; that Llewellyn by saying what he did caused the plaintiff to believe that the defendant’s liability was as he, Llewellyn, represented it to be.

It was further alleged that on June 10, 1924, the plaintiff, relying upon sections 4, 6, 7, 9, 19 and 20, and relying upon what Llewellyn had said, as mentioned above, in explaining the “Program,” made a written application to enter the competition; that on June 14, 1924, as provided in- section 4, he was notified by Llewellyn that he was admitted to engage' in the competition; that he, the plaintiff, then prepared his design, and on August 12, 1924, in reliance upon sections 4, 6, 7, 9, 19 and 20, and upon what Llewellyn said, as above mentioned, submitted his design, which was accepted by Llewellyn, and, together with those of other architects, submitted to the jury of award composed of the president of the defendant, the chairman of the defendant’s building committee, and three eminent architects, which met on August 18, 1924, and on several other occasions, and on August 20, 1924, selected the plaintiff’s design as its first choice and awarded him the first prize; that the defendant thereby automatically closed the contract between it and the plaintiff and then became bound to pay to the plaintiff $1,000 as partial payment for his services and to employ him to design and supervise the actual construction of the proposed building.

It is further alleged that on November 21, 1924, the defendant paid $1,000 to the plaintiff as partial payment for his services, and wrote to him on that date, “Enclosed please find check for $1,000.00 as winner of first prize in the Architectural Competition held by the Polish National Alliance”; that by virtue of the action of the jury of award, on August 20, 1924, of the promises of Part III of the “Program,” and in consideration of the submission of plaintiff’s design and the awarding to him the first prize, the defendant entered into a contract with him, containing the conditions enumerated in section 20, under the terms of which the defendant agreed and became bound to employ him to design the proposed building and supervise its construction, and to pay him for his services, as provided in section 20, an amount equal to six per cent of the complete cost of the proposed building; that by virtue of the action of the jury of award, and in consideration of the submission of plaintiff’s design in the competition, and the awarding to him of the first prize, the defendant agreed, and became bound to pay to the plaintiff $1,000 within ten days after the award as a partial payment to the plaintiff as his fee as architect for the proposed building, which amount it paid.

It is further alleged that on August 20, 1924, the plaintiff was, and has been ever since, ready, able and willing to perform the contract on his part, yet, the Supreme Convention of the Alliance which met in the month of August, 1924, arbitrarily and without cause, failed to. ratify any action of the defendant in connection with the competition, and failed to ratify the award of the jury; and the defendant, though often requested to do so, has wrongfully failed and refused to perform its part of the contract in any manner, except that it paid to the plaintiff the $1,000 as provided in section 9; that the defendant has wrongfully failed and refused to employ the plaintiff to design, and supervise the construction of the proposed building, and has otherwise wholly disregarded the award of the jury and the terms and conditions of the competition, causing him damages to the extent of $75,000.

The amended declaration contains in addition to what has already been set forth, ten other counts.

Count 2 alleges that the Supreme Convention failed to ratify the action of the defendant or the award of the jury “for reasons entirely and wholly independent of the terms and conditions of the competition, and having no connection whatever with the merit of the plaintiff’s design” or his ability to perform.

Count 3 alleges that under the terms of the contract ratification was not a condition precedent.

Count 4 alleges that the contract properly construed provides that ratification was not a condition precedent to defendant’s liability, and contains no allegation concerning explanations made by Llewellyn.

Counts 5 and 6 differ from count 4, only in regard to the allegations concerning the refusal of the convention to ratify the selection of the plaintiff as architect. Count 5 alleges that the refusal to ratify was for reasons independent of the terms of the competition, and count 6 is drawn on the theory that no ratification was necessary.

Counts 7 and 8 contain no allegations concerning representations made by Llewellyn, and none concerning payments made under section 9. They differ only in their allegations concerning the reasons alleged for the refusal of the Supreme Convention to ratify the award, count 7 alleging refusal to ratify being without cause and arbitrary, and count 8 alleging refusal for reasons wholly independent of the competition and having no connection with the merit of plaintiff’s design or his ability to perform.

Counts 9, 10 and 11 are like counts 1, 2 and 3, respectively, save that in the former in describing the authority given the defendant by the convention in 1923, the word “unqualified” is eliminated.

In our judgment there is no doubt but that the written offer was ambiguous. In the view we take of the case, however, it is not necessary to go into the question whether the ambiguity is latent or patent. Certainly it was a very inartistic document.

For the defendant to state at the outset in its offer that the “purpose” of the competition was “the selection of an architect to design and supervise the actual erection of the proposed building”; to state in section 2 that it has “authority to select an architect to prepare the plans for and supervise the erection of the building”; to state in the same section that the action of the defendant “will be subject to ratification by the Supreme Convention”; to state in section 6 that it “agrees to employ as architect for the work * * * the author of the design selected by the jury as its first choice”; to state in section 7 that “The opening of the envelope containing the name of the author of the selected design will automatically close the contract between him (the plaintiff) and the owner”; to state in section 9 that the defendant “agrees to pay to the successful competitor within ten days of the judgment, the sum of $1,000 as a partial payment on his fee for services as an architect”; to state in section 19, “In consideration of the submission of drawings in this competition, and the mutual promises enumerated in the subjoined Conditions of the Contract between Architect and Owner,’ the Owner (defendant) agrees, and each Competitor agrees if the award be made in his favor, to enter into a contract containing all the Conditions ’ here following, and until such contract is executed, to be bound by the said ‘Conditions’”; to state in section 20, “The Owner (the defendant) is to pay the Architect for his complete services a sum equal to 6 per cent of the complete cost of the work, payments to be made as follows: Upon completion and approval of preliminary studies, one-fifth of the total estimated fee less the $1,000.00 previously paid * * *," is either to offer unqualifiedly to make a contract with him, that is, without ratification, or to offer to make a contract with him provided a third party, the National Convention, ratified what the defendant did, or to play fast and loose with the plaintiff, and pretend to offer something which it may be bound by, or repudiate as it sees fit. That the offer had some binding effect, and to some extent, at least, ratification was not a condition precedent, the defendant may be said to have admitted by actual paying to the plaintiff $1,000 as a “partial” payment for his services rendered and to be rendered. Certainly, if, as claimed for'the defendant, the second part of clause 2 “was fair warning to all concerned that the authority of” the defendant “was limited and their action subject to ratification by the Supreme Convention,” the defendant did not owe the plaintiff, there being no ratification, the $1,000 which was provided for in section 9, and which it paid either as a partial payment or otherwise. Having made that payment and to that extent having recognized and confirmed the offer as binding, without ratification, it does not seem reasonable to argue that it might thereafter claim that its whole offer was subject to ratification, and that Llewellyn did not have authority to say what he did. Proof that the defendant paid $1,000 as a partial payment certainly would be proof it did not consider that part of its offer was subject to ratification.

It is claimed by the defendant that the offer is the same as though, at the end of each of the sections 6, 7, 9, 19 and 20, there were the words, “subject to ratification by the Supreme Convention.” Even if that were admitted, we are of the opinion, however, that the allegations that the defendant through Llewellyn, its agent, waived any such meaning, and by inducing the plaintiff to rely upon the offer as one which would bind the defendant without ratification, it is not now entitled to the defense of a failure of ratification.

Three parties were involved in the offer, the defendant, which desired to put up a building, and so made a general offer to architects, the plaintiff, who competed and was successful and did certain work and was given a “partial” payment, and the Supreme Convention in section 2. It is alleged by the plaintiff that he applied orally to Llewellyn — who from the very terms of the offer and what was done by the defendant, must be considered as the authoritative agent of the defendant — and was told that ratification by the Supreme Convention mentioned was merely a formal matter, and that, relying upon the offer and what was said, he, the plaintiff, went to work, and took part in the competition and was successful, and was paid in part.

But it is claimed for the defendant that, although, those facts are alleged, proof of what was oral, owing to the offer being in writing, is incompetent. With that we do not agree. We think the plaintiff would be entitled to introduce evidence to show all that may have been said by Llewellyn on the subject of ratification, either to show what was to be understood to be the meaning of the particular words in section 2 in their relation to the whole offer, and, also, to show any and all acts of the defendant, such as the partial payment of $1,000, that might in any way bear on their mutual interpretation of what constituted the offer, what the understanding was, and what, if anything, their minds met on. The offer, when put forth, was not a contract. It was unilateral until some one else acted by way of a counter proposition or acceptance. It was in and by itself entirely inocuous and without legal effect. The plaintiff might accept it as it was written or otherwise. He did accept it in and by itself with the understanding given him by Llewellyn, and the defendant, by its conduct, ratified his acceptance by making a partial payment for services rendered. Walsh v. St. Louis Exposition & Music Mall Ass’n, 16 Mo. App. 502, aff’d 90 Mo. 459. This is not a suit against the Supreme Convention. It is not a party. The defendant may have made itself liable, even though against the will of the National Convention. The defendant by its conduct may have estopped itself, mauger the actual verbiage of the written offer itself. If the defendant, by Llewellyn’s authorized conduct in professing to interpret section 2, led the plaintiff to do a lot of work, and rely upon ratification as a merely formal act, then it is bound, notwithstanding what the offer stated about ratification by the Supreme Convention. The latter, as we have stated, is in no way involved in such a controversy. There is no claim that the defendant could not bind itself. If the building had been erected and the plaintiff had acted as architect and had supervised its construction, the defendant could not, on the ground that the Supreme Convention refused ratification, escape liability. Having received and accepted the work it would be bound.

It is claimed for the defendant that by the text of the offer Llewellyn did not have sufficient authority to bind the defendant by anything he said. But the language used in section 3, which gave him authority “to prepare this program (the offer) and to act as its (the defendant’s) adviser in the conduct of this competition,” and that of other sections,- such as sections 7, 8, 11, 12, 13 and 14, all go to show that Llewellyn was authorized to “give information of any kind whatever in regard to the competition, or the program.” It is true that it was provided in section 12 that information should be obtained only by anonymous letters addressed to Llewellyn; still, if Llewellyn, the professional adviser, saw fit to give, upon oral or written application of the plaintiff, information such as an interpretation of section 2 to the effect that ratification was merely a formal matter, and the plaintiff relied upon it, and later the jury made its award and the defendant sanctioned it, and the plaintiff was designated the successful competitor and was given a partial payment of $1,000, and meanwhile no objection was made by the defendant to the conduct of Llewellyn and the plaintiff, that they had acted in contravention of section 12, it, the defendant, must be considered as bound by the acts of its agent; manifestly as a matter of common sense it would be grossly unreasonable to hold otherwise. There is no implication of fraud or imposition; it was a practical situation, as alleged by the plaintiff, and, if proven as alleged, the defendant would be estopped, and considered legally bound by the conduct of its agent. Snead & Co. Iron Works v. Merchants Loan & Trust Co., 225 Ill. 442. In the latter case, the court approves the following language from Wells v. Carpenter, 65 Ill. 447:

“The true principle of sound ethics is to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he, in fact, did so understand and accept it. ’ ’ Street v. Chicago Wharfing & Storage Co., 157 Ill. 605.

It is urged for the defendant that the contract as alleged is void for mutuality. In our judgment, there is no doubt that the defendant would have the right to compel the plaintiff to perform, or failing to perform, to recover damages. For the defendant, the case of Tilley v. City of Chicago, 103 U. S. 155, is relied on. In that case, however, only prizes were offered, and the proposition or offer that was made did not provide that the successful architect would be entitled to act as architect for, and supervise the erection of the building. Palmer v. Central Board of Education of Pittsburg, 220 Pa. 568; Walsh v. St. Louis Exposition & Music Hall Ass’n, 90 Mo. 459; West Chicago Park Com’rs v. Carmody, 139 Ill. App. 635.

Further, it is urged that, assuming ratification was a condition precedent, the defendant could not escape liability if it were shown that the Supreme Convention arbitrarily and without cause refused to ratify. We are of the opinion that if the offer were to be interpreted as contended for by the defendant, that is, to the same effect as if the words “subject to ratification by the Supreme Convention,” were written in each section, then there might be good reason for holding —considering the offer without anything further— that the defendant was not liable. We are of the opinion that each of the counts 1, 2, 3, 8, 10 and 11 of the amended declaration stated a good cause of action. The judgment, therefore, will be reversed and the cause remanded with directions to overrule the demurrer to those counts.

Reversed and remanded with directions.

Holdom and Wilson, JJ., concur.


text:
    Sinclair Refining Company, Appellee, v. City of Chicago and Morgan A. Collins, Chief of Police of the City of Chicago, Appellants.
    Gen. No. 31,589.
    1. Estoppel — when not created by city official’s issuing permit beyond his authority. A city official who, in excess of his authority, issues a permit to erect a gasoline filling station closer to schools -and other buildings than allowed by ordinance does not by such act create an estoppel in pais against the city which will prevent it from forbidding further construction of the building, and this is true notwithstanding the owner of the' station has made expenditures and started work on erecting the station.
    2. Estoppel — as not springing from aldermanic custom. The custom of city aldermen to pass an order for a permit promised by one of them, does not create an estoppel in pais against the city to forbid work under an illegally granted permit, on its appearing that the owner knew such permit was contrary to ordinance but that he made investments in spite thereof.
    3. Municipal corporations — when council’s order for building permit a nullity. A council’s order permitting the erection of a filling station contrary to ordinance is a nullity if no application for permit has been filed as required by the city ordinances.
    4. Injunctions — when not issued to restrain interference with unauthorized, building of filling station. An injunction will not issue to restrain interference with the building of a filling station under a permit illegally issued, after the complainant undertook to install underground tanks contrary to ordinance, and to build closer to> public schools than permitted by ordinance, where the owner made its investments with knowledge of the law and facts, and without attempting to procure a proper permit from the city.
    5. Municipal corporations — repeal of ordinance by council order. A mere order of a city council granting a building permit, not passed and published as an ordinance, does not of itself operate to repeal a prior ordinance restricting the granting of building permits.
    6. Injunctions — when bill will lie on contention over building permit. A bill for injunction, rather than an action at law, is the proper remedy of a property owner who has secured the illegal issue of unrevoked building permits, and claims the mutual conduct of himself and city officials has created an estoppel in pais, and seeks to prevent the city from interfering with his building under the permits.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 19, 1927.
    Francis X. Busch, Corporation Counsel, for appellants; Frank J. Corr, W. Arnold Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Warren Pease, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the defendants, City of Chicago and Morgan A. Collins, Chief of Police of the City of Chicago, from a decree ordering them to refrain from interfering with the installation by the complainant of an oil station on certain property at the southeast corner of South Ashland boulevard and West Harrison street, Chicago.

The issue in the case was precipitated by an amended bill of complaint, filed by the complainant Sinclair Refining Company on April 17, 1925, in the superior court, the answer of the defendants, the City of Chicago and Morgan A. Collins, Chief of Police of the City of Chicago, filed April 22, 1925, and a general replication of the complainant, filed May 19, 1925. The matters involved were referred to a master in chancery. Evidence was taken before him, and after the close of the hearings he filed his report, containing the evidence, and recommending that the injunction prayed for be allowed. Upon consideration of the exceptions to the master’s report, the chancellor approved the report and the recommendation that the injunction be allowed, and entered a decree in accordance therewith.

The evidence shows, substantially, the following: The complainant is a. corporation authorized to transact business in Illinois, and is in the business of marketing petroleum and refined- petroleum products, and for that purpose has established a number of filling stations in Chicago for the purpose of distributing its products to consumers. Some time prior to July 27, 1923, the complainant, desiring to establish a new service station at the southeast corner of the intersection of West Harrison street and South Ashland boulevard, entered into negotiations with the owners of Lot 1 and the north 22 feet of Lot 2, being the property at the southeast corner of the streets just mentioned. The property has a frontage of 72 feet on South Ashland boulevard, and 148 feet on West Harrison street. On July 14, 1923, having obtained the written consent of the neighboring property owners, as required by ordinance, the complainant made a written application to the Bureau of Fire Prevention and Public Safety, of the Fire Department of the City of Chicago — one of the functions of which bureau was to issue permits for the installation of underground gasoline tanks in the City of Chicago — for a permit for the installation upon the premises in question of. three 1,000 gallon underground gasoline tanks. At the bottom of that application, under date of July 26, 1923, and signed by J. H. Hogenson, inspector, is the following:

“I hereby approve site for installation and certify that frontages are required, provided order is obtained from Council to overcome restriction, it being within 200 feet of a school.”

Following the qualified approval of Hogenson, the inspector, there appears, under the same date, the words, “Approved for permit,” signed by John C. McDonnell, chief of fire prevention and public safety.

A letter dated July 25, 1923, was introduced in evidence, signed “Alderman John Powers, Ald. 25 Ward, by Walter J. Powers, sec.,” addressed to McDonnell, chief of fire protection bureau, containing the following :

“Will you kindly issue to the Sinclair Refining Company necessary permits to install gasoline tanks on the premises known as 605 S. Ashland Boulevard? I will introduce an ordinance at the next meeting of the City Council granting the above permits.”

It is the evidence of Sullivan that at the time the permit was being issued, he himself objected to the issuance of the permit because the letter above mentioned was signed by Alderman Powers’ brother, but that he, Sullivan, issued it on the approval of McDonnell.

On July 26, 1923, a permit signed by J. C. McDonnell, chief of fire prevention and public safety was issued to the complainant to install three 1,000 gallon gasoline tanks on the property in question. It stated, among other things, the following:

“This permit is issued and accepted upon the condition that said tank shall be constructed, installed and maintained in accordance with and subject to all conditions, stipulations and requirements of the ordinances of the City of Chicago, and to all orders and ordinances which may be passed by the City Council pertaining to same, and to all orders of the Chief of the Bureau of Fire Prevention and Public Safety.” At the time the permit was issued, the complainant paid to the City, and the City has ever since retained, fees in the sum of $33.75.

It is the testimony of Sullivan, the head clerk of the bureau of fire prevention, that prior to the issuance of the permit, he stated to complainant’s representative that the complainant could not get a permit for the installation of the tanks in question unless the complainant got a letter from the alderman of the ward in which the complainant’s station was to be installed; that he (apparently meaning the alderman) was willing to introduce a council order at the nest meeting of the council to overcome that restriction, that is, to overcome the 200-foot restriction prohibiting a filling station within 200 feet of any church, school, theater, or hospital ground.

On July 27, 1923, the complainant bought the property in question for the sum of $26,000. At the time the property was purchased it was improved by a two and a half story brick building, fronting on Ashland boulevard, which building had a reasonable rental value of $100 a month, and a property value of $15,000. On October 13, 1923, the complainant wrecked and removed the building from the premises in question.

On October 15, 1923, the complainant was given a written permit by the West Chicago Park Commissioners to put in a cement carriage drive, and on November 17, 1923, complainant was given permission by the commissioner of buildings of the City of Chicago, to erect a one-story and basement brick service station, at 605 and 609 South Ashland avenue.

There was introduced in evidence from proceedings of the city council of Chicago the following: “Alderman D. A. Horan (for Alderman Powbrs, absent), presented an order directing the issuance of a permit to the Sinclair Refining Company for the installation of a filling station at No. 605 South Ashland Avenue, which was referred to the Committee on Gas, Oil and Electric Lights,” and there was, further, introduced, as part of the proceedings of the council at a meeting of November 21,1923, the following:

“The Committee on Gas, Oil and Electric Light, to whom has been referred (November 8, 1923, page 1122) an order directing the issuance of permits for the installation of a filling station at No. 605 South Ashland Avenue, submitted a report recommending the passage of a substitute order submitted herewith. Alderman Clark moved to concur in said report and to pass said order.
“ ‘The following is the order passed:
“ ‘ Ordered that the Chief of the Bureau of Fire Prevention and Public Safety be and he is hereby directed to revoke any permit or permits which have been issued by the Bureau of Fire Prevention and Public Safety for the installation and operation of a filling station on the premises, and known as No. 605 South Ashland Avenue. ’ ”

On November 20, 1923, the complainant put men upon the premises to begin the erection of the filling station and the installation of the tanks, and while they were at work, the complainant was notified by the police department, under the direction of Morgan A. Collins, to cease work on the installation of the gasoline tanks, and to cease breaking the sidewalk in front of the premises, and to stop erecting a service station thereon, under threat of immediate arrest.

On November 21, 1923, the complainant received through the mail from McDonnell, a letter informing it to cease all work under permit No. 8176 (being the permit in question) “for the reason that no Council order was obtained to overcome that part of the ordinance prohibiting a filling station within 200 feet of the grounds used for church, school, theater or hospital purposes. ’ ’ The complainant, accordingly, ceased work, and has done nothing further upon the premises under the alleged permits up to the present time.

On January 2, 1925, at a meeting of the city council, an order was passed directing the chief of the fire prevention and public safety to issue a permit to the complainant to install gasoline tanks in connection with the filling station to be located on the east 48 feet of the property at the southeast corner of South Ashland boulevard and West Harrison street — which is only part of the property described in the original application of July 14, 1923.

On February 9, 1925, the complainant sent a letter to the bureau of fire prevention and public safety, stating that it desired to amend its former application so as to provide for the installation of the tanks on only the east 48 feet of the property in question, and requesting a permit “in accordance with the provisions of an order passed by the City Council of Chicago, on January 2nd, 1925.”

On February 10, 1925, the fire commissioner of Chicago sent a letter to the complainant, in which it was stated that the fire commissioner had no authority to permit such an amendment, without the filing of a new application.

At the time in question, the ordinance of the City of Chicago — The Chicago Municipal Code, 1922, ch. 51— provided that it should be unlawful to install any tank or tanks, containing certain inflammable liquids, without first obtaining a permit from the chief of fire prevention and public safety, and section 2279 (b) of article 1 of chapter 51, provided that no tank or tanks should be installed on any lot or plot of ground “where any of the boundaries of any such lot or plot of ground are within 200 feet of the nearest boundary of any lot or plot of ground used for school, hospital, church or theatre. ’ ’

As there is no doubt from the evidence, in our judgment, but that the property in question was within 200 feet of a public school, church or hospital, and that the installation of the tanks on the premises in question would, therefore, be in violation of the ordinances of the City of Chicago, having particular reference to sections 2276, 2277 and 2279, of the Municipal Code of Chicago, and that the complainant was aware of the law and the facts, the question arises whether the issuance of the permit of July 26, 1923, signed by McDonnell, chief of fire prevention and public safety, issued as it was, and without any order or action of the city council, may be considered as giving the complainant, bearing in mind, also, what the complainant has invested in the property, since July 26, 1923, the right to restrain the defendants from interfering with the installation of the tanks, and, as a consequence, to restrain the defendants from interfering with the construction of certain driveways, and a filling station on the premises in question.

It is contended for the complainant that, inasmuch as it was informed by Sullivan, the head clerk of the bureau of fire prevention, that prior to the issuance of the permit it could not get a permit for the installation of the tanks in question unless it first got a letter from the alderman of the ward in which the tanks were to be installed, and that Sullivan stated that the alderman was willing to introduce a council order at the next meeting of the council to overcome the 200-foot restriction, and inasmuch as it obtained the letter of July 25, 1923, signed, “Alderman John Powers, Aid. 25 Ward, by Walter J. Powers, Sec.,” which was addressed to McDonnell, chief, of fire prevention bureau, and contained the following: “Will you kindly issue to the Sinclair Refining Company necessary permits to install gasoline tanks on the premises known as 605 S. Ashland Boulevard? I will introduce an ordinance at the next meeting of the City Council granting the above permits,” and as on July 26, McDonnell issued the permit, and as on the next day, July 27, it bought the property in question and thereafter spent a large sum in wrecking the building and preparing the property for an oil station, the city was not thereafter entitled to revoke the permit and prevent the installation of the tanks and the establishment of the oil station, although on July 26 at the time the permit was granted, the complainant knew that in order to overcome the restriction of the ordinance as to the property being within 200 feet of the school, church and hospital, it was necessary, in any event, to obtain an order from the city council, and that no such order had been passed.

Counsel for the complainant has called our attention to the following cases: Chicago, R. I. & P. R. Co. v. City of Joliet, 79 Ill. 25; Logan County v. City of Lincoln, 81 Ill. 156; Chicago & N. W. Ry. Co. v. People ex rel. Elgin, 91 Ill. 251; Martel v. City of East St. Louis, 94 Ill. 67; County of Piatt v. Goodell, 97 Ill. 84; City of Chicago v. Union Stock Yards & Transit Co., 164 Ill. 224; People v. City of Rock Island, 215 Ill. 488; People v. Wieboldt, 233 Ill. 572; People ex rel. Deddo v. Thompson, 209 Ill. App. 570; Melin v. Community Consol. School Dist. No. 76, 312 Ill. 376; Webster v. Toulon Tp. High School Dist. No. 4, 313 Ill. 541.

We, do not find, however, that any of them helps to establish the claim of the complainant. They do show that estoppel in pais may exist against a municipality, but, also, that each case depends upon its particular facts. Especial emphasis is placed on the decision in People ex rel. Deddo v. Thompson, supra, but it will be observed that the facts in that case are unlike those here. In the Thompson case the act relied upon as the foundation of the estoppel was an act of the city itself, an order made and enacted by its legislative body, the city council; whereas, in the instant case, the alleged estoppel is based solely and only upon the act of a ministerial officer — an act unauthorized by ordinance — in issuing the permit for the installation of the tanks. In Meltzer v. City of Chicago, 152 Ill. App. 334, the court said, the doctrine of estoppel in pais “does not apply where the city official has exceeded his authority in issuing a permit in violation of a city ordinance.” Citing Burton Co. v. City of Chicago, 236 Ill. 383; Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91. In the Meltzer case, the court further said, “Complainants were charged with knowledge of the ordinance and its provisions. They knew that the structure which they proposed to put on the roof of their building would be, when erected, within a few feet of the adjoining building, and they should have known that it was prohibited by the ordinance. As said in J. Burton Co. v. City of Chicago, supra, complainants, in applying for a permit, must have known the commissioner had no power to grant it. The permit itself purports to be issued in pursuance of the ordinances of the city. The issue of the permit gave no right to complainants because the commissioner who signed it was without authority to issue it. He was prohibited from issuing the permit by the ordinance. ‘Every person is presumed to know the nature and extent of the powers of municipal officers, and therefore cannot be deemed to have been deceived or misled by acts done without legal authority. ’ Seeger v. Mueller et al., 133 Ill. 86, 95; City of Danville v. Danville Water Co., 178 id. 299; City of Chicago v. Williams, 182 id. 135.”

In Wise v. City of Chicago, 183 Ill. App. 215, this court re-emphasized the principle, as announced by Mr. Justice Smith in the Meltzer case, that the issuance of a permit by a city official in violation of a city ordinance does not give rise to an estoppel in pais.

The complainant, knowing the law and, also, the fact that at the time the permit was issued, the city council had not acted in the matter, and, as a consequence, that it, the complainant, had no legal right to a permit, by what logic can it now claim that it was misled by the conduct of McDonnell? If the complainant did work and incurred expense knowing at the time that it could not, without affirmative action by the city council, legally establish an oil station on the property in question by reason of its nearness to a public school, by what reasoning may it now claim that it was deceived, not by an order or any action of the city council, but merely by the acts of a city employee? It was not led along to its detriment, as the petitioner in the Thompson case, supra, by an act, an order of the municipality itself, acting by and through its legislative body, the city council. Mr. Justice Scott said in Logan County v. City of Lincoln, 81 Ill. 156, 159, “Before the doctrine of estoppel can be invoked, there must have been some positive acts by the municipal officers which may have induced the action of the adverse party, and where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had done.” To hold that merely the acts of an employee could be the basis for such an estoppel as is claimed in the instant case, would be going in the direction of suspending and repealing ordinances without any action on the part of the city council; in other words, making acts of the employees or agents, though beyond the scope of their authority, and known by the parties to be such, the equivalent of legislation.

There does not seem to be any equity in the complainant’s claim. The money it spent was not induced by any deceit or fraud, or misrepresentation. All the time it knew of the ordinance and knew all the obstacles and all the facts, it went on with its work with full knowledge that no legal permission had been obtained and might be refused. Such a situation, of course, lacks the essential elements of an estoppel.

The only action taken in the matter by the city council, as to the property in question, at any time between July 26, 1923, when the application was filed, and April 17, 1925, when the bill was filed, was the passing of an order on November 21, 1923, to revoke the permit, and throughout all that period from the time of filing the application, which was before it, the complainant, even purchased the property in question, it actually knew and was, informed that it could not without at least an order of the city council obtain a legal permit. That being the situation, we are of the opinion, as stated above, that there is no equity in complainant’s claim; and that it failed to prove that the defendant was estopped to revoke the permit for the installation of the tanks. Whether or not, if the complainant had seasonably obtained an order of the city council in addition to what it did get, an estoppel in pais would have arisen, although the installation of the tanks would be in direct violation of the ordinance, we are not called upon to decide. That general subject is discussed fully in Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91. Of course, if the complainant had no right to install the tanks with an order, a fortiori, as here, he had none without an order.

It is urged by the complainant that “where the alderman of the ward undertook to introduce and presumably advocate the passage of a council order for a permit to complainant to install its tanks, it may reasonably be inferred that this is a practice, and that upon the intervention of the alderman of the ward where the property lies, the other aldermen, as a matter of aldermanic courtesy, will assist in getting some kind of a pretended authorization of the City Council to override the ordinance,” that “it is small wonder that complainant felt that it could rely upon it and based its subsequent conduct upon a custom”; that it is a “condition out of the ordinary” — referring to People v. City of Rock Island, 215 Ill. 488, and People ex rel. Deddo v. Thompson, 209 Ill. App. 570 — and that an estoppel in pais arises to prevent injustice. In our judgment, the facts do not justify that conclusion. On the other hand, they rather tend to show a reckless ■willingness to purchase property and spend a large sum of money in converting it into an oil station, at the obvious peril of being unable to obtain the requisite legal authority provided for by the ordinances of the city.

As to the order of January 2, 1925 — which was more than a year after the permit in question had been revoked, and all of the things done which were relied upon to create an estoppel had taken place — in regard to the east 48 feet of the property in question, no application had ever been filed, and the order was therefore a nullity; further, no argument is made that the complainant is entitled to the relief prayed for by reason of that order.

In our judgment there are a number of reasons why the complainant is not entitled to the relief it asks; first, it undertook to install underground gasoline tanks in violation of sections 2276, 2277 and 2279, article 1, chapter 51 of the Ordinances of the City of Chicago; second, the permit which it received was in violation of section 2279 (b), and it was seasonably informed by the city to that effect; third, it did not obtain from the city council as a foundation of a possible estoppel in pais any order waiving the restriction of 2279 (b); and four, it bought the property and undertook to erect an oil station thereon after it was informed by a representative of the city that an order of the city council was a prerequisite. Of course, if the complainant had obtained an order of the city council for a permit, arid relied thereon, and subsequently had made the investments which it did, it would have some claim to an estoppel in pais — as in the Thompson case — even though a mere order by the council not passed and published as an ordinance of the city, purporting to waive the 200-foot restriction of section 2279 (b), would not constitute, in and of itself, a repeal of section 2279 (b). Hibbard, Spencer, Bartlett & Co. v. City of Chicago, supra.

It is claimed for the defendants that the bill will not lie; that the complainant had an adequate remedy at law. Considering, however, that the prayer for relief was based on a claim that the complainant had three permits, that of July 26, 1923, issued by the bureau of fire prevention and safety to install underground tanks, that of August 21, 1923, issued by the street department to construct two driveways, and that of November 17,1923, issued by the department of buildings to erect a one-story and basement brick service station; and on the claim that none of them had been revoked, and that the mutual conduct of the parties brought about an estoppel in pais, we are of the opinion that the gravamen of the bill was such that there was no adequate remedy at law, and that a court of equity was the proper forum. Moore v. Gar Creek Drainage Dist., 266 Ill. 399, 404. Gulf Lines Connecting R. of Illinois v. Golconda Northern Ry., 290 Ill. 384, 392. Lowery v. City of Pekin, 186 Ill. 387, 398. City of Peoria v. Johnston, 56 Ill. 45, 52.

For the reasons stated, the decree will be reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions,

Holdom and Wilson, JJ., concur.


author: Mr. Justice Holdom

text:
    In re Petition of Frank B. Buszin, Appellant, v. Frank Bestmann, Appellee.
    Gen. No. 31,536.
    1. Executions — binding effect of judgment that malice is gist of action. The judgment of the circuit court that malice was the gist of an action is res adjudicata in a proceeding under the Insolvent Debtor’s Act, Cahill’s St. ch. 72, in which the judgment debtor seeks release from arrest upon a writ of capias ad satisfaciendum under the judgment, and will remain binding until reversed in a direct proceeding.
    2. Executions — malice as gist of action to recover money obtained under false pretenses. Where the declaration in an action of trespass on the case avers that a certain note and mortgage were fictitious, that defendant knowingly, fraudulently and maliciously sold and delivered the note to the plaintiff in order to obtain $1,200, the purchase- price, and fraudulently and maliciously appropriated and converted such amount to his own use, and the jury, finds that defendant was guilty of the wrongful, fraudulent and malicious conversion of the money of plaintiff and assess plaintiff’s damages at such sum and the accrued interest, the gist of the action is malice, and defendant cannot be discharged, under the Insolvent Debtor’s Act, Cahill’s St. ch. 72, from arrest upon a writ of capias ad satisfaciendum issued on the- judgment entered therein.
    Appeal by plaintiff from the County Court of Cook county; the Hon. I. L. Weaver, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 19, 1927.
    Rathje, Wesemann, Hinckley & Barnard, for appellant.
    Benson, Fitch & Heinemann and George W. Ludden, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The appellant, Frank B. Buszin, arrested upon a writ of capias ad satisfaciendum from the circuit court of Cook county on a judgment for $1,293.15, filed a petition for a discharge from imprisonment in the county court of Cook county under the Insolvent Debtors’ Act, Cahill’s St. ch. 72. The cause was heard by the court and the court held as a matter of law that a transcript of proceedings in the circuit court stated a case where malice was the gist of the action and dismissed appellant’s petition and remanded him to the custody of the sheriff of Cook county. Appellant seeks by this appeal to reverse the order of the county court.

The declaration in the circuit court avers that a certain note and mortgage were fictitious and that appellant “knowingly, fraudulently and maliciously sold and delivered said alleged principal note of Twelve Hundred Dollars ($1,200) to plaintiff, in order to obtain said sum and then and there fraudulently and maliciously appropriated and converted said Twelve Hundred Dollars ($1,200) to his own use for the purpose then and there of depriving plaintiff of said sum.”

Appellant allowed a judgment to go against him in the circuit court by default. It appears that the interest upon said $1,200 was paid until the second day of January, 1924. The cessation of the payment of interest seems to have put the appellee upon inquiry as to the genuineness of the transaction, and that he discovered from his investigation that the maker of the note was not, and never had been, the owner of the real estate mortgaged by the maker of the notes to secure their payment. The verdict of the jury on the trial of the case in the circuit court by default was, “We,’the jury find the defendant guilty of the wrongful, fraudulent and malicious conversion and appropriation of the money of the plaintiff to his own use and assess plaintiff ’s .damages at twelve hundred seventy-eight and No/100ths Dollars.”

Appellant contends that malice was not the gist of the action.

It is clear that appellee confided in the representations of appellant as to the notes being secured by a valid mortgage on real estate. This representation was false and is not denied. Further the judgment of the circuit court is res adjudicata as between the parties. The jury found that the conduct of appellant was malicious, and until the judgment of the circuit court is reversed, it is binding upon all the parties to it. This court does not review the circuit court judgment, neither was it the duty of the county court on hearing of appellant’s petition for his release from imprisonment to sit as a court of review upon the judgment of the circuit court. That judgment binds the parties in the county court and is also binding on this court and will so remain until in some direct proceeding that judgment is challenged in a court of review and reversed. The very fact that appellee made no inquiries regarding the title of the mortgaged property made to secure the notes is cogent proof that appellee confided in appellant’s representations in relation thereto. Seney v. Knight, 292 Ill. 206, is similar on fact and law to the case at bar,_ wherein the defendant was charged with wilfully, maliciously, tortiously and fraudulently converting certain bonds, and the Supreme Court held that malice was the gist of that action, and that refusal to discharge the defendant under the Insolvent Debtors’ Act was without error. To a similar purport is Greener v. Brown, 323 Ill. 221.

It is true, as contended by appellee, that appellant was not found guilty in the circuit court of appropriating and converting the sum of $1,278, but the jury found that appellant was guilty of the wrongful, fraudulent and malicious conversion and appropriation of the money of the plaintiff, which was $1,200, and then assessed the damages at $1,278, which was the amount of which appellee was defrauded plus accrued interest.

In Greener v. Brown, supra, the court said: “The sole question controverted in this court, under the pleadings, is whether malice was the gist of the action. The jury in the circuit court found plaintiff in error was guilty of conversion. The action was one in tort based on fraudulent conversion. Malice, as that term is used in cases of this character, does not necessarily mean hatred or ill-will, hut pertains to wrongs which are inflicted with an evil intent, design or purpose. Such malice may he shown by showing that the guilty party was actuated by dishonest motives with intent to perpetrate an injury. (Seney v. Knight, 292 Ill. 206; Kitson v. Farwell, 132 id. 327; First Nat. Bk. of Flora v. Burkett, 101 id. 391.) ” See also In re Petition of Sankstone v. People, 175 Ill. App. 653; Mahler v. Sinsheimer, 20 Ill. App. 401; In re Petition of Brown v. People, 237 Ill. App. 537.

When appellant by false representations obtained from appellee the $1,200, he was in law actuated by malice.

The county court having correctly held that the gist of the action in the circuit court was malice, the judgment is affirmed.

Judgment affirmed.

Taylor, P.J., and Wilson, J., concur.