text:
    The People of the State of Illinois, Defendant in Error, v. Christ Pederson, Plaintiff in Error.
    Gen. No. 7,749.

      Opinion filed April 11, 1928.
    Jack E. Bairstow, for plaintiff in error.
    Ashbel V. Smith, State’s Attorney, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

An information consisting of four counts was filed in the county court of Lake county against plaintiff in error, Christ Pederson. The first count charged that on August 10, 1927, he possessed intoxicating liquor with the intent to sell and use the same in violation of the provisions of the Prohibition Act, Cahill’s St. eh. 43, A1 et seq. The second count contained the same charge, except that the date of the alleged offense was laid on November 4, 1926. The other two counts, charging unlawful sales, were nolle prossed. Plaintiff in error was convicted on said first and second counts. He was sentenced to 90 days’ imprisonment on the first count and to pay a fine of $100' on the second count.

The court did not err in overruling a motion to quash the search warrants on the ground that they had been issued by a justice of the peace. That precise question was, in our judgment, properly decided contrary to the contention of plaintiff in error in People v. Blenz, 239 Ill. App. 318.

It is contended that the search warrants were void because they were based upon insufficient affidavits. Section 29 of the Prohibition Act, Cahill’s St. ch. 43, II30, provides that the affidavit shall state the facts upon which the affiant bases his belief that intoxicating liquor is unlawfully possessed or sold. The statement contained in the affidavits in the case at bar is, “that intoxicating liquor is possessed and sold there in violation of the law.” The language states a charge but no fact to base it on. It does not disclose what grounds the affiant had for making it or believing it. (People v. Martin, 314 Ill. 110.)

A complaint must state the facts upon which the affiant bases his belief that an offense has been committed, and the facts so stated must show just and reasonable grounds for such belief. (People v. Billerbeck, 323 Ill. 48.) The facts must be stated with sufficient definiteness so that if they are false, perjury may be assigned on the .affidavit. (People v. Elias, 316 Ill. 376.) Our conclusion is that the affidavits were insufficient and the search warrants issued thereunder were void and should have been quashed. For the reason we have given, it was error to admit the evidence obtained by reason of the search warrants.

The charges in this case are grounded on section 28 of the Prohibition Act, Cahill’s St. ch. 43, 1Í 29, and not on section 3 of the act, Cahill’s St. ch. 43, 3. Under the charges made by the information, it was necessary to prove that the defendant intended to sell the intoxicating liquor in violation of law. No evidence was offered even tending to establish that intent, unless it can be said that mere possession of intoxicating liquor tended to prove it.

. Possession of intoxicating liquor, if unauthorized, will offend against section 3, but, if authorized, as the act provides, will not violate that section. The possession of intoxicating liquor to constitute an offense under section 28, Cahill’s St. ch. 43, ji 29, must be with the intent to use it in violation of the act. If that intent exists, it makes no difference whether the possession is lawful or unlawful. The intent to sell or unlawfully dispose of the liquor is the gist of the offense under section 28. (People v. Barnes, 314 Ill. 140.) Unless the intent is both averred and proved, there can be no conviction under that section. (People v. Martin, supra.) To the same effect is People v. Peiscz, 226 Ill. App. 363.

An offense under section 28, Cahill’s St. ch. 43, if 29, was charged in the information and it now becomes necessary to examine the record to see if there is proof of an intent to sell. It is admitted that the possession of the liquor was unlawful and in violation of section 3 of the Prohibition Act, Cahill’s St. ch. 43, ff 3, but the defendant denied on oath that he had ever sold any of it or intended to sell any of it. He testified that he kept it for family use only. If his testimony was true, and believeil by the jury, it constituted a complete defense to the charges brought under section 28, Cahill’s St. ch. 43, ff 29. But the trial court took the position that mere possession of intoxicating liquor tended to prove an intent to sell or dispose of it contrary to law, and that no matter if the defendant denied such intent, a prima facie case nevertheless existed against him because of the provisions of section 40 of the act, Cahill’s St. ch. 43, If 41.

The fourth instruction on behalf of the People is in the language of that section and advised the jury that possession of intoxicating liquor by any person not authorized to possess it shall be prima facie evidence that such liquor is kept for the purpose of being sold, etc. In People v. Beck, 305 Ill. 593, the Supreme Court approved a similar instruction, but in that case the defendant was charged with unlawfully possessing intoxicating liquor contrary to the statute. There was no charge that such possession was with an intent to sell or use it in violation of any law. There is no apparent reason for an application of the provisions of section 40, Cahill’s St. ch. 43, If 41, to a prosecution brought under section 3, Cahill’s St. ch. 43, If 3, as the latter section does not deal with sales, or with any use of intoxicating- liquor but with possession only.

Section 40, Cahill’s St. ch. 43, If 41, does not make the possession of intoxicating liquor prima facie evidence that such possession is unlawful, but makes the unauthorized possession of it prima facie evidence that such liquor is kept for the purpose of being disposed of in violation of the provisions of the act. (People v. Martin, supra.) That is to say, where unauthorized possession is shown in a prosecution under section 28, and no evidence is offered to justify or excuse it, such possession makes a prima facie case of an intent to dispose of the liquor contrary to law. But where proof is offered tending to rebut the presumption, the prima facie case vanishes, and the jury must determine from the whole evidence whether or not the guilt of the accused has been proven as charged beyond all reasonable doubt.

In this case there was testimony offered denying any intent to unlawfully dispose of the liquor. When that evidence was produced, the prima facie case disappeared and no instruction should have been given as to what constitutes a prima facie case or what is its effect. (People v. Tate, 316 Ill. 52; Johnson v. Pendergast, 308 Ill. 255; Grosh v. Acom, 325 Ill. 474; People v. Sikes, 328 Ill. 64.)

For the errors above pointed out, the judgment of the county court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Jones

license: Public Domain

text:
    Mary Jane Beard, Appellee, v. Haskell Park Building Corporation, Appellant.
    Gen. No. 7,819.

      Opinion filed April 11, 1928.
    North, Linscott, G-ibboney & North, for appellant.
    Knight & Swenson, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

This suit was brought to recover for goods stolen from a trunk stored by plaintiff in the trunk room of an apartment building owned by defendant. A jury returned a verdict for plaintiff in the sum of $942. From a judgment on the verdict this appeal is prosecuted.

Appellant is a corporation, owning and operating a 5-story brick apartment building at the corner of two intersecting streets in the city of Eockford. The first floor of the building is divided into three storerooms, a lobby, and-janitor’s quarters. The house hostess in the lobby could see anyone coming into the building from either of the two street entrances, her duty being the care of the service within the building. Any package coming or going would first have to come to her attention. There is' a service entrance in the rear of the building directly opposite the janitor’s living room. It opens onto a stairway leading to the basement. The trunk room is in the basement and to reach that room it is necessary to pass the janitor’s room and either the boiler room or the workroom where repairs are made.

The janitor, with his wife, lived in the building a short distance from the trunk room, and from his room it was possible to hear anyone walking to the trunk room. Either the janitor or his wife were always there in the daytime. His duties were to take care of the boiler and basement and do odd jobs. He acted as watchman and custodian of the trunk room. He testified that the door of the trunk room was always locked at night, and sometimes in the daytime; that as a part of his duties, he always watched the trunks and people who came around there. The key to the trunk room door became lost, but it is not clear whether it was lost before or after the contents of the trunk were stolen. He also testified that the room was always locked at night with another key.

Plaintiff, a school teacher in Rockford, was preparing to leave the city for the summer, following the close of the school term in June, 1926. Desiring to obtain an apartment in appellant’s building for the next school term, she and her friend, Lois Morris, called on appellant’s agent, Johnson, about June 1st. The next day a written lease for the apartment, dated June 2, 1926, was executed between the parties for a term to commence August 31,1926, and ending June 17, 1927, at a rental of sixty-five ($65) dollars per month. The lease contains no reference to the storage of trunks or other articles. She paid $20 on the rental of the apartment to Johnson, before the execution of the lease, and it was credited on the first month’s rent. The balance of the rent for that month was paid August 30th. She and Johnson had a conversation about the storing of her trunk during the summer months. She testified that after she paid the $20 but before the lease was signed, she told Johnson she had some things she wanted to store, and asked him if he had a place; that he replied there was a storeroom and that she was perfectly welcome to store her things in it. In this she is corroborated by Miss Morris.

Johnson testified that at the time the lease was entered into, no arrangement was made for the storage of any trunk, but that about 10 days or two weeks afterwards, Miss Beard called him by telephone and asked if she could keep her trunks in the apartment for storage during the summer; that he asked her if there was anything in the trunks, and she replied there was nothing of any value; that he explained that there was a storage room in the building for the storage of empty trunks- but that the company would assume no liability for the loss of any contents of a trunk. This is denied by appellee. Johnson also testified that at the time he had the conversation with appellee and Miss Morris, he explained the custom about the use of the building and the service furnished, and that the rental was paid for the use of the apartment only. Miss Beard testified that she sent her trunk to the building on June 19, 1926; that she followed it about two hours afterwards, and went down to the storeroom with the janitor; that the trunk was standing on end and she asked him to set it down because it was not packed tight; that he did so and then showed her out, locking the door after them; that she saw a number of trunks and other things in the room, but particularly noticed only the trunks.

It is conceded by both parties that the maids employed by appellant used the storeroom for their pails and equipment; that only empty trunks were ordinarily stored there, and that the contents of plaintiff’s trunk were stolen after it was stored. Appellee’s itemized statement of the articles that she claims were in the trunk includes a solid gold watch, four pairs of earrings, five rings, one large necklace, a bracelet, two strings of beads, two bar pins, a jewel case and other articles, besides expensive wearing apparel. She placed their aggregate value at $942 and stated that that was less than she paid for them. The necklace and two of the rings are alleged to be heirlooms and two of the dresses are valued at $80 each.

The record does not show, and appellee does not claim, that she gave appellant any information whatever that her trunk contained heirlooms, jewelry, and expensive wearing apparel. According to her own testimony, she merely asked to store some “things.” We think the evidence shows sufficient facts known to appellee to bring notice to her that the character of the storage was not such as to warrant her in placing valuables worth almost $1,000 in a trunk and leaving it there for storage without apprising appellant of the true character and value of the articles.

In her brief, it is intimated that the storage of her goods was incident to the operation of the building as an apartment hotel and was one of the services for which she was to pay. There is no evidence in this case to warrant the assertion that the building was operated as a hotel or that appellee so considered it. It is clearly shown by the testimony that it was an apartment building and that she knew it. The earnest money on the lease, according to her testimony, was paid before she asked permission to store her things, so that the storage was not contemplated in the leasing of the apartment. She treated the permission as a gratuity and under such circumstances the law raises the presumption that she knew the degree of appellant’s liability incident thereto. She saw the character of the storage room when she left her trunk there.

She takes the position that leaving the door unlocked in the daytime was gross negligence, in that the maids and employees had access to it. ' A storage room located in the basement of an apartment house near the boiler room and in which the maids kept their pails, mops and other utensils, would not appear to an ordinarily prudent person as a safe or proper place to keep jewelry and expensive clothing worth nearly $1,000. She did not inform appellant that the contents of her trunk were of any great value. The record does not tend to show that the maids and. employees, who had access to this room, had anything whatever to do with the disappearance of the contents of plaintiff’s trunk.

We think it unimportant under the facts in this record, whether the situation discloses a gratuitous bailment or one for the benefit of both parties. It is well settled that a bailee for hire is not an insurer but owes the bailor a duty of ordinary care. As bailee, appellant was bound to exercise such care and diligence as every prudent man takes of his own gpods of like character. Ordinary diligence means that degree of care, attention or exertion, which under the circumstances, a man of ordinary prudence and discretion would use in reference to the particular thing, were it his own property. Where the bailor has shown the goods were received in good condition by the bailee and were not returned to the bailor on demand, the bailor has made out a case of prima facie negligence against the bailee, and the bailee must then show the loss or damage was caused without his fault. The effect of this rule is not to shift the burden of proof from plaintiff to defendant, but simply the burden of proceeding. The bailor in all instances must prove that the bailee was negligent; but when he shows that the goods which he intrusted to the bailee’s care were not delivered upon demand, he has made out a prima facie case or created a presumption of negligence, which the bailee may overcome by offering evidence to show that he was not negligent. (Rhodes v. Warsawsky, 242 Ill. App. 101; Miles v. International Hotel Co., 289 Ill. 320.) It is also the rule that where the failure to deliver is explained by the fact that the goods have been stolen, or destroyed by fire, and the bailee is no longer able to deliver them, the law will not presume negligence, and the onus or burden of proving the same is upon the bailor. The mere fact that a bailee’s servant stole the property does not cast upon the bailee the burden of showing want of negligence in selecting and keeping such servant, but the burden is on the bailor to show negligence in this respect on the part of the bailee. (Rhodes v. Warsawsky, supra.) The servants employed were of good reputation, and it is not disputed that they were com-potent and trustworthy. Miss Beard testified that after the loss she heard a conversation in which a representative of appellant told the janitor that the maids had no business in the storeroom; that their things should be removed; and that he also told the janitor he should have placed a padlock on the door, when he was told of the loss of the key. She urges that this shows appellant admitted its negligence. The fact that maids of good reputation had access to the room in the daytime, when the janitor was there or in the vicinity, does not tend to show negligence. The loss of one of the keys is not sufficient to show negligence on the part of appellant in protecting a room for the storage of supposedly empty trunks. But however that may be, there is no evidence to show that the key was lost before and not after the goods were stolen. We do not think the record in this case warrants a recovery by the plaintiff and the trial court should have directed a verdict for the defendant.

The sixth instruction given on behalf of appellee informed the jury that where goods are intrusted to a bailee and he does not return them upon demand, then the bailor has made out a prima facie case of negligence. The instruction is not only an abstract proposition of law, but as applied to the facts in this case was incorrect and has been repeatedly held to be reversibly erroneous. In a case, as in this one, where evidence is offered tending to rebut the presumption of negligence, no prima facie case thereafter exists and no instruction as to what constitutes a prima facie case or as to its effect should be given. (Johnson v. Pendergast, 308 Ill. 255; Grosh v. Acom, 325 Ill. 474; People v. Tate, 316 Ill. 52.)

Appellee’s eighth instruction told the jury that in case of failure to deliver a bailed article upon demand, the law presumes negligence on the part of the bailee, and imposes upon him the burden of showing he exercised such care in respect to the property as was required by Mm under the circumstances surrounding the baihnent. The presumption of negligence arises where a bailee does not account for the loss either by fire or theft, or does not show that the loss was a mystery. But where the failure to deliver is explained by the fact that the goods have been stolen or destroyed by fire, the law will not presume negligence and the onus or burden of proving the same is upon the bailor. (Rhodes v. Warsawsky, supra.) The instruction was not a correct statement of the law applicable to this record.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Boggs

text:
    William Frieling for use of Henry Dummer, Appellee, v. Frank P. Emling and Joseph Smith, Appellants.
    Gen. No. 7,887.

      Opinion filed April 14, 1928.
    Amos H. Eobillard and C. M. Granger, for appellants.
    H. H. Whittemore, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellee Henry Dummer filed an affidavit in the circuit court of Kankakee county on November 16, 1922, setting forth that he had recovered a judgment for $2,315 against one W. C. Frieling, on which execution had been returned “No property found”; that said Frieling had no property liable to execution, praying garnishment process against appellants, partners, etc., one F. G. Wilson and one Mary Frieling.

Interrogatories four and five to be answered by appellants were as follows:

“4. If they purchased ‘a certain stock of merchandise in bulk in store and business at Bonfield, 111., from said Frieling’; if yes, give details of transaction in full.

“5. If as such purchasers they complied with the Bulk Sales Act, by securing a statement and giving notice to creditors.” The answer to the fourth interrogatory was “that they did purchase a certain stock of merchandise in bulk in store and business at Bonfield, Illinois, from W. C. Frieling, and took possession of same on October 27, 1921, and agreed to pay and actually paid him $1,000.00 therefor and that said agreement was oral.” To the fifth interrogatory, appellants answered that “they did not comply with the Bulk Sales Law, said transaction not coming within the scope thereof or being subject thereto.”

At the close of appellee’s evidence, the proceeding was dismissed as to the defendant Wilson and the court directed a verdict for defendant Mary Frieling. At the close of all the evidence, the court directed a verdict in favor of appellee, and rendered judgment thereof against appellants and in favor of William Frieling for the use of appellee Henry Dummer for $1,000. To reverse said judgment, this appeal is prosecuted.

The record discloses that prior to 1919, Frieling conducted a grocery, hardware, dry goods and general merchandise store, a grain elevator, a coal yard and a farm implement store at Frieling Station, where he resided. In the latter part of 1919 or the early part of 1920, Frieling opened a general merchandise store at Bonfield, a station some 2.3 miles from Frieling Station. In reference to the operation of the Bonfield store, appellants’ brief and argument contains this statement: “He (Frieling) was accustomed to purchase lots of goods, and place part in the Frieling Station and part in the Bonfield store. The actual selling operations of the Bonfield store were confided to two clerks, employees of Frieling, whose wages he paid. A daily report of the Bonfield business was made to him at Frieling Station, and he daily received at Frieling Station a tally sheet from the cash register at Bonfield.” Said statement further sets forth that on September 1,1921, “he had a stock of general merchandise at Frieling Station worth $3,000.00, a similar, stock at Bonfield worth $1,000.00, elevator, grain and coal worth $8,000.00 at Frieling Station, and $10,000.00 worth of implements also at Frieling Station.”

The question arising on this record is as to whether, on the facts disclosed, the court erred in directing a verdict against appellants, garnishees. It is the contention of appellants that the sale of the Bonfield store did not amount to “the sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise * * * otherwise then in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business,” as contemplated by Cahill’s St. ch. 121a, H 1. In other words, counsel insist that the business being transacted by Frieling at Frieling Station and at Bonfield constituted but one business, and that the sale of the Bonfield store was the sale by Frieling of only a small part of his business, and that therefore the Bulk Sales Law, Cahill’s St. ch. 121a, [¶] 1 et seq., would not apply.

In Ogden Avenue State Bank v. Cherry, 225 Ill. App. 201, the court at page 206 in discussing a similar question, says:

“It is further insisted that the Bulk Sales Statute [Cahill’s 111. St. ch. 121a, [f 1] is not applicable to the facts of the present case, and in support of this contention it is said that the evidence shows and that the decree finds that the defendant, Sam Cherry, at the time of the sale of the property in question, was engaged in the wholesale and retail grocery business in Chicago and was conducting two other stores similarly equipped ‘with fixtures and stocks of merchandise for the sale of groceries,’ in which latter store there was merchandise of the value of $56,000; that the sale of the whole of the merchandise and the fixtures contained in the premises at 657 Maxwell street, together with the lease of said premises, did not constitute a sale in bulk of the major part of the merchandise otherwise than in the ordinary course of trading within the meaning of the statute. We do not agree with this contention.

“The evidence shows that before the sale Sam Cherry conducted a separate'and distinct retail grocery business at 657 Maxwell street; that at the time of the sale, or shortly thereafter, he was indebted in a total sum of $70,000, and that his total assets amounted to only $22,000. The sale in question was not made in the ordinary course of trade nor in the usual prosecution of Sam Cherry’s business; it constituted the transfer of the entire business conducted by him at a particular place, which business was distinct from the business conducted at the two stores referred to above. ’ ’

The undisputed evidence in the record clearly discloses that, under the Bulk Sales Law, Cahill’s St. ch. 121a, ft 1 et seq., the store at Bonfield was a separate business from that operated by Frieling at Frieling Station. The court therefore did not err in directing a verdict for appellee.

It is next contended by appellants that the court erred in rendering a personal judgment against them.

Appellant Joseph Smith testified: “When we bought the personal property (the stock of goods at Bonfield) we lumped it at $1,000, which we figured was the fair cash market value. * * * We paid Frieling for it, paid him the money in his office down there at Frieling.”

On this admitted state of facts, the court did riot err in rendering a personal judgment against appellants. Monski for use of Richard Pick Mfg. Co. v. Smith, 224 Ill. App. 206; Ogden Avenue State Bank v. Cherry, supra, 207; Larsen v. Ritter, 227 Ill. App. 300; Browning for use of Valier State Bank v. Spurrier, 245 Ill. App. 276-281.

Lastly, it is insisted that, in any event, the court should have submitted the question to the jury as to whether the Bonfield store was a separate entity. As hereinabove set forth there was no real conflict in the evidence with reference to how the Bonfield store was being operated. That being true, it was a question of law, as to whether its sale in its entirety was in violation of the Bulk Sales Statute, Cahill’s St. ch. 121a, ft 1 et seq. It therefore follows that the court did not err in directing a verdict. Marshall v. John Grosse Clothing Co., 184 Ill. 421-425.

, For the reasons above set forth, the judgment of the ' trial court will be affirmed.

Judgment affirmed.


text:
    Victor B. Engstrom, Appellant, v. Emma Olson, Appellee.
    Gen. No. 7,897.

      Opinion filed April 18, 1928.
    Early & Early, for appellant; Frank P. North, of counsel.
    Large & Reno, for appellee; Wilbur E. Johnson, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellant sued appellee and Willard Carlson, her son, before a justice of the peace of Winnebago county, to recover damages to his automobile, resulting from a collision between it and an automobile owned by appellee and being operated by her said son. An appeal was taken from the judgment of the justice court to th§ circuit court.

On the trial in the circuit court, the defendant Willard Carlson testified that the car driven by him was owned by appellee, his mother. Over objection, he also testified that the damages sustained by the car driven by him had been repaired at a cost of $180, which he paid. At the close of the evidence, on motion of appellant, the suit was dismissed as to Willard Carlson. A verdict was returned finding appellee not guilty, and judgment was rendered thereon. To reverse said judgment, this appeal is prosecuted.

The principal ground relied on for a reversal is that the trial court erred in allowing appellee to introduce evidence of the damages to her car, and in submitting a form of verdict permitting a recovery in her favor.

Paragraph 54 of the Justices and Constables Statute, Cahill’s St. ch. 79, 54, provides:

“In all actions which shall be commenced before a justice of the peace, each party shall bring forward all his demands against the other existing at the time of the commencement of the action, which are of such a nature as to be consolidated, and which do not exceed two hundred dollars when consolidated into one action or defense, and on’ refusing or neglecting to do so shall forever be debarred from suing therefor.”

The question before us is whether, in an action before a justice of the peace for damages to property, resulting from a collision, the defendant may set off damages claimed to have been sustained by him in the same collision.

“A set-off or counter-claim, at least in the sense in which those words are understood in this State, can be pleaded only where there is an indebtedness from the plaintiff to the defendant which might be made the subject of an independent suit, and filing a pléa of set-off is tantamount to the institution of a cross-action by the defendant against the plaintiff in the same proceeding.” Litch v. Clinch, 136 Ill. 410-424; Albrecht v. Dillon, 224 Ill. App. 421-423.

“The words ‘claim or demand,’ as used in the seventeenth section of the practice act, embrace all cases arising out of contracts or agreements, express or implied.” Nichols v. Ruckells, 3 Scam. (Ill.) 298-300.

“Cases of unliquidated damages, which are sought to bo recovered in. actions arising from causes purely ex delicto * * # were not intended to be embraced within the terms ‘claim or demand,’ and which are to be confined to such as arise from ‘contracts or agreements, express or implied,’ as specified in the section allowing set-offs; and beyond which, being the boundary, we are not to pass.” Edwards v. Todd, 1 Scam, (Ill.) 462-466.

“Unliquidated damages arising out of covenants, contracts, or torts totally disconnected with the subject matter of the plaintiff’s claim, are not such ‘claims or demands’ as constitute the subject matter of set-off under our Act of Assembly. To give this construction to the statute would invest justices of the peace with full jurisdiction over questions involving the title to and covenants concerning real estate, compel parties to litigate all their rights, of whatever nature of Idnd, in one action, and result in irremediable injustice and endless confusion.” Hawks v. Lands, 3 Grilm. (Ill.) 227-232.

In Bush v. Kindred, 20 Ill. 93, the court at page 94, in discussing this question, says:

“It was urged that this cause of action was barred by the plaintiff’s having failed to set off the damages claimed in the suit between the same parties before the justice of the peace. The claim is for unliquidated damages growing out of a breach of contract between the parties; that suit was, upon claims, apparently totally disconnected with this contract, and if the damages claimed in this action were proper as a set-off before the justice, there can be no case in which unliquidated damages, growing out of a breach of covenant, contract, or tort, could not be set off. * * * It is manifest that the legislature never intended to confer such jurisdiction upon justices of the peace.”

In Robison v. Hibbs, 48 Ill. 408, the plaintiff brought suit before a justice of the peace for the balance of an account due to him. The defendant there attempted to set off an amount claimed by him as damages result

Sinamaker v. Rose, 62 Ill. App. 118, was an action in replevin and trover, begun before a justice. The defendant attempted to set off an amount owing to him for storage on the property involved and the court at page 120 says: “It is true that a set-off can not be allowed in an action of tort.”

In Turgrinson v. Meyer, 155 Ill. App. 553, suit was brought before a justice of the peace for the balance due on four notes secured by chattel mortgage given by the defendant. • On the trial, the defendant attempted to set off damages claimed under section 2, chapter 95 of the statute, Cahill’s St. ch. 95, jf 28, which provided that, where property was sold under a chattel mortgage, the mortgagee must give notice of the sale, etc., and on his failure so to do, “the owner of said property may sue for and recover one-third of the value of the property so sold from the mortgagee or the person making said sale as assignee of said mortgagee. ’ ’ The court at page 554 says: ‘ ‘ This injected into the case a claim for unliquidated damages. This was in no way so connected with the claim in suit as to make it a proper subject of a. cross-action or set-off.”

To the same general, effect is the decision of this court in Hartshorn v. Kinsman, 16 Ill. App. 555-558, and of the Appellate Court for the third district in Caldwell v. Evans, 39 Ill. App. 613-615.

From the review of the foregoing authorities, it follows: (1) That a set-off can only be allowed where the original cause of action is based on a contract, express or implied, and the set-off sought to be made must be on a contract, express or implied; (2) that in a suit based on a contract, express or implied, damages, either liquidated or unliquidated, growing out of the same transaction, may be recouped; and (3) in a tort action, there can be neither a set-off nor a recoupment.

Counsel for appellee, in support of the ruling of the trial court, cite and rely on Lathrop v. Hayes, 57 Ill. 279; Howell v. Goodrich, 69 Ill. 556; Heenan Mercantile Co. v. Welter, 144 Ill. App. 279; McWilliams v. Lavell, 175 Ill. App. 165; Pitts v. Ross, 238 Ill. App. 516.

Lathrop v. Hayes was a case involving an action by the plaintiff on a verbal contract with the defendant, and a counteraction by the defendant on an account owing by the plaintiff. What is there said can have no application to an action of the character here involved.

Howell v. Goodrich was an action by a physician to recover for services performed for the defendant, and the question involved was whether the defendant could set off a claim for malpractice. The court at page 558 says:

“Under the evidence, it is unnecessary to consider the point, whether the question of malpractice was necessarily in issue before the justice, so that the recovery there would be a bar, even if the defense of malpractice had not been set up, * * * or whether * * * the defendant in such case ought to have an election whether he will recoup his damages arising from the breach of the contract committed by the plaintiff, or bring a cross action. * * * There can be no doubt that the latter (the defendant) was entitled, if he so sought, to recoup in that suit whatever damages he might have sustained from unskilful treatment to the extent of the claim sued for, in order to lessen or defeat a recovery.”

The language there used does not support appellee’s contention, as the court holds that the set-off, if claimed, would be founded on the- plaintiff’s alleged breach of the contract sued on, and that this could only be shown in recoupment, “to lessen or defeat a recovery.”

Heenan Mercantile Co. v. Welter was an action on account, with a counterclaim for wages due, and has no application here.

Pitts v. Ross was an action to recover for osteopathic services. The court cites and follows Howell v. Goodrich, supra, and holds that the defendants were entitled to recoup their damages “as a result of the alleged delinquencies in rendering services of this character. The counter-claim of recoupment grows out of the same subject matter which is made the legal basis of appellee’s claim.”

Appellant’s contention that a claim for unliquidated damages cannot be set off in a tort action is supported by the weight of authority, and by sound reasoning. They are not “such claims as may be consolidated in one action or defense.”

If both parties in an automobile collision are guilty of negligence which contributed to the same, there can be no recovery by either party. Before either party to a collision can recover against the other, that party must affirmatively prove negligence on the part of the other which proximately contributed to the collision, and due care on his own part just prior to and at the time of the collision. The character of proof necessary to sustain an action in an automobile collision can only be made by one party. There can therefore be no set-off or recoupment of damages by the other.

Appellee did not testify. Her son testified that the damages to appellee’s car were repaired, and the repairs were paid for by him. He was thereafter dismissed from the case. The dismissal of said cause as to the defendant Willard Carlson disposed of any claim of set-off, if one were permissible. If a motion had been made thereafter to exclude from the consideration of the jury any evidence of a set-off, the court should have allowed such motion.

As there was no evidence tending to establish any claim of set-off as to appellee, the remaining defendant, the court erred in submitting to the jury a form of verdict permitting a recovery by her.

Counsel for appellant also contend that the court erred: (1) In admitting evidence of a set-off without previous written notice thereof; (2) conceding that the set-off was permissible, no competent proof was made as to the damages sustained by appellee. In view of what we have already said, it will not be necessary for us to discuss these propositions.

Counsel for appellant also contend that the court erred in refusing appellant’s sixth instruction. This instruction, while in the main stating a correct principle of law, is so loosely and inartificially drawn that the court did not err in refusing the same.

It is also contended that the court erred in giving the third instruction given on behalf of appellee, as follows:

“The jury are instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless, the jury have the right, in weighing his evidence, to determine how much credence is to be given it, and to take into consideration that he is the plaintiff and interested in the result of the suit, together with all the facts and circumstances proven in the case.”

Counsel for appellee, in support of this instruction, insist that the refusal of a like instruction was held reversible error in West Chicago St. R. Co. v. Dougherty, 170 Ill. 379, and in Chicago & E. I. R. Co. v. Burridge, 211 Ill. 9. In both of these cases, a corporation was the defendant. Here, however, both of the defendants were natural persons, and one of them testified on the trial. The court therefore erred in singling out the plaintiff and directing the attention of the jury to his interest in the result of the suit. Chicago & E. I. R. Co. v. Burridge, supra, 13; Hartshorn v. Hartshorn, 179 Ill. App. 421; Purgett v. Weinrank, 219 Ill. App. 28-32; Fairfowl v. Price, 221 Ill. App. 447-454.

It might also be observed that the second and ninth instructions given on behalf of appellee sufficiently advised the jury with reference to taking into consideration the interest of the witnesses testifying, and there was no occasion for further instructions on that feature of the case. Nau v. Standard Oil Co., 154 Ill. App. 421-427.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Beversed and remanded.


author: Mr. Presiding Justice Jett

text:
    Elizabeth Schilling, Appellant, v. Agnes Holding, Appellee.
    Gen. No. 7,835.

      Opinion filed April 23, 1928.
    Clarence W. Heyl and Harry C. Heyl, for appellant; Heyl & Heyl, of counsel.
    Henry Kneller and George W. Hunt, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was instituted by Elizabeth Schilling, appellant, in the circuit court of Peoria county against Agnes Holding, appellee, to recover in an action on the case for damages arising out of certain injuries alleged to have been caused to the appellant by the negligent driving of the car of appellee while appellant was riding therein.

A declaration was filed consisting of three counts to which a demurrer was interposed and sustained. Subsequently an amended declaration consisting of three counts was filed to which a plea of the general issue and two special pleas were filed, the special pleas setting up the statute of limitations. Issue was joined on the plea of the general issue and a demurrer interposed to the special pleas. The court overruled the demurrer and the appellant having elected to stand by her said demurrer to the special pleas the court dismissed her suit and entered judgment against her in bar of the action and for costs and this appeal fol lowed.

For the purposes of this opinion the appellant will be called, “plaintiff” and appellee, “defendant.”

The declaration avers that the plaintiff was a guest of the defendant in the latter’s automobile and that they were riding along and upon a certain highway in the county of Tazewell in the State of Illinois on a certain road known as the Springfield Hard Eoad at or near what is known as the Ingersoll Bridge in said county and that while so riding another automobile in passing them struck and damaged the car and steering gear so that it could not be well controlled; that such condition was known to the defendant but that she negligently continued to operate her automobile and as a result thereof it ran into the abutment at a place known as Ingersoll Bridge and the plaintiff was thrown against the cowl and windshield of said automobile causing the injuries of which the plaintiff complains.

The original and amended declaration charged the injury complained of to have been occasioned on September 10, 1923. No averment is found therein of due care on the part of the plaintiff.

The amended declaration filed March 23, 1927, contained an averment of the exercise of due care on the part of the plaintiff.

The only question involved in this proceeding is whether the plea of the statute of limitations sets up a good defense to the amended declaration.

It is the position of appellant that the original declaration stated a good cause of action, and that there were sufficient allegations in the original declaration to show due care by inference, and while the original declaration may have been a defective statement of a good cause of action, the amendment thereto by adding an allegation of due care on the part of the plaintiff •was not the statement of a new cause of action.

The question presented in this case was decided by this court in Ross v. Chicago & A. R. Co., 225 Ill. App. 633, where the holding was adverse to the contention of the plaintiff. We there held that an amendment properly alleging due care filed after the statute has1 run is not effective to save the declaration against a plea of bar of limitations. It is argued by the plaintiff that regardless of the amendment there was sufficient averred in the original declaration from which an inference of due care on the part of the plaintiff would arise. We do not agree with this contention for the reason that the declaration shows upon its face that the condition of the damaged steering gear was known to the defendant and there is no averment of want of knowledge of the defects on the part of the plaintiff. It was necessary for the plaintiff to exercise due care for her own safety and her failure to charge that she did something which would excuse her from proceeding with the car after the collision and up to the time of the accident imputes a want of care on her part rather than inference of due care.

The question here involved was definitely determined in Walters v. City of Ottawa, 240 Ill. 259, where the court said:

“A declaration in an action to recover for injuries received through negligence which does not aver due care on the part of the plaintiff when he was injured, and does not contain any averment in regard to his conduct or the circumstances surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action, and, after the period of limitation fixed by the statute has elapsed, cannot be amended to state a cause of action not subject to the bar of the statute. If a declaration omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.”

We conclude, therefore, that the judgment of the circuit court of Peoria county should be affirmed.

Judgment affirmed.


text:
    Arthur Mantske, Appellant, v. Martha Rhutassel, Appellee.
    Gen. No. 7,851.
    Opinion filed April 23, 1928.
    Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel.
    Alsohuler, Putnam, Flannigen & Johnson, for appellee ; Arthur L. Puklin, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This appeal is prosecuted by Arthur Mantske, appellant, to reverse a judgment of the county court of Kane county denying the prayer of the petitioner, appellant, to be discharged from custody of the sheriff of Kane county, apprehended on a writ of capias ad satisfaciendum under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, Tf 4 et seq., on the ground that malice was not the gist of the action upon which the capias was issued. The errors assigned for reversal are based entirely upon the record consisting of the declaration, general verdict, special findings of the jury and judgment of the circuit court of Kane county in which court judgment upon which the capias was issued was rendered.

The declaration in this proceeding on which judgment was rendered against appellant consists of five counts, four of which charge general negligence and the fifth wilful and wanton misconduct. The fifth count alleges “that it was the duty of said defendant then and there to so operate, manage and control, drive or cause to be driven said motor vehicle or automobile along said highway, so as not to willingly and wantonly run into, upon, over and against the plaintiff, but the defendant, notwithstanding his duty in that behalf, so willingly and wantonly managed, operated, controlled, drove or caused to be driven the said motor vehicle or automobile; that by and through and by reason thereof of said wilful and wanton management, operation, control, driving and causing to be driven of said motor vehicle or automobile by the defendant in that behalf, the said motor vehicle or automobile ran into, against and struck the plaintiff” while the plaintiff was in the exercise of due care and caution for her own safety.

The jury found a general verdict against the defendant and a special verdict in response to an interrogatory submitted to it that the appellant was guilty of wilfulness and wantonness in the operation of his automobile. A verdict for $1,525 was returned against him, and judgment was rendered on the verdict.

The only question to be decided upon this appeal is whether malice was the gist of the action in the circuit court in the sense that the word “malice” is used in section 2 of the Insolvent Debtors’ Act. Section 2 of said act, Cahill’s St. ch. 72, if5, provides as follows:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this Act.”

On the hearing on the petition it was incumbent upon the judgment debtor, the petitioner, to show that malice was not the gist of the action.

Where a petitioner under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, If 4 et seq., having been taken into custody upon a writ of capias ad satisfaciendum based upon a judgment against him in an action for tort, fails to show that malice was not the gist of the tort action he is not entitled to the release prayed for. Fetz v. People, 239 Ill. App. 250.

In a recent holding in this court in Fromm v. Seyller, 245 Ill. App. 392, the special verdict of the jury, finding that the • appellant was guilty of wilfulness and wantonness in the operation of his automobile, is equivalent to a finding that malice is the gist of the wrong charged.

It therefore follows in view of the rule announced in Fromm v. Seyller, supra, that the judgment in this cause should be affirmed which is accordingly done. Judgment of the county court of Kane county is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Barry

text:
    Frank Z. Carstens, Appellant, v. City of Wood River et al., Appellees.
    Opinion filed April 7, 1928.
    Springer & Buckley, for appellant.
    Warnock, Williamson & Burroughs, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant filed a bill in which he averred that he is the owner of a certain tract of land in Wood River which is directly across the street from a park in the City of Wood River; that the park property was conveyed to the city by a deed which contained the following provision: “Said tract of land is conveyed to and -accepted by the Village of Wood River for Park purposes, the same to be maintained as a Park for the said village, to be governed and controlled by the ordinances of said village for said purpose.”

The bill avers that by reason of the said conveyance aforesaid, appellant, as owner of his property abutting on the park as aforesaid, has an easement in said park property, giving him the right to have said property used for park purposes under the terms of said deed; that he is a citizen and taxpayer in the said City of Wood River and as such has the right to have said property used in accordance with the terms of said deed; that appellees have constructed, or permitted to be constructed on the said park property, a swimming pool, a bathhouse and a pavilion; that the swimming pool is immediately across the street from appellant’s property and that by reason of its proximity thereto appellant’s property is greatly depreciated in value; that it was primarily suited for residence purposes, but that it has been rendered unsuitable for such purposes owing to the noise which lasts late into the night and to the continuous sight of persons in bathing suits at said pool and on the walks adjoining the same.

The bill avers that the city leased certain refreshment concessions on the park property to one Carl Hale; that the city makes a charge to those persons who desire to patronize the swimming pool and bathhouses and that the city has caused a fence about 7 feet high to be erected around the swimming pool; that appellees were without authority of law in permitting the erection of said structures on said park property and that it was their duty, under the law,, to prevent the erection of the same; that the city has no lawful authority to permit a charge to be made for the use of the park or any part thereof by the public.

The bill prays that appellees may be perpetually enjoined from violating the terms of the dedication of the park property; that they be enjoined from maintaining the swimming pool, bathhouse, pavilion and fence; that they be enjoined from permitting the same to remain on said park property; that they be enjoined from leasing any portion of said park property, or leasing concessions thereon; that they be enjoined from charging for the use of the swimming pool, bathhouse and pavilion or any part thereof, and that the city and the members of the city council may be ordered to restore said park property to the condition it was in before said structures were erected thereon.

Appellees filed a general and special demurrer to the bill of complaint, one of the special grounds being that the averments that appellant had an easement in the park property is a mere conclusion not based on any alleged facts. The demurrer was sustained and appellant electing to abide by his bill the court dismissed the same for want of equity at his costs.

It will be observed that appellant averred in his bill that his lot abuts upon the park property and that by reason thereof he has an easement in the park property which entitles him to have it preserved as a park. The averments of the bill are sufficient to show that he may have an easement and the right to have the property preserved as a park. Village of Riverside v. MacLain, 210 Ill. 308. A freehold is involved where the right of recovery in a suit depends upon the existence of a perpetual easement in land and the rights thereby acquired. Bucklen v. City of Chicago, 166 Ill. 451. A suit, the issues of which necessarily require the determination of the existence or nonexistence of a perpetual easement in land, involves a freehold. Wessels v. Colebank, 174 Ill. 618. A freehold is involved where the title thereto is so put in issue by the pleadings that the decision of the case necessarily involves a determination of that issue. Duncanson v. Lill, 322 Ill. 528. If the judgment of the trial court remains in full force and effect appellant is denied the right of a perpetual easement in the park property to have it preserved as a park.

We are of the opinion that a freehold is necessarily involved and that being true this court is without jurisdiction. It is therefore ordered that this cause be and the same is hereby transferred to the Supreme Court. The clerk of this court will transmit the transcript of the record and all files herein, with the order of transfer, together with a copy of this opinion, to the clerk of the Supreme Court.

Cause transferred to the Supreme Court.


author: Mr. Presiding Justice Taylor

text:
    Illinois Merchants Trust Company et al., Appellants, v. Bertha F. B. Harvey, Appellee.
    Gen. No. 32,171.
    Opinion filed May 2, 1928.

      Wilson, McIlvaine, Hale & Templeton, for appellants.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On July 30, 1925, the Illinois Merchants Trust Company, Chauncey Keep, and Marshall Field, as trustees of the residuary estate of Marshall Field, deceased, brought suit in trespass on the case on promises, as plaintiffs, in the superior court, against Bertha F. B. Harvey, as defendant, for $15,000.

On February 17, 1926, the plaintiffs filed a declaration containing two counts. The' first alleged, substantially, the following: That on June-22, 1904, the defendant, together with Myra C. Botsford, as lessors, made a written lease of certain Chicago real estate, to Marshall Field, as lessee; that subsequently the term of the lease had been extended to, and included, April 30, 1980; that on March 9, 1921, the plaintiffs, as trustees, had succeeded to the rights and liabilities of Marshall Field under the lease and had paid to the lessors the rent for the years 1916 to 1919, inclusive; that the defendant on March 9, 1921, demanded that the plaintiffs pay to her income taxes levied against and collected from the lessors by the United States upon the rents paid by the plaintiffs to the lessors for each of the years 1916 to 1919 inclusive; that the plaintiffs denied that they were liable to pay such taxes; that the 11th article of the lease provided that if a default on the part of the lessee should continue 60 days after written notice thereof, the leasehold estate should be forfeited, and that upon forfeiture the lessee should surrender the building on the lands, which the lease demised, without any compensation being made or paid therefor by the lessors; that on March 9,1921, the defendant delivered to the plaintiffs a notice of default; that the notice stated that the plaintiffs were in default under the lease in that they had not paid the income taxes levied by the United States upon the rents paid by the lessee to them, the lessors, for each of the years from 1916 to 1919, inclusive, and that unless the default was made good within ■60 days they would exercise their election to declare the term of the lease ended and avail themselves of the rights reserved in the lease upon it being terminated.

It was further alleged in the first count that at the time of the serving of the . notice there was standing on the demised premises a building erected at a cost in excess of $1,000,000, which was under lease by the trustees to Marshall Field & Company for a term commencing November 1, 1917, and ending April 30, 1937; that Marshall Field & Company was occupying the building and conducting therein a- retail dry goods business; that at the time of the lease of the building to Marshall Field & Company by the trustees, it was covenanted that the lessee should have quiet and peaceable possession of the building during the term of the lease; that in March, April and May, 1921, the leasehold estate demised by the lease from the defendants, Bertha F. B. Harvey, and Myra C. Botsford, to Marshall Field & Company, had a cash market value in excess of $2,000,000;

That the forfeiture of the lease from the defendant and Botsford would have caused a loss to the trustees of the leasehold estate and would have subjected them and the building to large claims for damages by Marshall Field & Company; that the building in March, April and May, 1921, was a part of a building fronting on Wabash avenue, in Chicago, and extending from the south line of Randolph street to the north line of Washington street, and was occupied, as stated above, by Marshall Field & Company;

That on March 6, 1921, a few days before the date fixed by the notice for the forfeiture of the lease, the defendant Harvey demanded that the trustees should pay to her, for the income taxes, as specified in the notice, and for interest thereon, and for the expenses of the defendant incurred in connection with enforcing payment of the taxes by the trustees, the sum of $8,350.97.

It was further alleged by the trustees that neither that amount, nor any amount, was due from them to the defendant; “that said trustees being then threatened by said defendant with the forfeiture of said lease and with the loss of the said leasehold estate and with the building located on said lands and being under compulsion and duress by the defendant * * * paid to the said defendant on the 6th day of May, 1921, the said sum demanded by her, to wit, the sum of $8,350.97, to prevent the forfeiture of said lease, threatened by said defendant as aforesaid, and to save said trustees from the loss and damage which would have resulted from the forfeiture of said lease; that said payment was made by said trustees to said defendant under protest to "said defendant, that no part of the sum so paid to the defendant was due or owing to her from said trustees * * *.

‘ ‘ That- said defendant having secured said sum from said trustees by threats, compulsion and duress, as aforesaid, then and there, to wit, on May 6, A. D. 1921, at to wit, Cook County, aforesaid, became and was obligated to pay said sum of $8,350.97, together with interest thereon, at the rate of five per cent per annum from said May 6, 1921, to said trustees, and then and there became indebted to said trustees in said amount”;

That after- May 6, 1921, and prior to July 30, 1925, the Merchants Loan and Trust Company consolidated with the Illinois Trust & Savings Bank to form the Illinois Merchants Trust Company, one of the plaintiffs; that the Illinois Merchants Trust Company succeeded to all the rights, claims and demands, of the Merchants Loan & Trust Company against the defendant.

The second count of the declaration consists of the consolidated common counts.

The affidavit of amount due is for the sum of $10,347.09.

On May 2,1926, the defendant filed four pleas. The first was the general issue; the second denied that the payment was made under protest, or on account of threats, compulsion or duress, and alleged that the facts upon which the claim was settled were fully known to the plaintiffs, and that the payment was made in satisfaction of the claim; the third alleged that, at the time of the payment, the plaintiffs were indebted to the defendant in the full amount of what was paid, and that the payment operated as in full accord and, satisfaction of all matters and disputes between them, and the fourth set up the statute of limitations.

On August 5, 1926, replications were filed by the plaintiffs.

On March 28, 1927, the death of Arthur B. Jones was suggested, and the cause ordered to proceed at the suit of the Illinois Merchants Trust Company, Chauncey Keep, and Marshall Field, as trustees of the residuary estate under the will of Marshall Field, deceased.

There was a trial before the court, with a. jury, at which the testimony of three witnesses, Loehr for the plaintiff, and Harvey and Fischer for the defendant, was taken, and certain exhibits were introduced in evidence.

The evidence is substantially as follows: On June 22, 1904, the defendant Bertha F. B. Harvey, together with Myra C. Botsford, as lessors, leased, in writing, to Marshall Field, as lessee, Lot 4 in Block 13 in Fort Dearborn Addition to Chicago, for a period beginning July 1, 1904, and ending April 30, 1930, at a rental of $9,000 per annum, for the first 2 years and 10 months and at a rental of $13,000 per annum for the remaining 23 years.

Upon the death of Marshall Field in the year 1906, his interest in the lease passed into the control of the plaintiffs, trustees under his will, and has been under their control from that time on.

That portion of the lease which pertains to the matter of taxes is contained in the third article, and is as follows:

“Third. Said lessee further agrees to pay all taxes, water rates, special assessments and all other similar impositions of any and every kind which may be levied, assessed or imposed upon said premises, or any part thereof, or upon any building or improvement situated thereon, for or during the continuance of this lease, including five-sixths of the taxes levied thereon for the year 1904, (the said lessors agreeing to pay one-sixth of the taxes for 1904), which said taxes, assessments, water rates and other similar impositions shall be paid in the name of the said lessors before sale and before application for the judgment for collecting the same is made, and the receipts for such payments shall, within thirty (30) days after the respective payments evidenced thereby are made, be delivered to said lessors at the same place where said rent is payable.”

It is provided in Article Fourth that the lessee, at his own expense, will construct, within five years from the date of the lease, a fireproof building, not less than eight stories in height, covering substantially the whole of the demised premises. In accordance therewith, the lessee, in August, 1906, completed such a building at a cost of approximately $680,000, and it has remained upon the premises in question ever since that time.

On May 20, 1916, pursuant to Article Ninth of the lease, the lessee extended the term of the lease for an additional period of 50 years, from and after April 30, 1930, at the same rental as specified in the lease for the last 23 years of the original term.

It is provided by Article Tenth of the lease that upon it's termination by lapse of time or forfeiture, the lessee will surrender the demised premises with the buildings thereon to the lessors, without any compensation being made or paid for the buildings or improvements then upon the demised premises, except as provided thereafter in the lease.

Article Seventeenth provides — in the event of the termination of the term of the lease by lapse of time— for the payment of one-half of the appraised value of such parts of the party walls constructed by the lessee as the lessors may desire to use.

The lease contains no provision for payment in the event of the termination of the term by default.

Article Eleventh of the lease is as follows:

‘ ‘Eleventh. It is expressly understood and agreed, by and between the parties hereto, that if the rent above reserved or any part thereof shall be behind or unpaid on the day of payment whereon the same ought to be paid as aforesaid, or default shall be made in any of the covenants or agreements herein contained to be kept by the said lessee or his assigns, and such default shall continue for sixty (60) days after written notice thereof to the said lessee, it shall and may be lawful for the said lessors at their election, to declare said term ended, and into the said premises or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any person or persons occupying, in or upon the same, to expel, remove and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy as in their first and former estate.”

On March 9,1921, the lessors sent to the trustees of the estate of Marshall Field three written notices, each of which contained the following: “You are hereby notified that you are in default in the performance of the covenants of the lessee in that certain lease * * * bearing date the 22nd day of June, A. D. 1904.” One of the notices specified as a default the failure of the lessee to pay the tax levied by the United States of America upon the rents paid by the lessee to the lessors under the terms of the lease for the years 1916 to 1919, both inclusive, another of the notices specified as a default the failure of the lessee to deliver to the lessors receipts for the tax contracted to be paid by the lessee within 30 days after the respective payments thereof, and another specified as a default the failure of the lessee to procure policies of insurance, as specified in the lease. The first of the above-mentioned notices contains the following:

“Your attention has been heretofore called to your failure to pay the tax levied by the United States of America upon the rents paid by the Lessee to the Lessors under the terms of this lease. You are in default in this respect as to the rental for each of the years 1916, 1917, 1918 and 1919, and you are notified hereby that, unless you make good your default in the performance of the covenants and agreements in said lease contained on the part of the Lessee to be performed as to the rentals herein mentioned within sixty days after this notice has been given to you, the Lessors will exercise their election to declare the term of said lease ended and avail themselves of the rights reserved in said lease upon the termination thereof.”

Shortly after the receipt of the above-mentioned notices, the trustees held a conference with Mr. John P. Wilson, Sr., chief counsel of the Field Estate. (Mr. Wilson died prior to the trial.) A computation of the total normal and surtax on the amount of the rent for the years 1916, 1917, 1918 and 1919, plus interest at 5 per cent per annum, to May 10, 1921, showed it to be $4,166.71. After the receipt of the notices above mentioned, the trustees made a search of their files and records for the missing tax receipts, and assembled them, and also had the insurance rewritten under a separate policy on the building on the defendant’s property, instead of having it, as it was formerly, blanket insurance.

About the first of May, 1921, Mr. John P. Wilson saw Mr. Harvey, who was the husband of the defendant, and authorized to act for her in the matter, and told him that he, Wilson, had received the notices and requested that he be furnished a bill for the items of the income tax. Mr. Harvey had an accounting firm make up á bill, which he then sent to Mr. Wilson in a letter dated May 6,1921. The bill was for the income taxes paid by the lessors on the income or rent from the demised premises for the years 1916-1920, with interest, attorneys’ and accountant’s fees, as follows: Income tax, $6,324.34; interest to date, $576.63; attorneys’ fees, $1,350; and accountant’s fees, $100; total, $8,350.97.

The evidence of the witness Loehr, an officer of the Merchants Loan & Trust Company in 1921 (which was then one of the trustees of the Field Estate), was to the following effect: On May 6, 1921, he and Mr. John P. Wilson went to the office of Robert H. Harvey. He went to act as a witness to what might transpire. Mr. Wilson greeted Mr. Harvey, and told him that they (Wilson and Loehr) had come there in response to certain notices about defaults, or alleged defaults, in the performance of the covenants of the BotsfordHarvey lease. Mr. Wilson gave Mr. Harvey some of the missing tax receipts and the fire insurance policy, and also a check for $8,350.97. In giving the check, Mr. Wilson, said that “he was making payment of this claim for income taxes without in any way admitting the propriety of the demand and that he did not think that the Field trustees owed any money on account of Mrs. Harvey’s and Mrs. Botsford’s federal income tax.” Mr. Wilson said that “we didn’t even compute or attempt to compute the amount of the tax but we paid the amount in accordance with Mr. Harvey’s demand, and under the compulsion of the notice, which he had served, and paid it because the Field trustees could not afford to litigate the question of the propriety or the impropriety of the payment in any suit involving a possible forfeiture of the lease, and therefore he simply paid the rent (meaning income tax) in accordance with the figures that Mr. Harvey had submitted and to satisfy his demand without admitting the justice of the demand.”

The evidence of Robert H. Harvey, who acted for the defendant, his wife, was to the following effect: The first time he had any communication with the Field Estate, or any of its representatives, in reference to the subject matter of the three notices, was in the first part of May, 1921. He met Mr. Wilson at the University Club and was asked if he would meet him at his (Harvey’s) office. He agreed to see him, and a few days later, Mr. Wilson called, alone. Mr. Wilson told him that he had received the notice and would like to have him make up a bill for the items. Following that, he had a bill made up and sent to Mr. Wilson. A few days later, about May 6, Mr. Wilson called again, and with him came Mr. Loehr. Mr. Wilson said he had brought a check for the bill and the tax receipts. Mr. Harvey then called in his credit man, Fischer, who checked the tax bills with Loehr. The witness Harvey, in his direct examination, concerning what Mr. Wilson said when he gave the check, states that Mr. Wilson did not say anything about the estate paying the money under protest, but later, on cross-examination, when asked whether Mr. Wilson ever told him, prior to May 6, that the Field trustees, ip his opinion, were not liable to pay this tax and that that was his position, or used words to that effect, he (Harvey) answered, “I think he did,” and when further pressed on the same matter as to the date of the conversation, he answered, “I cannot state whether it was prior or at what time. It may have been the day he came in with the check.” Harvey, when asked what he said in reply when Mr. Wilson told him on May 6, or prior thereto, that the trustees of the Field Estate did not regard themselves as liable to pay for the tax, answered, “I told Mr. Wilson if he did not wish to pay it, we would endeavor to collect it.”

The evidence of Fischer, employed by Harvey’s Company, and called on behalf of the defendant, is to the following effect: That he served the above-mentioned notices; that he saw Mr. Wilson come into Dr. Harvey’s office on one occasion, alone; that on May 6, Mr. Wilson came in with Loehr; that he, Fischer, went into Harvey’s office to take up the tax receipts and did so with Loehr; that he heard Mr. Wilson say that he had come in to tender the check, but did not hear him state that the trustees were liable, although it .might have been said before he (Fischer) went into the office.

At the close of all the evidence, upon a motion by counsel for the defendant, the court instructed the jury to find the issues for the defendant. In accordance with that instruction, a verdict was rendered and, after overruling motions by counsel for the plaintiffs, for a new trial, and in arrest of judgment, the trial judge entered judgment in favor of the defendant and against the plaintiffs. This appeal is from that judgment.

On May 6, 1921, when Mr. Wilson, on behalf of the trustees, the lessee, gave to Mr. Harvey, the representative of the defendant, a check for $8,350.97, there was no case in the State of Illinois which definitely decided whether or not the provisions in a lease, similar to those contained in the one in question, bound the lessee to pay the income taxes of the lessors levied upon the rents paid under such a lease. On April 23, 1914, the Supreme Court of this State, in the case of Northern Trust Co. v. Buck & Rayner, 263 Ill. 222, decided that such a lessee was not bound to pay an inheritance tax assessed against the lessor’s interest in a lease at the lessor’s death. But it was not until October, 1923, that it was decided by the Supreme Court, in Young v. Illinois Athletic Club, 310 Ill. 75, that provisions in a lease, similar to those of the one in the instant case, did not require the lessee to pay income taxes assessed against the rents paid under the lease. In that case the court said:

“Such tax is not a tax against the real estate, and under the holding in the Buck & Rayner case, supra, cannot, in the absence of terms which expressly or by clear implication include it, be made a part of a covenant in a lease. We are of the opinion that it was not the intention of the parties to this lease that the income tax levied on the rentals should be paid by the lessee.”

Such being the law, the question now arises, therefore, whether the plaintiffs having paid the $8,350.97 demanded by the lessors — it being conceded by counsel for the defendant that under the ruling in the Young case the plaintiffs were not required to pay income taxes assessed against the rents paid under the lease in question — are entitled to recover the money back, on the ground that the payment was made under duress or compulsion, or what would be considered equivalent thereto. There is duress of property as well as duress of person. The duress claimed here is of the former character.

Did the threat of forfeiture of the leasehold estate and buildings, on account of which the payment here sued for was made, constitute duress of property? The contention of the defendant is that it did not constitute duress because (1) the plaintiffs could have tried out in the threatened forcible detainer suit their liability to pay, and (2) even if defeated in a forcible detainer suit, the plaintiffs could have redeemed the property in equity, or could have enjoined the forfeiture. On the other hand, it is the contention of the plaintiffs that although it be admitted that a mere threat of an ordinary lawsuit does not constitute duress; that if the defendant had not sought a forfeiture of the lease, but had merely threatened to bring a suit at law to collect the taxes which were claimed as additional rent, then a payment made to avoid such a suit would not have been made under duress, yet, in a forcible detainer suit brought after the forfeiture, or to enforce the forfeiture, the plaintiffs would have had no adequate means of defense, and that, therefore, the conduct of the defendant constituted duress, and that, under the law, the plaintiffs in the instant case had no clearly established right, either to redeem from a forfeiture in equity, or to enjoin a forfeiture.

Counsel for the plaintiffs in their reply brief, in answer to the argument of counsel for the defendant, state the following: “As a test of duress (which is by no means always applied) it has sometimes 'been said that-the plaintiff pays under duress only when he has ‘no other remedy.’ But when this test is examined it-is found to be limited as follows: (1) the other remedy referred to relates to remedies at law, not to remedies in equity, and (2) the remedy must be clear and well established,” and they urge that the instant case is controlled by Chicago & E. I. R. Co. v. Miller, 309 Ill. 257, and the cases therein cited, and that whether the tests suggested by counsel for the defendant are applied or not, it clearly appears that the payment made was under duress. In the Miller case, the Illinois Commerce Commission threatened to withhold their approval of a bond issue unless a certain illegal fee was paid. The threatened loss to the railroad involved a large sum. The court held that the payment of the illegal fee demanded was made under duress, and sustained the right of the plaintiff to recover.

In a number of cases the Supreme Court has held that the circumstances did not amount to duress, and that the payments made could not be recovered. Such cases are Stover v. Mitchell, 45 Ill. 213; Swanston v. Ijams, 63 Ill. 165; Conkling v. City of Springfield, 132 Ill. 420; Walser v. Board of Education of School Dist. No. 1, 160 Ill. 272. In the last three cases it was held that the payment of an illegal tax on real estate was not a payment under duress, because the taxpayer could make his defense in the suit brought to sell the land for taxes. In those cases neither penalties nor forfeitures were involved. In the Conkling case, supra, the court said (p. 423):

“As a general rule, where a person is compelled, by duress, to pay an illegal tax for which he is not liable, he may recover it back. The rule on this subject is well stated by Shaw, C. J., in Preston v. Burton, 12 Pick. 13, as follows: ‘A party who has paid voluntarily, under a claim of right, shall not afterwards recover back the money, although he protested at the time against his liability. * * * But it is otherwise when a party is compelled, by duress of his person or goods, to pay money for which he is not liable. It is not voluntary, but compulsory, and he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back.’ ”

There are a great many cases in the books on the subject of duress, and they are not all in accord. In this State, however, the Supreme Court has found duress to exist in cases where payments have been exacted by public service corporations; where money has been exacted by one private individual from another, and in cases where there were payments of taxes or other charges by a person to county or State authorities. Bradford v. City of Chicago, 25 Ill. 411; Spaids v. Barrett, 57 Ill. 289; Chicago & A. R. Co. v. Chicago, V. & W. Coal Co., 79 Ill. 121; Pemberton v. Williams, 87 Ill. 15; City of Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40; Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535.

Pertinent cases in the United States Supreme Court are the following: Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, and Union Pac. R. Co. v. Public Service Commission of Missouri, 248 U. S. 67.

In the Miller case, already mentioned, the Supreme Court of this State said:

“It is reasonable that a man who denies the legality of a tax should have a clear and certain remedy. It is true that appellee chose to comply with the plain provisions of the Public Utilities act rather than suffer the losses certain to follow in an effort to market the stock and bonds without the approval of the Commerce Commission, but this does not make its act voluntary. Conduct under duress always involves a choice, but this court has held that the making of a choice under such circumstances does not estop the person acting under duress from later asserting his rights. (Spaids v. Barrett, 57 Ill. 289; Chicago and Alton Railroad Co. v. Chicago, Vermilion and Wilmington Coal Co., 79 id. 121; Pemberton v. Williams, 87 id. 15.) In Atchison, Topeka and Santa Fe Railroad Co. v. O’Connor, 223 U. S. 280, 32 Sup. Ct. 216, the company brought an action to recover a capital stock tax paid under protest. In disposing of the point the court said: ‘In this case the law, besides giving an action of debt to the State, provides that every corporation that fails to pay the tax shall forfeit its right to do business within the State until the tax is paid, and also shall pay a penalty of ten per cent for every six months, or fractional part of six months, of default after May 1 of each year. It may be that the forfeiture of the right to do business would not be authoritatively established except by a quo warranto provided for in a following section, but before or without the proceeding the effect of the forfeiture clause upon the plaintiff’s subsequent contracts and business might be serious, and in any event the penalty would go on accruing during all the time that might be spent before the validity of the defense could be adjudged. As appears from the decision below, plaintiff could have had no certainty of ultimate success, and we are of opinion that it was not called upon to take the risk of having its contracts disputed and its business injured, and of finding the tax more or less nearly doubled in case it finally had to pay. In other words, we are of the opinion that the payment was made under duress. ’ ”

In the Northwestern Mut. Life Ins. Co. case, supra, which was brought to recover water rates paid to the city by the plaintiff, for water delivered prior to the purchase of certain real estate, the court said:

“Appellant and appellee did not stand upon the same footing, as appellant had the power and means to deprive appellee of its water supply, and had threatened to exercise this power, and had in some instances actually shut off the water.”

In the Spaids case, supra, where the defendant levied an attachment on a shipment of oysters belonging to the plaintiff and refused to give them up except upon payment of more than was due from the plaintiff to him, it was held that the plaintiff could recover the sum so paid, because it was paid to obtain possession of property wrongfully held. The court said, after considering whether there was any difference between duress of the person and duress of property:

“We can not forget the fact that the desire for property is a strong and predominant characteristic of man, in organized society. An act done, prompted by this desire to preserve, and impelled by fear of the destruction of goods, is not voluntary. It is an act of compulsion.”

In the Illinois Glass Co. case, supra, although the issue did not directly involve the question whether money was paid under duress, but whether an overpayment to a public service corporation could be recovered, the court said:

“The ancient doctrine of duress of person, and later of goods, has been much relaxed and extended so as to admit of compulsion of business and circumstances, and perhaps a telephone corporation having a system in general operation and connected with customers and other business houses might reasonably influence a business house to make an unwilling payment of an amount illegally demanded, which would make the payment compulsory.”

On that subject, the court cites in its opinion the following cases: County of La Salle v. Simmons, 5 Gilm. (Ill.) 513; Bradford v. City of Chicago, 25 Ill. 411; Elston v. City of Chicago, 40 Ill. 514; Chicago & A. R. Co. v. Chicago, Vermilion and Wilmington Coal Co., 79 Ill. 121; Pemberton v. Williams, 87 Ill. 15.

An examination of the authorities of this State seems to show that ever since the decision in County of La Salle v. Simmons, 5 Gilm. (Ill.) 513, which is cited in the Illinois Glass Co. case, the conduct of the defendant, as shown by the evidence in this case, would have been considered as creating and constituting duress of property, and the payment made by the plaintiffs as made under compulsion.

The lessor gave a 60-day notice of default pursuant to the terms of the lease. The lease provided that the defendant should “pay all taxes, water rates, special assessments, and all other similar impositions of any and every kind which may be levied or imposed upon said premises, or any part thereof, ’ ’ and made a failure on the part of the tenant to make any such payments a ground of forfeiture, Further, in the event of forfeiture, the lease provided that the building should belong to the lessor without any compensation being made, and also required the lessee to build party walls for which (in the event of forfeiture) no compensation should be made.

That being the situation, the lessor demanded that income taxes, and certain expenses in connection therewith, should be paid by the lessee, claiming that they were taxes which the lessee was bound to pay. The lessor could have merely made a demand for the payment of the taxes, and, if not paid, instituted suit in order to obtain judgment. Such a demand and such a suit would not have been duress, as the parties would have been in an equal position before the law, there being no danger of forfeiture. As urged by counsel for the plaintiffs, in a suit of assumpsit thus brought, the lessor could have recovered only the sum demanded, and the question of whether or not the lessee were liable to pay the lessors’ income taxes could have been settled in a case where the parties stood on equal terms before the court. The evidence shows that the defendant gave a 60-day notice of default, pursuant to the terms of the lease, and informed the plaintiffs that unless the money demanded was paid in the 60 days, the defendant would declare the term ended, and avail herself of the rights reserved in the lease upon such termination, which rights included the right to end the term of the lease, so that the remaining part of it would be forfeited, the right to take over the entire building without compensation, and the right to require the lessee to erect party walls which also would be taken over and used by the lessor without compensation.

The plaintiffs having received the notice of default in payment of income taxes were given a choice of action. They could have allowed the 60 days to expire, and, if the lessor had proceeded with an action for possession, defended that action on the ground that they were not obliged to pay the taxes. Of course, if they had elected to take that course, they would have jeopardized their leasehold estate, plus the value of the buildings, in order to avoid the payment of $8,350.97. They chose to make the payment, and, in our judgment, applying the principles laid down by the Supreme Court, did so under duress.

Counsel for the defendant state in their brief that the plaintiffs did not pay under compulsion or duress, because they had adequate means of relief either by filing a bill in equity, or by defending an action of forcible entry and detainer brought by the defendant, the lessor, to oust them from possession if the lessor elected to terminate the lease because of the alleged default, or by prosecuting an action for forcible entry and detainer if the lessor took possession of the premises without process of law after electing to terminate the tenancy because of the alleged default, and that equity would relieve the lessee and set aside the forfeiture incurred because of his breach of the condition to pay a sum certain, whether the lessor has or has not entered and dispossessed the tenant.

The weight of authority, however, in this State seems to be that there is neither a right to redeem from such a forfeiture of a lease, nor a right to enjoin a threatened forfeiture. Chadwick v. Parker, 44 Ill. 326; Kew v. Trainor, 150 Ill. 150; Schimelfenig v. Howell, 172 Ill. App. 201; Palmer v. Ford, 70 Ill. 369. In the latter case, the bill was filed by a tenant asking for an injunction to restrain his landlord from prosecuting suits commenced against certain other tenants occupying portions of the building, and to redeem the premises from a forfeiture taken by the lessor. In the course of the opinion, the court said:

“The lease conferred upon appellant the clear right to declare a forfeiture for the non-payment of rents, and if the power reserved was properly exercised, then the bill ought to have been dismissed; but if there was no declaration of forfeiture, and the contracts alleged, in regard to the collection of rents and the completion of the buildings, were made, then there were clear grounds for equitable relief.”

Counsel for the defendant have cited Mulvey Mfg. Co. v. McKinney, 184 Ill. App. 476, and Watson v. Smith, 180 Ill. App. 289, as being contra, but upon an examination of them, we are of the opinion that they are distinguishable, and, in any event, do not establish the law as contrary to what has been stated above.

In our judgment, the threat to forfeit the leasehold estate; the grave doubt whether the lessee could successfully defend against a declared forfeiture; the total absence of any consideration or quid pro quo for the payment; the immense disparity between the judgment of $8,350.97 and the great value of the leasehold estate and buildings, the loss of which was threatened; the unequal position of the parties before the law at the time of the payment; the seeming reasonableness of the choice made by the lessee all taken together lead to the conclusion that the payment was brought about by such conduct on the part of the lessor as is denoted by the law as compulsion, or coercion, or duress.

Inasmuch as there was no denial that the money was paid under protest, and as the arguments made here in the briefs of counsel are based upon that assumption, and as, based upon that assumption of fact, in our opinion, the law authorizes recovery by the plaintiff, the judgment will be reversed and judgment entered here in favor of the plaintiffs in the sum of $11,269, which total sum is made up of $8,350.97 with interest thereon at 5 per cent per annum from May 6, 1921, to date.

Reversed and judgment here.

Holdom and Wilson, JJ., concur.