text:
    First National Bank of Ava, Illinois, appellee, v. Chas. W. Wilson. A. C. Mautz, appellant.
    Gen. No. 8,287.
    Opinion filed January 24, 1929.
    John J. Baker, for appellant. W. F. Ellis and Geo. B. Rhoads, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Frank Owens, appellee, v. C. A. Page, appellant.
    Gen. No. 8,288.
    Opinion filed January 24, 1929.
    J. W. Templeman, for appellant. Benj. F. Cassiday, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Amelia G. Montgomery, appellee, v. The Wabash Railway Company, appellant.
    Gen. No. 8,291.
    Opinion filed January 24, 1929.
    Rehearing denied April 4, 1929.
    LeForgee, Black & Samuels, for appellant; N. S. Brown, of counsel. Redmon & Redmon, for appellee; Russell E. Reno, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    The People of the State of Illinois, defendant in error, v. William Coffman, plaintiff in error.
    Gen. No. 8,244.
    Opinion filed January 24, 1929.
    Edward Free and Wayne Nevin, for plaintiff in error. Hugh Green, State’s Attorney, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Omer Chamberlain, plaintiff in error.
    Gen. No. 8,250.
    Opinion filed January 24, 1929.
    Arthur E. Miller and William F. Smith, for plaintiff in error. Wirt Herrick, State’s Attorney, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Charles S. Stevens and Robert Fraley, plaintiffs in error.
    Gen. No. 8,258.
    Opinion filed January 24, 1929.
    John I. Magill, for plaintiffs in error. N. E. Eullenwider, State’s Attorney, J. M. Weldon and L. E. Sullivan, Assistant State’s Attorneys, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Joe Hayes, appellee, v. National Life & Accident Insurance Company, appellant.
    Gen. No. 8,260.
    Opinion filed January 24, 1929.
    Hutton & Clark, for appellant. J. D. Allen and Jinkins & Jinkins, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Lucy Riley, appellee, v. W. G. Musser, appellant.
    Gen. No. 8,272.
    Opinion filed January 24, 1929.
    W. St. J. Wines and Evan Worth, for appellant. Harold E. Trapp, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Nancy E. Goben, appellee, v. Chicago & Illinois Midland Railway Company, appellant.
    Gen. No. 8,281.
    Opinion filed January 24, 1929.
    Provine & Williams and Scott Lincoln & Beale, of counsel. E. P. Nisehwitz and Clarence W. Heyl, for appellee; Heyl & Heyl, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Fourth District.
    The People ex rel. Leo Sauget, appellee, v. John N. Wuest and Martin Schnipper, appellants.
    Opinion filed February 1, 1929.
    Stay order terminated June 27, 1929.
    P. K. Johnson and Farmer & Klingel, for appellants. D. E. Keefe and Thos. L. Fekete, Jr., for appellee; Keefe & Listeman, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Catherine Wolz, appellee, v. East Side Levee & Sanitary District, appellant.
    Opinion filed June 5, 1929.
    Rehearing denied July 16, 1929.
    Harry Faulkner, for appellant. E. L. Maher and J. B. Harris, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Maude Grant, appellant, v. Z. Z. Lyerla and T. F. Aldridge, appellees.
    Opinion filed June 5, 1929.
    Rehearing denied July 16, 1929.
    C. C. Crawford and Hosea V. Ferrell, for appellant; Hay, counsel. H. A. Spann and R. Wallace Karraker, for appellees.
   Mr. Presiding Justice Barry

delivéred the opinion of the court.


author: Mr. Justice Newhall

text:
    Mary Walker, appellee, v. Robert Cossey, Admr., appellant.
    Opinion filed June 5, 1929.
    Clarence O. Conley, H. E. Evans and Clarence E. Soward, for appellant. Grover E. Holmes, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Pappas Pie & Baking Company, appellee, v. Alton & Eastern Railroad Company, appellant.
    Opinion filed June 5, 1929.
    H. J. Bandy, for appellant. E. H. Sehwarzenbaeh, Josiah Whitnel and H. L. Browning, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Edmund F. Wies, appellant, v. John Alvin O’Horow et al., appellees.
    Opinion filed June 20, 1929.
    W. E. Knowles, for appellant. H. Grady Vien, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    William A. Kerber, Appellee, v. Katherine E. Girling et al., on appeal of Eagle Star and British Dominions Insurance Company, Ltd., of London, England et al., Appellants.
    Gen. No. 7,964.
    Opinion filed June 29, 1929.

      Silber, Isaacs, Silber & Woley, for appellants; Samuel Levin and Herbert W. Hirsh, of counsel.
    Healy & Beverly, for appellee; Glenn R. Beverly, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

This is an appeal by Eagle Star and British Dominions Insurance Company, Ltd., of London, England, and North River Insurance Company, of the City of New York, a corporation, appellants, from a decree of the circuit court of Kane county, in the suit of William A. Kerber, appellee, against Katherine E. Girling, et al., to foreclose a trust deed.

The record discloses that on September 1,1922, William L. Buleman and Hattie G. Buleman, his wife, for an indebtedness to William A. Kerber, of $2,500, executed their three promissory notes for said amount, all due five years after date with interest at the rate of 7 per cent per annum, payable semiannually. To secure the payment of said indebtedness, the said William L. Buleman and Hattie G. Buleman executed a trust deed to G. B. Beverly, as trustee. The real estate which is the subject matter of this trust deed consists of certain real estate in the Village of South Elgin, and was improved by a dwelling house and certain outbuildings.

The record further discloses that William L. Buleman and Hattie G. Buleman conveyed the lands and premises described in the trust deed to Leonard F. Hammel, who afterwards conveyed the property to Katherine E. Girling; the deed conveying the premises to said Katherine E. Girling contained a covenant by which she assumed and agreed to pay the said indebtedness.

Katherine E. Girling, after she became the owner of the premises in question, caused the buildings thereon to be insured by the appellants, insurance companies, , Each policy contained the provision that loss, if any, was payable to G. E. Beverly, trustee, as his interest may appear. The policy also contained among other things the following provision: ‘ This policy, as to the interest therein of the said payee as mortgagee (or trustee) only, shall not be invalidated by any act or neglect of the mortgagor, or owner of the within described property nor by the commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor by'any change in the interest, title or possession of the property, nor by any increase of hazard.”

Each policy also contained a provision that whenever the company should pay the mortgagee any sum due under the policy, and should claim as to the mortgagor, or owner, that no liability therefor existed, the company should, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment should be made. Katherine E. Girling defaulted in the payment of interest due on the mortgage indebtedness and William A. Kerber instituted a suit of foreclosure against her.

The insurance companies in question were made parties defendant to the suit. They filed separate answers, in which they denied the liability because they claimed that Katherine E. Girling was not the sole owner of the mortgaged premises. The answer of each company alleged that a suit had been started by Katherine E. Girling in the federal court in Chicago against the said companies on said policies, on account of the destruction of the buildings by fire, and that said cases were at issue but undetermined.

The appellants, while denying all liability to William A. Kerber, appellee, in their answers made no such contention before the chancellor, but admitted their liability.

Appellants and appellee, Kerber, agreed upon a draft of a decree which directed the insurance companies to pay to appellee the amount due him on the mortgage indebtedness, and ordered him to assign the notes and mortgage to the insurance companies, and that the said companies should be subrogated to all the rights of appellee, by reason of said notes and mortgage. Katherine E. Grirling objected to the form of the decree, and urged that the suit in the federal court was undetermined and that there could be no right of subrogation inure to the insurance companies until the federal court had decided that the companies were not liable under the policies of insurance. The chancellor took this view, and entered a decree directing the insurance companies to pay the mortgagee the amount due on the mortgage within 15 days. The chancellor also ordered that Katherine E. Grirling pay the amount due on said mortgage indebtedness within 30 days, and that in the event she failed to make such payment within that time, the mortgaged premises should be sold in satisfaction of the debt.

The appellants insist that the decree should have directed an assignment of the notes and mortgage to them, and that they would thereupon become subrogated to the rights of appellee. This cause was argued orally, and it was stated on the part of appellee that he had no interest in the contention of the insurance companies or of Katherine E. Grirling, further than that he wanted to protect the decree to the end that appellee might have the premises sold without delay in case the mortgage indebtedness was not paid.

Appellee was of the opinion that the chancellor was right in not ordering an assignment and subrogation in favor of the insurance companies.

The contention of appellee in this respect was based on the rule announced in Traders’ Ins. Co. v. Race, 142 Ill. 338, in which at page 345 the court, among other things, said: “As we have seen, the interest of Race was liable to forfeiture for breach of the conditions of the policies, and if such forfeiture was incurred, appellants had the right, on paying the mortgage debt, to be subrogated to the mortgagee’s right, as against the mortgagor. In such case, the notes and mortgages would rightfully be assigned to appellants, and they be entitled to foreclose the same. The mortgage clause, however, provides, that in case of loss, under such circumstances as that appellants shall deny their liability to the mortgagor, they may pay to the mortgagee the sum due under the mortgage, and become entitled to an assignment of the mortgage debt and all securities therefor. The right to subrogation, however, cannot be said to depend upon the naked claim of appellants that there is no liability on the policies to appellee, but the facts must warrant such claim. The claim, to entitle them to an assignment and subrogation, must be made in good faith, and be based upon a state of facts which, under the contract of insurance, would entitle them to exemption from liability.”

The rule announced in Traders’ Ins. Co. v. Race, supra, is a correct one, as applied to the situation there presented. In that case the insurance companies had taken an assignment of the mortgage and had instituted a suit for foreclosure. The claim was made that the policy was void because of a violation of a provision charging unoccupancy. The suit was between the insurance companies and the assured and it was necessary in order for the companies to maintain their suit that they not only claim, but prove, that the policy had been avoided.

The case at bar was not brought by the insurance companies against Girling; they were made defendants to the foreclosure proceeding of Kerber. The insurance companies had no means nor power by which they could prevent a money decree against them, and it would be manifestly inequitable and unjust to require them to pay off the mortgage without subrogating them to the rights of the mortgagee. It is true that their claim of nonliability to Katherine E. Girling must be made in good faith. If the insurance companies are compelled to have their, claim of nonliability adjudicated in the federal court before they can be subrogated to the rights of the mortgagee, they will be rendered helpless. This situation would arise from the fact that the notes and mortgage will have been merged in the decree and cannot be assigned; such a situation would thwart justice and is not in harmony with the contract, under which the companies became liable to the mortgagee. It would make them subject to all the liabilities of the contract, but deprive them of all of the advantages of it. To require the insurance companies to litigate the question of the liability with the assured before they can make payment to the mortgagee and be subrogated to his rights, would deprive and prevent the right of subrogation.

The question of the liability of the companies to the assured cannot definitely be determined until the conclusion of the trial in the federal court. At that time the mortgage would be merged in the decree of the circuit court and could not be assigned, and therefore no subrogation could be had. The. reasonable interpretation to be given to the subrogation clause found in the policies of insurance is that whenever the insurance companies, in good faith, deny liability to the assured and have reasonable grounds for such claim of non-liability, then and in that case they may take an assignment of the mortgage and be subrogated to the rights of the mortgagee.

We are of the opinion that the. decree should be reversed and the cause remanded with directions to modify the decree so that the insurance companies will be directed to pay the amount due under their respective policies within a given time; that upon the making of such payment, the notes and mortgages shall be assigned, by appellee, to them according to their respective interests and that the companies be subrogated to the rights of the mortgagee, as to said notes and mortgage ; that Katherine E. Girling be also directed to pay the mortgage indebtedness within a given time, and in case of default being made in the payment of such indebtedness by the insurance companies or Girling, then the mortgaged premises shall be sold to satisfy the same.

Reversed and remanded with directions.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. James Patten, Plaintiff in Error.
    Gen. No. 33,370.

      Opinion filed July 3, 1929.
    Rehearing denied July 11, 1929.
    Kirkland, Fleming, Green & Martin, for plaintiff in error; Weymouth Kirkland, Walter E. Tinsley and William H. Symmes, of counsel.
    Samuel A. Ettelson, Corporation Counsel and John A. Swanson, State’s Attorney, for defendant in error; Martin H. Foss, Assistant Corporation Counsel and Lee R. La Rochelle, Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff in error was charged by information with operating a motor vehicle on the public highway in the City of Chicago without first procuring a license for the same, in violation of section 9 of the Motor Vehicle Act, Cahill’s St. ch. 95a, H 9. He pleaded not guilty and waived trial by jury. On a hearing before the court he was found guilty and sentenced to pay a fine of $10 and also the costs,'and in default of payment stand committed to the House of Correction until the fine and costs shall be worked out at the rate of $1.50 a day or until paid.

The facts are not in controversy. All were practically stipulated to. Plaintiff in error operated a motor vehicle, to wit, a “semi-trailer,” on the public highways, as charged, without being licensed so to do under the provisions of the Illinois Motor Vehicle Act, and without having applied for and obtained a license ¡so to operate, and without paying a license fee.

The act in question refers to both trailers and semitrailers. The evidence discloses that a trailer has four wheels and a semi-trailer, two. Neither is self-propelling. Each when put to use is attached to and pulled by a tractor or tractor-truck, a self-propelled vehicle. The semi-trailer is attached to the truck by its frame overlapping the rear of the frame of the tractor-truck on a turntable or so-called fifth wheel.

A trailer salesman testifying for plaintiff in error said that when so attached to the truck “it becomes a six-wheel unit. ’ ’ While this may be true in a practical sense it does not change the fact that a tractor and a semi-trailer are each separate units and considéred as ' such in the Motor Vehicle Act.

The question involved here is whether upon a proper construction of section 9 of the Act a license fee is required for the use of a semi-trailer on public highways.

By section 1 of the Act, Cahill’s St. ch. 95a, 1f 1, the term “motor vehicle” includes “trailers, or semitrailers pulled or towed by a motor vehicle. ’ ’

Section 2, Cahill’s St. ch. 95a, 2, divides motor vehicles into two divisions, the second of which is “those vehicles which are designed and used for pulling or carrying freight. . . .”

Section 3, Cahill’s St. ch. 95a, ff 3, fixes the maximum • gross weight to be permitted on the road surface through any vehicle and the number of pounds per inch of width of tire under one wheel.

Paragraph 5 of said section 3 provides that: “Where trailers are used the length of any vehicle, or vehicles, combined with their trailers, shall not exceed 65 feet. ’ ’

Section 5, Cahill’s St. ch. 95a, If 5, provides that “all motor vehicles and all trailers or other vehicles in tow thereof, or thereunto attached, operating upon the improved highways, shall have tires of rubber or some material of equal resiliency,” and that defective tires shall not be permitted to be used if so worn or otherwise damaged as to cause undue vibration or undue concentration of the wheel load on the surface' of the road.

Section 9, Cahill’s St. ch. 95a, ft 9, provides that “All vehicles of the second division as described in section 2 of this Act, which are designed or equipped or used for carrying freight, goods, wares or merchandise, . . . shall pay to the Secretary of State . . . license fees for the use of the public highways of this State at the following rates, to-wit:” Then follow subdivisions (a), (b), (c), (d),, (e) fixing fees upon a classification of vehicles according to their gross weight, including the weight of the vehicle and maximum load. Subdivision (f) reads:

1 ‘ Tractors, traction engines or other similar vehicles used for hauling purposes, except as hereinafter provided shall pay the same fees according to their weight as hereinbefore required in this section of other vehicles. All trailers and semi-trailers used with a motor vehicle shall pay to the Secretary of State for each calendar year . . . license fees for the use of the public highways of this State at the following rates, to-wit:

“(a) Trailers having a gross weight of 2,000 pounds, and less including the weight of the trailer and maximum load $6.00.
“(b) Trailers having a gross weight of more than 2.000 pounds, and not more than 10,000 pounds, $25.00.
“(c) Trailers having a gross weight of more than 10.000 pounds, including the weight of the trailer and maximum load $50.00.”

The section then provides for assigning to. such trailer as described in the application a distinctive plate number which shall be attached to the rear of the trailer.

The defense is predicated upon the claim that because in said lettered paragraphs .(a), (b), (c) of subdivision (f) the words “and semi-trailers” are riot repeated after the word “trailers” it is a case of casus omissus in the statute and that the courts must not, by implication, add anything to the section. Special stress is laid upon the principles that the statute on which the prosecution is based being penal in character must be strictly construed; that the language of the statute will not be extended beyond its clear import to include persons not within the scope of its provisions, and that even though - it be the intention of the act to include semi-trailers within its provisions it cannot be enforced in the absence of appropriate language to make such an intention effective. Numerous authorities are cited to illustrate these generally accepted principles. But it is unnecessary to refer to authorities outside our own State. In People v. Fox, 269 Ill. 300, a case involving the construction of a criminal statute, our Supreme Court said:

“The rule is elementary that the primary object of construing a statute is to ascertain and give effect to the true intent and meaning of the legislature in enacting it; that it is ‘the intention of the law-makers that makes the law.’ (Hoyne v. Danish, 264 Ill. 467.) For the purpose of ascertaining and giving effect to this intention of the law-makers it is proper to consider the occasion and necessity for the law. . . . Where the spirit and intention of the legislature in adopting the act are clearly expressed and its object and purposes are clearly set forth, the courts are not confined to the literal meaning of the words used, when to do so will defeat the obvious legislative intention and result in absurd consequences not contemplated or intended by it. In such cases the literal language of the statute may be departed from, and words may be changed, altered, modified and supplied, or omitted entirely, if necessary to obviate any repugnancy or inconsistency between the language used and the intention of the legislature as gathered from a consideration of the whole act and the previous condition of legislation upon that subject.”

Applying this rule of construction to the act in question and the particular provisions above set out, it seems clear therefrom that the object and purposes of the act in requiring license fees for the use of the public highways of the State are to regulate the traffic thereon not only with regard to safety but with respect to the character and manner of their use so as to conserve and protect them from the deterioration that would unquestionably result from unregulated usage. That the different provisions in the statute respecting maximum weights of loads, and the character of the tires to be used on vehicles and the requirement for rear lights, and their purpose, apply as well to a semitrailer as to a trailer or any other vehicle covered by the act is not open to question. • That the act includes all vehicles whose use would affect the highways and travel thereon is clearly indicated in its various parts. Section 1 expressly includes “semi-trailers pulled or towed by a motor vehicle.” Section 2 includes in the classifications vehicles “used for carrying freight.” Section 3 in providing that vehicles combined with their trailers shall not exceed 65 feet manifestly used the word “trailers” in the comprehensive sense and ordinary definition of that term. If it did not include semi-trailers as trailers then the use of them at any length would be allowable and tend to defeat the purpose of this provision.

There is no room for doubt that section 9 requires that all vehicles used for carrying freight, etc., shall pay license fees. Subdivision (f) expressly requires that semi-trailers shall pay license fees at the rates fixed in the following lettered paragraphs (a), (b), (c), according to the weight of the “trailers.” The very language and grammatical structure of this provision indicate that the word “trailers” in said lettered paragraphs following the provision requiring “semi-trailers,” as well as trailers, to pay fees “at the following rates” is used to include trailers of all descriptions. This construction is clearly implied as within the intention of the act by section 9 (a), Cahill’s St. ch. 95a, H10, which provides that all vehicles, “trailers and semi-trailers” used for carrying freight, when used for hire operating regularly over fixed or definite routes therein described “shall pay the following additional license fees for each 100 pounds gross weight of vehicle and load: (1) For vehicles, trailers and semi-trailers used for carrying freight, and with fixed and definite routes, one ($1.00) dollar.” The word “additional” clearly refers to the fees required in the preceding lettered provisions (a), (b), (c) of said subdivision (f) of section 9, thus indicating their application to semi-trailers.

We think it is hardly necessary to dilate further upon the principles governing the construction of statutes as stated in the Fox case, supra, and followed in numerous decisions in this State. (Smith v. Logan County, 284 Ill. 163, 165; People v. McEldowney, 308 Ill. 575, 577; People v. Illinois Merchants’ Trust Co., 328 Ill. 223, 225.)

The same general principles are stated in Lewis-Sutherland Statutory Construction, vol. 2 (2d Ed.), ■sec. 520, that notwithstanding the rule that penal laws are to be construed strictly the intention of the lawmaker must govern in the construction of penal as well as other statutes; that “they are not to be construed so strictly as to defeat the obvious intent of the legislature.” And in section 521 that “strict construction is to be applied only where the effect is reasonably open to question”; that the rule of strict construction is not violated by allowing “even the more extended of two meanings where such construction better harmonizes with the context.” Our statute on construction of statutes also provides that “all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the legislature may be fully carried out.” (Section 1, ch. 131, Cahill’s St.) Upon these principles of construction we can have no doubt that under the agreed state of facts the judgment of conviction should stand.

Affirmed.

Scanlan and Gridley, JJ., concur.


text:
    Catherine Hughes, Appellee, v. Elmer M. Judd, Appellant.
    Gen. No. 33,475.

      Opinion filed July 3, 1929.
    Rehearing denied July 15, 1929.
    Rothbart & Lewis and Robert F. Kolb, for appellant.
    Essington & McKibbin and James J. Barbour, for appellee; Hamilton K. Beebe and Creighton S. Miller, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a finding and judgment awarding the right of property in plaintiff to a certain Swallow aeroplane which was attached in a suit by appellant against one Paul Snick.

Paul Snick was the Indiana distributor for the Swallow Aeroplane Company of Wichita, Kansas, where it had a factory. He had a contract with that company to purchase aeroplanes on certain terms and to resell them to whomsoever he liked in the State of Indiana. Both he and plaintiff lived in Plymouth, Indiana. She was his aunt. October 17, 1928, Snick made a deposit with said company of $500 on an aeroplane. He got no title papers to the same until November 5 following when he paid the balance of the purchasé price. After making the deposit of October 18, he had a standing advertisement in a New York magazine called “Aviation” for the sale of a Swallow aeroplane. The last insertion was in the issue of November 3, 1928. November 2 he executed a bill of sale for said aeroplane to plaintiff, his aunt, in consideration of $2,200, -for which she gave her check, and the same was cashed at a bank in Plymouth on the same day. When asked what she did to take possession of the machine, she answered: “I instructed Paul to go and get it.” Snick testified that he left Plymouth November 4 and arrived in Wichita on the morning of the 5th to get the aeroplane; that on November 5 he received from the company a bill of sale for the aeroplane on which he was credited with the purchase price, including his previous deposit of $500; The following morning he got into the aeroplane and started towards Plymouth, landing in Chicago about dusk November 6. The weather conditions were too bad for flight on1 the fol-' lowing day and when he went to the field to resume flight on the 8th he was served with the attachment writ.

No proof was introduced by defendant other than the bill or memorandum of the sale from the Swallow Company to Snick on November 5, 1928, and a stipulation as to the identity of the aeroplane, the deposit thereon October 18, 1928, the custody of the aeroplane with said company in the interval to November 5,1928, and that Snick did not have actual possession, custody or control of the aeroplane until November 5.

While defendant sought to cast suspicion upon the bona fides of the sale from Snick to plaintiff by reason of their relationship and the fact that she could not drive an aeroplane, and that he had advertised the same in an issue of said magazine November 3 (which, however, was a continuing advertisement and evidently arranged for before November 2 in order to reach New York for that insertion), yet these circumstances amounted to mere suspicion and not substantive evidence sufficient in our judgment to impeach the sale.

But it is contended that even though the sale to plaintiff did take place it was fraudulent and void as to creditors of Snick because possession of the aeroplane was left with Snick, and numerous cases are cited laying down the unquestioned doctrine in this State that “an absolute sale of personal property, where the possession is permitted to remain with the vendor, is fraudulent per se, and void as to creditors and purchasers,” as was said in Thornton v. Davenport, 2 Ill. (1 Scam.) 296, 299. “The rule is founded in public policy, and is designed to prevent secret and collusive transfers of property, and the procurement of credit upon an apparent ownership, different from that which really exists.” Bass v. Pease, 79 Ill. App. 314. But the doctrine is qualified somewhat by the general rule “that the delivery shall take place as soon as it reasonably may, regard being had, not to the convenience of the parties, but to the character of the goods, the situation of the property and the circumstances of the case.” (2 Mechem on Sales [1901], sec. 963; 2 Moore on Fraudulent Conveyances [1908], p. 551.) That qualification of the rule has been recognized in this State faith regard to the neglect of a mortgagee in a chattel mortgage to reduce the property to possession on default of the mortgagor, “or within a reasonable time thereafter” to be determined by the circumstances of the parties. (Shannon v. Wolf, 173 Ill. 253, 258; Reed v. Eames, 19 Ill. 594; Jacobson v. Patterson, 190 Ill. App. 266; Burk v. Faber, 188 Ill. App. 421.)

But we think the circumstances of the case bring it under the provisions of the Uniform Sales Act as to the passing of title to a contract of sale of “future goods.” Section 5 of that Act, Cahill’s St. ch. 121a, ][ 8, reads:

“(1) The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the malcing of a cortrtract to sell, in this Act called ‘future goods.’
“(3) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods.”

The rule for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer as provided in section 19, rule 4 (1), Cahill’s St. ch. 121a, 22, is that: “Where there is a contract to sell . . . future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract” by either party thereto with the assent of the other, the property in the ease thereupon passes to the buyer. Such assent may be expressed or iniplied, and may be given either before or after the appropriation is made.

It is clear that on November 2 when the bill of sale of the aeroplane in question by description was made by Snick to plaintiff the title thereto still remained in the Swallow Aeroplane Company, and that the title passed out of the company as soon as the machine was paid for by Snick and delivered to him. While, therefore, the parties to the bill of sale purported to effect a present sale it was of “future goods” as defined by said act and therefore the agreement operated as a contract to sell goods “acquired by the seller after the making of the contract to sell. ’ ’

Discussing said provision of the act in 1 Williston on Sales (1924), sec. 137, it is said: “The attempted sale implies an obligation on the part of the seller to transfer title to the buyer ‘thereafter. That is, though the parties purported to make a sale, if their intention cannot be effectuated fully, they are held at least to have made a-contract.” This was the construction put upon a present sale of beans which were to be grown in the future where the contract stated that it was understood by both parties the title was to pass at once and constitute an absolute sale. (Hogue-Kellogg Co. v. Baker, 47 Cal. App. 247, 190 Pac. 493.) The goods, too, were “sold by description,” were “in a deliverable state” and were “unconditionally appropriated”' to the contract by the seller with at least the implied assent of the buyer, who gave him the money for the same and sent him to Wichita to get her aeroplane. When he took possession thereof it was unconditionally appropriated to the contract and in accordance with the clear intention of the parties the title thereto passed to plaintiff as the buyer. From that time on Snick was legally her agent to deliver the property.

While in coming to Chicago Snick did not take as direct a route as possible to Plymouth, Indiana, the explanation of his following an air route by “markings” along railroad lines to Chicago is a plausible one, and we find nothing in the circumstances of the route taken or the delay that ensued from weather conditions that has a legitimate tendency to impeach the tona fides of the transaction and the intention that the title of plaintiff to the aeroplane should pass when Snick obtained possession thereof.

The judgment is affirmed.

Affirmed.

Scanlan and G-ridley, JJ., concur.


author: Mr. Justice Gridley

text:
    G. A. Spelson for use of William Oran and D. A. Speliotopolus, Appellees, v. Joseph Leiter et al., Trustees under the Last Will of Levi Z. Leiter, Deceased, Appellants.
    Gen. No. 33,430.

      Opinion filed July 3, 1929.
    Mayer, Meyer, Austrian & Platt, for appellants.
    Stephen A. Cross and W. L. Murray, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action in assumpsit, commenced June 22, 1928, in the municipal.court of Chicago and based upon the provisions of a written lease by defendants to plaintiffs, there was a finding and judgment, entered February 1, 1929, against defendants for $11,000, and they appealed.

The lease is dated J armary 2,1926, and by it defendants, as first parties, demised to plaintiffs, as second parties, for the period of five years from May 1,1928, until and including April 30, 1933, the ground-floor store known as No. 4 South Clark Street, Chicago, and also 100 square feet in the basement, to be used for a restaurant, soda fountain, confectionery, and sale of cigars and cigarettes, and for no other purpose. The rent for the entire term was $70,000, payable in monthly instalments, as stated, on the first day of each and every month. The monthly instalments for the first year were fixed at $1,000 each. The lease contained provisions, usual in such instruments, and also the following provision:

“It is hereby covenanted and agreed . . . that in case the lessors (defendants) shall desire to sell the premises of which the demised premises are a part, or to make a 99-year lease of said premises, or to lease the entire building in which said premises are situated to one party, or to remodel the building now on said premises, or to erect a new building thereon, they shall be entitled to terminate this lease by giving to the lessee (plaintiffs) six months’ notice in writing of their desire so to terminate this lease, and by repaying to the lessee, upon the surrender of said demised premises, an amount equal to six months’ rent herein reserved. And the lessee hereby covenants and agrees that, at the expiration of the period of such six months ’ notice, he will peaceably surrender to the lessors possession of the premises hereby demised, and the said lessee shall not be entitled to receive the said sum equal to six months’ rent herein reserved, unless he shall so peaceably surrender possession at the expiration of said six months’ period as hereinbefore provided. ’ ’

Attached to the lease is a rider or memorandum, signed by the parties, to the effect that the lessors (defendants) agree to pay to the lessees (plaintiffs) certain amounts “in the event this lease is canceled before its expiration,” viz, $5,000, “if canceled during the year 1928”'; $4,000, if canceled during 1929; $3,000, if canceled during 1930; and $2,000, if canceled during 1931. And it is stated that “these amounts are in addition to the amount of one-half of the year’s rental provided in the lease for the cancellation on the six months’ notice.”

In plaintiffs’ statement of claim the lease and rider are set forth, and it is alleged that prior to May 1, 1928, “defendants caused or permitted the building on said premises to be torn down or destroyed and said premises leased to another, thereby cancelling said lease”; and that thereby defendants became indebted to plaintiffs in the sum of $5,000, which defendants have failed and refused to pay. The clause in the lease, as first above mentioned, is then set forth, and it is further alleged that defendants either, made a 99-year lease or other lease on the premises or erected another building thereon, and, prior to May 1, 1928, without notice in writing to plaintiffs, caused the building on the premises to be torn down and destroyed and a new building started thereon; that by reason thereof “defendants elected to take advantage of said clause of said lease and terminate said lease”; that defendants thereby became indebted to plaintiffs in the further sum of $6,000, “being one-half of the year’s rent during which the lease was so terminated,” which sum defendants also have failed and refused to pay; and that defendants’ total indebtedness to plaintiffs is $11,000, together with interest, etc.

Defendants in their affidavit of merits denied that they were indebted to plaintiffs in the sum of $11,000, or in any sum. As to the payments mentioned in the rider to be made to plaintiffs they alleged that the same “were to reimburse the lessees (plaintiffs) for expenditure to be made by them in improving the premises described in said lease, and in installing fixtures, etc.”; that defendants at no time canceled the lease; that plaintiffs did not spend any sums in improving the premises; and that, therefore, they are not entitled to be reimbursed. Defendants further denied that they had caused the building to be torn down or that they had canceled plaintiffs’ lease. And they alleged that, subsequent to the making of the lease, they entered into a 99-year lease with the Madison-Clark Building Corp., an Illinois corporation, for the entire ground and building (of which the premises leased to plaintiffs constituted a part); that said 99-year lease “was especially made subject to all existing leases and was thus made subject to the lease made to plaintiffs”; and that defendants took no part in tearing down the building, but that the same was torn down by the Madison-Clark Building Corp.

Upon the trial, after plaintiffs had introduced the lease and attached rider, Spelson, one of the plaintiffs, testified that he took the lease to the recorder’s office of Cook county and had it there recorded on April 22, 1926; that thereafter and until February, 1928, he “didn’t do anything” with reference to the premises, but was “waiting for possession”; that early in February, 1928, he noticed that the building was being torn down, that shortly thereafter he and his coplaintiff called on one Rogers, attorney for defendants, who informed them in effect that defendants, as trustees of the Leiter estate, had made a 99-year lease of the entire premises to the Madison-Clark Building Corp., that the lease had been made subject to the lease to them (plaintiffs), that said corporation was apparently wrecking the building for the purpose of erecting a new one, and that any claim of plaintiffs would have to be taken up with said corporation, etc.; that plaintiffs had never received any notice from defendants . that plaintiffs ’ lease was to be canceled; that they had never taken possession of the premises leased to them because, prior to May 1,1928, the old building had completely been torn down; that they had never paid any rent to defendants, but that on May 1,1928 (the beginning of the term of their lease), they had tendered to defendants checks for $1,000 in payment of the first month’s rent, which tender defendants had refused. The other plaintiff, Speliotopolus, corroborated Spelson as to what Rogers had told plaintiffs in February, 1928, and further testified that following said interview with Rogers they did nothing further in the matter and for the reason that plaintiffs “couldn’t locate” the Madison-Clark Building Corp., and “couldn’t find out who they were. ’ ’

Defendants introduced in evidence the 99-year lease. It is dated November 1, 1926, recorded in the recorder’s office of Cook county on December 11, 1926, and is for the term from November 1, 1926, to October 31, 2025. In sections 1 and 2 of article III of the lease it is provided:

“Section 1. It is expressly covenanted and agreed that this lease is made by the lessors and accepted by the lessee subject to various leases to various tenants of portions of the building now upon the demised premises, a list of which leases has been furnished by the lessors to the lessee, and each of which leases is subject to termination by the lessors on not more than six months’ notice, and on sundry terms of payment to the lessee or lessees as described in said respective leases, and the said leases have been contemporaneously with the execution hereof assigned by the lessors to the lessees, and the lessee covenants and agrees that it will perform all the obligations of the lessors in said leases contained, and the lessors agree that the lessee shall from and after the date of the delivery of this instrument be entitled to receive and collect all the rentals in said respective leases reserved.

“Section 2. The said lessee covenants and agrees that it will forthwith and with all due diligence cause said leases so assigned to it to be terminated and can-celled, and will itself take possession of the various premises demised in such leases with all convenient speed, so that it may proceed as soon as may be to erect the building hereinafter in Article IV provided for.”

In said article IV of the 99-year lease it is stated inter alia that “the lessee further agrees that it will with all reasonable speed, after it obtains possession of said premises from the present lessees of portions of said premises, erect or cause to be erected upon said demised premises a first class fireproof building . . . not less than twenty (20) stories in height, costing not less than $1,250,000, and covering substantially the whole area of said demised premises, except reasonable, spaces for light and air.”

Plaintiffs introduced a certified copy of the charter or certificate of incorporation of the Madison-Clark Building Corp., dated September 9, 1926, and signed by the then Secretary of State of Illinois, etc. The names and Chicago addresses of the subscribers to the stock and of the first board of directors are therein contained. Said charter or certificate and attached papers bear an indorsement showing that the same were filed for record in the recorder’s office of Cook county on September 13, 1926. When the same was introduced in evidence, plaintiffs ’ attorney stated that plaintiffs made no charges of any conspiracy, etc.

And it was stipulated that the Madison-Clark Building Corp. took possession of the premises and the old building under the 99-year lease and tore the building down; that the old building was completely destroyed by March 1, 1928; that at the time of the commencement of the term of defendants’ lease to plaintiffs (May 1, 1928) that corporation had commenced the erection of the new building upon the premises; and that “prior to the completion of said new building the National Surety Company took over the project of completing it, due to the inability of said Madison-Clark Building Corp. to complete the same.”

No evidence whatever was introduced by plaintiffs showing any actual damages sustained by them by reason of the fact that they were unable to take possession and occupy said ground floor store, etc., of the old building-.

Counsel for plaintiffs in their printed brief here filed state that “the main question presented for review is the construction of the lease between the parties hereto and the correct application of the law governing same.” Counsel for defendants in their brief state the question to be:

“Whether or not the provisions of the lease and rider, authorizing the termination of the lease by defendants in the event of certain contingencies upon their giving to plaintiffs six months’ notice in writing of their desire to terminate the lease and repaying to plaintiffs, upon their surrender of the premises at the termination of said six months’ notice, a sum equal to six months ’ rent, plus $5,000, were effective in the situation presented by this case, where the building was destroyed by a subsequent lessee of defendants prior to the time that plaintiffs took possession or paid any rent under the terms of their lease and prior to the commencement of the term thereof.”

And counsel for defendants contend in substance (1) that said provisions were not intended to become effective until after the term of plaintiffs’ lease had commenced and they had taken possession; (2) that, unless'the method for terminating the lease reserved to the lessors (defendants) was followed, there is no provision in the lease for liquidated damages, and the attempted collection of the sums (aggregating $11,000) specified in the lease amounts under the circumstances disclosed to the enforcement of a penalty, which is not sanctioned by the courts; and (3) that plaintiffs’ claim, if any they have, must be for .actual damages sustained by them, which were not proved.

1 As to the first contention we are of the opinion that it is meritorious. The item of $6,000, of plaintiffs’ aggregate claim of $11,000, is based upon the paragraph of the lease first above mentioned, wherein it is provided that, in case the lessors (defendants) shall desire to sell the éntire premises, of which the demised premises are a part, or to make a 99-year lease of said entire premises, etc., they (defendants) “shall be entitled to terminate this lease by giving to the lessee (plaintiffs) six months’ notice in writing of their desire . . ., and by repaying to the lessee, upon the surrender of said demised premises, an amount equal to six months’ rent herein reserved,” etc. We think that the words “repaying” and “surrender” indicate an intention that the provision was only to be in effect after plaintiffs, as lessees, had actually taken possession of the particular parts of the building demised to them. It is not provided that, upon termination or cancellation of plaintiffs’ lease, defendants, as lessors, shall “pay” to plaintiffs the equivalent of six months’ rent, but that they shall “repay” it upon “surrender” of the demised premises by plaintiffs. The word “repay” is defined in the Century Dictionary as “to pay back; refund; to make return or repayment to.” (See also Harlan Coal & Land Co. v. King Harlan Mining Co., 192 Ky. 111, 119.) Until defendants had received six months’ rent from plaintiffs they could not “repay” an amount equal thereto. Furthermore, plaintiffs could not “surrender” premises of which they did not have possession. And the repayment of said six months’ rent was only to be made upon surrender of the premises demised, not upon surrender of the lease. The other item of $5,000 in plaintiffs’ claim is based upon the attached rider, executed at the same time as the lease and more than two years before the term of plaintiffs’ lease was to begin. It provides for certain additional payments to be made to plaintiffs “in the event this lease is canceled before its expiration,” viz., $5,000, if the lease is canceled during the year 1928; $4,000, if the lease is canceled during the year 1929; and lesser sums if the cancellation occurs during the years 1930 or 1931, And it is also stated that “these amounts are in addition to the amount of one-half of the year’s rental provided in the lease for the cancellation on the six months’ notice.” This statement ties up the rider with said other mentioned provision of the lease, and, construing both together, we think the intention of the parties was that neither said other mentioned provision of the lease nor said rider was to be effective until after plaintiffs had taken possession on May 1, 1928. Although the rider was executed at the same time as the lease (January 2, 1926), there is no provision for any payments to be made during the years 1926 or 1927. If it had been the intention of the parties that, in case the old building (of which the demised premises were a part) was torn down during either of said two years, any amounts were to be paid by defendants to plaintiffs, that intention could easily have been expressed.

And we think that there is substantial merit in defendants’ counsels’ second contention as above stated. Nowhere in the lease or rider is there any provision for “liquidated damages,” as such. Nor is there any provision for such damages in case plaintiffs, as lessees of a portion of the old building, should be prevented from entering into the possession thereof at the beginning of the stipulated term because of the building having in the meantime been torn down and destroyed. In Advance Amusement Co. v. Franke, 268 Ill. 579, 581, it is said: “The courts of this State, as well as in other jurisdictions, lean towards a construction which excludes the idea of liquidated damages and permits the parties to recover only damages actually sustained.” (Citing Scofield v. Tompkins, 95 Ill. 190; Radloff v. Haase, 196 Ill. 365.)

And we are of the opinion that, inasmuch as plaintiffs did not introduce any evidence showing wherein and in what amount they were damaged because of the destruction of the premises demised to them and of their inability to take possession of said premises on May 1, 1928, pay the stipulated rent and occupy said premises for the five-year term, the court erred in entering the judgment appealed from.

Accordingly the judgment of the municipal court is reversed and the cause remanded.

Reversed and remanded.

Barres, P. J., and Sgarlar, J., concur.


text:
    Percival B. Coffin, Administrator of the Estate of James MacDonald, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 33,439.
    Opinion filed July 3, 1929.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, E. Marshall Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.

      John J. Coburn and John P. McDonald, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action commenced in the superior court of Cook county on April 16,1926, against the City of Chicago and Thomas J. Duffy, for negligently causing the death of plaintiff’s intestate, there was a trial before a jury in December, 1928, resulting in a verdict and judgment against the City for $5,000, and this appeal followed. Upon the first trial in June, 1928, Duffy on plaintiff’s motion was dismissed as a defendant, a jury under the court’s instruction returned a verdict finding the City not guilty, and a new trial was awarded.

Plaintiff’s declaration consisted of three counts, to which the City filed a plea of the general issue. In the first count plaintiff averred that on June 7, 1925, defendant (City of Chicago) was possessed and had control of a public ■ sidewalk on the west side of Eacine Avenue (a north and south street) and south of West 47th Street, Chicago; that defendant also had control of a certain opening, metal railings supported by metal posts surrounding said opening, and a cement or stone stairway (about 30 feet south of West 47th Street) leading from said opening in said sidewalk on Eacine Avenue to the basement of a building on the southwest corner of Eacine Avenue and West 47th Street; that Duffy was the owner of the building, etc.; that it was the duty of Duffy and the City to keep and maintain the sidewalk, the opening therein, and the metal railings and posts surrounding the opening, in good condition and repair; that they negligently permitted the metal railings and posts surrounding the opening “to become rusted, and be and remain in a state of decay and weakened condition”; that they were in such condition for a 'long period of time prior to June 7, 1925, of which defendants had or by the exercise of a reasonable diligence should have had knowledge; that on the day mentioned, while James MacDonald was in the exercise of due care and “while he was casually leaning against said metal railings so surrounding said opening,” a part or section of the railings and posts “collapsed and gave way suddenly and without any warning to the said James MacDonald and precipitated him with .gréat force into the opening and down upon and along the walls and floor thereof” whereby he was so greatly injured that he died on June 13, 1925; and that he left him surviving a widow and five sons (naming them), who are still living and who, by reason of his death, have been deprived of their means of support, etc.

The second count is predicated upon a claimed violation of an ordinance of the City of Chicago concerning uncovered openings in public sidewalks.

In the third count it is averred that the intersection of the two streets was a street car line intersection and transfer corner, where large numbers of people habitually leaned against or sat upon the railing; that defendants negligently permitted the railing to become in a state of decay and weakness from age and use so that it was unfit and unsafe to act as a guard or protection about the opening, and to so continue for a long space of time; and that, while plaintiff’s intestate was standing upon the sidewalk and “was in the exercise of all due care for his own safety leaning or partly supporting Ms body against said railing, and in consequence of said negligence of defendants and said condition of the railing,” it broke and gave way, and plaintiff’s intestate fell, etc.

Upon the trial, the testimony of three of plaintiff’s witnesses disclosed in substance that on Sunday afternoon, June 7,1925, they and plaintiff’s intestate, MacDonald, met in a “soft drink parlor” on the southeast corner of Racine Avenue and west 47th Street; that after having a few light drinks all crossed Racine Avemie to the sidewalk on the west side thereof and to a point a short distance south of west 47th Street; that, while some or all were waiting to board a street car and all were engaged in conversation, MacDonald and David Barnes leaned against the railing, and, a post or posts and a portion of the railing giving way, both were precipitated into the areaway or basement below, falling a distance of about eight feet; and that MacDonald, who weighed about 190 pounds, sustained a skull fracture which caused his death a few days thereafter.

Defendants’ witness, Harry Pryor, employed as a butcher at the City abattoirs, testified on direct examination: “On June 7, 1925, I lived up over Tom Duffy’s place. ... I was standing in front of the building, near the corner. ... I noticed the accident. . . . There were three men together. . . . They came across from the other side of the street over to the side that I was on, and two of them got up on this railing, and one leaned against it and over went the railing. Two of them fell.” In response to a question by the court as to where MacDonald was just prior to the accident, the witness replied: “Oh, sitting on the railing, with his feet upon the first rail.” On cross-examination the witness testified: “Two of them were on the railing. . . . They got up and put their feet on the lower rail, and when the last one leaned against it, it went. ’ ’

As to the construction and condition of the railings and posts David Barnes, plaintiff’s witness and a machinist by trade, testified on direct examination that on the following day he examined them; that the posts were fastened with four lag screws; that there were pieces of iron pipe about eight feet long, with posts every eight feet, which posts were fastened into the sidewalk with expansion shells and lag screws; that he found that the lag screws were so rotted that “they were about as thin as a match”; that when part of the railing went over the “heads broke off”; that they were “rusty”; and that the railing had been there to his knowledge for about five years. On cross-examination he testified as to the lag screws: “I did not see their size. You cannot see their size; all you can see is the head. You couldn’t tell they were rusty unless you had a hammer, and brolce them off.” He further testified that at the time of the accident “I didn’t know they were rusty; the railing, by looking at it, appeared to be solid. ... It was two pipes high— the first one being about 18 inches from the ground and the second about 36 inches. My body would strike against the top rail about at the small of my back.” Fred Martin, plaintiff’s witness, testified on cross-examination that just before the accident he “partly leaned” against the railing, and that it “did not seem to me to be loose.”

Thomas J. Duffy, deiendant’s witness, testified that he was and had been for eight years the owner of the corner building and of the railing in question; that he did not see the accident; that the railing consisted of two iron pipes, which were about two inches in diameter and which extended through four iron posts; that the posts were fastened into the cement sidewalk by screws about four inches long into lead, drilled into the concrete walk; that the screws were square headed and “screwed in with a wrench”;'that he did not know when the railing was originally erected; that he had had it painted about eight months before the accident; that one of the rails had been broken about a year before the accident and he had had it repaired; that he had frequently examined the entire railing before the accident, and that upon the last examination shortly before the accident he found it “solid” when he tested it and attempted to shake it; and that he had originally been made a party defendant but had been dismissed out of the ease and “his liability settled.” Defendant’s witness, Thomas Johnson, an employee of Duffy at the time of the accident, gave his version thereof. And he testified that the railing always appeared to him to be solid, that he examined it about a week before the accident, and that then it appeared safe and sound and did not “give any.”

After reviewing the evidence we are of the opinion that the verdict is against the weight of the evidence on the question of the City’s negligence. Plaintiff did not introduce any evidence showing that the City ever had received any actual notice that the railing was unsafe or defective. And we think that it appears from all the evidence, and particularly from the testimony of plaintiff’s witness, Barnes, that there was a latent defect in the structure, not discoverable by the City in the exercise of ordinary care on its part. A municipality is not ordinarily liable for latent defects in sidewalks, or structures thereon or immediately adjacent which have been erected by others. In 43 Corpus Juris, p. 1051, sec. 1826, it is said: “A municipality is not an insurer against all defects, latent as well as patent, but its liability is for negligence, and injuries resulting from latent defects in a highway not due to faulty municipal work, and which could not have been discovered by ordinary care and diligence, do not give a right of action against the municipality in the absence of actual notice.” And we understand this to be the law of this State. (Karczenska v. City of Chicago, 239 Ill. 483, 485; Powell v. Village of Bowen, 92 Ill. App. 453, 455.) In the Powell case it is said: “Mere existence of the defect which caused the injury is not enough to establish negligence. It is the failure to repair the defect after notice, actual or presumed, that constitutes the negligence sufficient to support a recovery.” In the present case there was testimony to the effect that the railing upon examinations made shortly before the accident appeared to be firm and solid. Indeed; one of plaintiff’s witnesses testified that it “did not seem to be loose.” And under all the evidence it is difficult for us to perceive how the City could be presumed to have had notice that some of the lag screws in the structure had become worn and rusty.

Counsel for the City also contended in substance that the judgment cannot stand because it appears that MacDonald and his companions, at and immediately before the time of the accident, were making an improper use of the structure or railing in that they were either leaning against or sitting upon it. In view of our above holding as to the insufficiency of the evidence on the question of the City’s negligence, we do not deem it necessary to pass upon the contention. We may say, however, that there are authorities supporting the contention. (See Stickney v. City of Salem, 3 Allen [Mass.] 374; Carlson v. City of Washburn, 159 Wis. 619.) In 43 Corpus Juris, p. 1073, sec. 1848, it is said: “An improper use of a structure in a street will preclude recovery against the municipality. This rule has been applied to a person who leans against or sits upon a railing or barrier erected on the side of a street and is injured by reason of its defective condition, although a different view has been taken in some jurisdictions so far as merely leaning against a railing is concerned.”

And we do not deem it necessary to discuss counsels’ further contention, viz., that the court committed error in giving instruction No. 2, offered by plaintiff.

The judgment of the superior court is reversed and the cause remanded.

Reversed and remanded.

Barnes, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    William Handel, Appellant, v. C. N. Curry and Abe Sternberg, Appellees.
    Gen. No. 33,442.
    Opinion filed July 3, 1929.
    D. W. Elliott, for appellant.
    C. W. Shaeffer and Maxfield Weisbrod, for appellee C. N. Curry.
   Mr. Justice Scanlan

delivered the opinion of the court.

On March-24, 1927, in the municipal court of Chicago, in an action of contract, William Handel, plaintiff, obtained a judgment by confession on a promissory note for $500, signed by the defendants and made payable to the order of S. L. Freeman and by the latter indorsed and delivered to the plaintiff for value received and before maturity. On March 5, 1928, the defendants moved the court to vacate the judgment by confession and filed in support of said motion certain affidavits, and on March 23, 1928, the court, over the objection of the plaintiff,' entered an order staying execution and granting leave to the defendants to appear and make defense, the judgment to stand as security. The cause was heard by the court upon evidence submitted and thereafter the court found the issues against the plaintiff, overruled motions by him for a new trial and in arrest of judgment on the finding, and entered judgment, vacating the judgment of March 24, 1927, and ordering that the plaintiff take nothing by his suit and that the defendants have and recover from the plaintiff their costs. This appeal followed. The defendants have not filed a brief in this court.

The plaintiff strenuously argues that the trial court erred in granting the defendants leave to appear and make a defense, for the reason that the affidavits in support of their motion tended merely to show alleged payments made to the plaintiff by the defendants after the entry of the judgment. There is undoubtedly much force in this contention, but in the view that we have taken of this appeal it is not necessary for us to pass upon the same.

Upon the hearing the defendants offered evidence tending to prove that they had made certain payments of money to the plaintiff, after the entry of the judgment. These alleged payments amounted to approximately $315. The plaintiff then testified that the said alleged payments applied on other notes that the defendants had given to the plaintiff for moneys loaned • them and that they had no reference to or connection with the note upon which the judgment in the instant case was entered. The defendants did not offer any evidence in rebuttal of this testimony of the plaintiff.

Even according to the theory of fact of the defendants, the alleged payments were made after the judgment in the instant case had been entered, and the contention of the plaintiff that the trial court had no right, as a matter of law, under such a state of facts, to vacate the judgment, is clearly a meritorious one. “In this State, where a judgment is in fact paid, the court, on motion, may stay further proceedings and compel the entry of satisfaction of record. Russell v. Hogan, 1 Scam. 552; Hoag v. Starr, 69 Ill. 365; Neal v. Hanley, 116 id. 423; Black on Judgments, 1014. The same rule has been adopted elsewhere. 1 Bos. & Pul. 428; Smock v. Day, 5 Band. (Va.) 638; Job v. Walker, 3 Md. 129; Dunlap v. Clemence, 18 Ala. 778; Chambers v. Neal, 13 B. Mon. 256; Marsh v. Haywood, 6 Humph. 210; McClellan v. Baker, 20 Kan. 50; Stafford v. Janesville, 15 Wis. 475; McDonald v. Falvey, 18 id. 571. In cases arising upon motion, it would seem that the same mode of trial ought to prevail as prevailed at common law in proceedings by the writ of audita querela, and such we find to be the practice. An issue is made, and sent to the jury to be tried, as any other issue of fact. (Lister v. Mundel, 1 Bos. & Pul. 437; Homer et al. v. Homer, 38 Pa. St. 126; Cooley v. Gregory, 16 Wis. 303; Baker v. Ridgeway, 2 Bing. 41; 9 E. Cl. 311; Black on Judgments, supra.) The parties are thereby given their right of trial by jury.” (Harding v. Hawkins, 141 Ill. 572, 584.) If the defendants have in fact made payments to the plaintiff sufficient to satisfy the judgment in the instant case, let them proceed in the proper manner to obtain satisfaction of the judgment.

The order of the municipal court of Chicago, dated December 28,1928, finding the issues against the plaintiff and vacating the judgment by confession, of March 24, 1927, and ordering that “the plaintiff take nothing by this suit,” and that the defendants have and recover from the plaintiff their costs, is reversed.

Reversed.

. Barnes, P. J., and Oridlet, J., concur.


text:
    The People of the State of Illinois, etc., ex rel. John Hirsch et al., Appellees, v. Village of Millstadt et al., Appellants.

      Opinion filed February 1, 1929.
    Rehearing denied February 26, 1929.
    P. K. Johnson, for appellants.
    L. N. Nick Perrin, Jr., for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellees filed in the court below a petition for writ of mandamus against appellants, the Village of Millstadt, its president and board of trustees, its board of local improvements and the individual members of the village board and of the board of local improvements, to compel them to grant a petition filed with the president and board of trustees “for a local improvement to provide adequate sewer facilities for the construction of a sanitary sewer system by special assessment, so that the same would serve the property of petitioners and such other property as is necessarily included. ’ ’

A general and special demurrer was filed to the petition for mandamus, which was overruled, and, appellants electing to abide by their demurrer, judgment was entered awarding the peremptory writ of mandamus in accordance with the prayer of the petition.

The petition is brought in the name of “The People of the State of Illinois, by Hilmar C. Lindauer, State’s Attorney for the County of St. Clair, who sues for the People of the State of Illinois in this behalf,” on the relation of John Hirseh and about 170 relators, persons and corporations, who are described therein as constituting the owners of at least one-half of the property abutting upon certain streets, alleys, parks and public places or portions thereof in said village. It recites in substance that at the regular meeting of the president and board of trustees, held on March 5, 1928, a petition signed by at least 65 per cent of the owners of property upon certain streets, alleys, parks and public places or portions thereof in the Village of Millstadt, asking for the construction of a sanitary sewer system to serve their property and such other property as is necessarily included, was presented to said president and board of trustees, and that a motion made at said meeting by Trustee Bange to grant the petition was lost for want of a second; that the petition was again presented at the meeting of the president and board on April 2, 1928, and by action of the board of trustees was referred to the board of local improvements; that said board of local improvements met on April 4, 1928, and a motion was passed to ignore the petition, two members, Mr. Pistor and Mr. Tegtmeier, voting “aye” and the president, Mr. Baltz, voting “no”; that at a regular meeting of the president and board of trustees, held on May 7, 1928, a minority report was presented by President Baltz of the board of local improvements recommending that the prayer of the petition be granted and necessary steps taken by special assessment to construct the sewer system; that a motion by Trustee Luetzelschwab to accept the minority report was lost for want of a second, and that the majority of the board of local improvements have refused and still refuse to take the action requested by said majority of property owners, and that five of the six members of the board of trustees have indicated that they were opposed to said improvement and would not vote in favor of an ordinance providing for said improvement.

It is averred in the petition for mandamus that by reason of the refusal of the corporate authorities to take the necessary action for the construction of the sanitary sewer system the relators are deprived of their rights under the statute and their properties are deprived of the benefits which would accrue to said properties by reason of said improvement, to all of which said relators are justly and lawfully entitled.

Attached to and made part of the petition for mandamus are copies of the petition for the sewer system, a plat showing the lines of sewers, outlet sewer and septic tank, and a detailed estimate of cost, amounting in the total to $42,600.

The petition for mandamus charges that, under the provisions of section 34 of “An Act Concerning Local Improvements,” approved June 14, 1897, in force July 1, 1897, Cahill’s St. ch. 24, If 159, and amendments thereto, the relators are entitled to compel the village and its officers to construct the sanitary sewer system by special assessment proceedings.

Counsel for appellants say that the principal question involved in this case is whether or not a municipal corporation and its officers can be compelled by mandamus to construct a sanitary sewer system with necessary outlet and disposal plant, upon the several streets of the municipality.

The relators claimed to be property owners constituting the owners of over 50 per cent of the property abutting upon certain streets, alleys and public places, and are seeking to compel the village authorities to construct a sanitary sewer system under the provisions of the Local Improvement Act.

The relief sought by the relators is predicated upon the provisions of section 34 of said Local Improvement Act, which is as follows:

“Whenever the owners of one-half of the property abutting on any street, alley, park or public place, or portion thereof, shall petition for any local improvement thereon, the Board of Local Improvements-in any city, village or town shall take the steps hereinbefore required for hearing thereon, but at such hearing shall consider only the nature of the proposed improvement and the cost thereof, and shall determine, in the manner above provided, the nature of the improvement which it will recommend, and shall thereupon prepare and transmit to the legislative body a draft of an ordinance therefor, together with an estimate of the cost, as above described, and shall recommend the passage thereof, which recommendation shall be prima facie evidence that all the preliminary steps required by law have been taken, and thereupon it shall be the duty of such legislative body to pass an ordinance for the said improvement, and take the necessary steps to have the same carried into effect.” (Section 159, vol. 2, Callaghan’s Stat. 1924, page 1206.)

Section 34, as originally enacted in 1897, is substantially as worded above, with the exception that it then read, “owners of a majority of the property in any one or more contiguous blocks,” which was amended in 1901 by striking out these words and now reads as above quoted from the present statutes.

Section 34, as originally enacted in 1897, was passed upon in the case of Givins v. City of Chicago, 188 Ill. 348, and the Supreme Court held (page 352) as follows :

“Section 34 contains the only provision which makes it the duty of the corporate authorities to adopt an ordinance providing for the improvement recommended by the board, and that is confined to cases where the owners of the greater part of the property' in any one or more contiguous blocks abutting on the street or public place to be improved shall petition for the improvement. That section provides, among other things, that after the hearing before the board, and after it has determined the nature and cost of the improvement, it shall prepare and transmit to the legislative body, — that is, to the corporated authorities, ‘a draft of an ordinance therefor, together with an estimate of the cost, . . . and shall recommend the passage thereof, which recommendation shall be prima facie evidence that all the preliminary steps required by law have been taken; and thereupon it shall be the duty of such legislative body to pass an ordinance for the said improvement, and take the necessary steps to have the same carried into effect. ’ This provision does not make it the duty of the council to pass an ordinance providing for the improvement because the board of local improvements has recommended it, but because, primarily, the owners of the abutting property have petitioned for it.”

Upon the authority of the Qivins case, the Appellate Court for the Third District in the case of People v. City of Champaign, 164 Ill. App. 289, affirmed a mandamus case requiring a city council to pass an ordinance for paving a single street where the same had been petitioned for by a majority of the property owners abutting thereon. The Appellate Court held, after quoting from the Qivins case, as follows:

“It follows from the foregoing views that the word ‘shall’ as used in said section 34, is mandatory and not directory; that it should be given an imperative construction. While the city council is not required to adopt any particular ordinance, and is at liberty, in its discretion, to prescribe how the improvement shall be made, how the cost thereof shall be raised, and the other necessary details, it is bound, when the essential preliminary steps provided by section 34 have been taken, to adopt an ordinance of some nature looking toward the improvement of Prospect avenue in the manner requested by the property owners.”

Counsel for appellants contends- that the language of section 34 is not broad enough to warrant relief by mandamus where the proposed improvement embraces more than one “street,” and, secondly, that property owners can compel only an improvement upon the particular street upon which their property abuts.

The construction urged by counsel is too narrow and restricted, in view of the well-known rules of statutory construction as applied to the use of the plural for the singular, and the interchange ability of the disjunctive “or” and the conjunctive “and,” together with the common interpretation of “any” to mean “every” or “all.”

Applying these customary rules of construction, there is no reason why a majority of the property owners abutting upon one particular street may not join with a majority of abutting property owners upon an adjacent street in.petitioning for the construction of a local improvement for a connected system of sewers.

Other provisions of the Local Improvement Act authorize the improvement of more than one street, and such does not constitute a double improvement. (Walker v. People, 170 Ill. 410; Storrs v. Chicago, 208 Ill. 364.)

The petition for mandamus alleged that the petition addressed to the board, of local improvements for the construction of a sanitary sewer system was signed by at least 65 per cent of the owners of property abutting upon the streets, alleys, parks and public places, or portions thereof, in said village, in which it was desired to construct said sewer.

In order that abutting property owners on different streets, or portions of streets, may join in a common local improvement of their property, it is necessary that they be owners of one-half of the property abutting on their respective streets, or portions of streets, which are sought to be improved.

It is next urged by counsel for appellants that property owners can compel only an improvement upon the street upon which their property abuts, and, in support of this contention, it is urged that the use of the word “thereon,” as used in section 34, limits the right of the property owners to an improvement “on” the particular street upon which the petitioning owners abut. This narrow construction of the statute would deprive property owners of any local improvement, such as a sewer, where it is necessary to build beyond the street in order to have an adequate outlet for such sewer for sanitary purposes.

In the construction of a local improvement under other sections of the Local Improvement Act, the Supreme Court said in City of Elmhurst v. Rohmeyer, 297 Ill. 430, 436:

“The construction of another improvement to aid the purpose of the main improvement in contemplation will not render the improvement double for that reason, as in the case of the construction of a sewer for drainage purposes in a sidewalk improvement, or the establishment of pumping works in connection with a sewerage system in order that the latter may serve its proper purpose, or, as in the case now in hand, the construction of a disposal plant in order that the proposed system may accomplish its proper purpose. City of Staunton v. Bond, 281 Ill. 568; Drexel v. Town of Lake, 127 id. 54.”

The mandatory duties imposed upon public authorities by the provisions of section 34, where a majority of abutting property owners upon each separate public street have petitioned for a common local improvement of their property, ought not to receive such limited and narrow interpretation as would deprive a particular section of a village community of adequate sanitary drainage of their property, pursuant to the provisions of the Local Improvement Act.

Counsel further contends that the special demurrer should have been sustained for the reason that the petition for mandamus seeks to compel the construction of a particular improvement described in the petition. The prayer of the petition is that the respondents be commanded to take the necessary procedure, step by step, to the end that a sanitary sewer system is constructed as outlined by the petition presented and stated therein.

Counsel for appellees admits that the courts do not have the power or authority to direct that the village authorities shall, in the first instance, be compelled to adopt any particular specified system of sewers. In the Givins case, supra, it was held that the corporate authorities have a discretion about the character of tbe improvement, and are bound, when a proper petition for a local improvement is presented, pursuant to the provisions of said section 34 of the Local Improvement Act, to pass an ordinance for such improvement as has been petitioned for by the requisite number of property owners.

In People v. Webb, 256 Ill. 364, it was said on page 373, as follows:

“The writ of mandamus is a summary writ issuing from a court of competent jurisdiction, commanding the officer or body to whom it is addressed to perform some specific duty which the relator is entitled, of right, to have performed. It only issues when the party to whom it is directed is in default in the performance of some act which he has the power and authority to do. Mandamus does not create the duty or confer the power to perform it, but is designed to coerce action along the lines marked out by the law for the person against whom it is directed. It does not issue to compel action in matters about which the officer has a discretion as to whether he will act or not, but it may issue for the purpose of compelling action one way or the other in a matter in which the officer has a discretion as to which, way he will act. It is sometimes said that the writ will not issue to compel the performance of a judicial duty. This statement is not quite accurate. A judicial duty may be enforced where the right is clear and the judicial officer, if he obey the law, has no discretion but must do a particular thing which the law requires of him. A better statement of the law seems to be, that while a judicial officer, or one exercising discretion or authority, may be compelled to act and to proceed to the performance of his duty, he cannot be controlled in his judgment or compelled to exercise his discretion in a particular manner by means of this writ.”

.To the same effect is the case of Brooks v. Hatch, 265 Ill. 346, and cases therein cited.

We are of the opinion that the judgment of the court awarding the peremptory writ of mandamus, in accordance with the prayer of the petition, was too broad and uncertain in view of the ambiguous language used in the prayer of the petition, and that the trial' court should have directed the respondents to comply with the provisions of the statute, without directing any particular specified sewer system to be constructed.

It is also urged that the State’s Attorney was not a proper party to the proceeding, and that, where purely private rights are involved, the writ should run in the name of the People, without State’s Attorney appearing in his official capacity. This proceeding involves both public and private rights, and we are of the opin-* ion that the special demurrer as to this point was, properly overruled.

For the reasons aforesaid, the judgment of the circuit court of St. Clair county is hereby reversed, and the cause remanded to the circuit court to take such further proceedings in said cause as are not inconsistent with the views herein expressed.

Reversed and remanded.


text:
    Joe Waitrovich, Appellee, v. James T. Black, Appellant.

      Opinion filed February 1, 1929.

    Rehearing denied June 3, 1929.
    Moses Pulverman and E. M. Spiller, for appellant; Tilman B. Cantrell, of counsel.
    D. L. Duty and E. N. Bowen, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Appellee brought suit in case to recover damages for personal injuries sustained in an accident while riding as an invited guest in the automobile of defendant. Trial before a jury resulted in a judgment for plaintiff for $1,500. Motions for new trial and in arrest of judgment were overruled and judgment rendered on the verdict, and appellant prosecutes this appeal.

The declaration consists of one count and charges, in substance, that on February 27, 1927, the defendant was driving* a Chevrolet coach automobile in an easterly direction along* the hard road east of Herrin, Illinois, at about ten o ’clock at night; that plaintiff was riding with defendant as an invited guest; that it was the duty of the defendant driving the car to exercise reasonable care and caution for the plaintiff’s safety, the plaintiff being* in the exercise of reasonable care and caution for his own safety. That nevertheless and notwithstanding his said duty in the premises, the defendant drove his said automobile so carelessly, negligently and improperly “along and upon the hardr surfaced public- highway aforesaid in an easterly direction at and up to the- crossing of the Chicago, Burlington and. Quincy Railroad Company’s tracks with said hard-surfaced highway as aforesaid; that said automobile ran with great force and violence into the rear end of a fast freight train then and there traveling in a northerly direction upon and over the crossing of said railway and said hard-surfaced public highway at a point, to wit, one mile east of the City" of Herrin, as aforesaid, as a direct result of which the plaintiff was throwm with great force and violence from said automobile,” etc.

To the declaration defendant filed a plea of not guilty and issue was joined thereon.

The facts involved in this case are not in dispute. Dr. Black, the defendant below, was driving his Chevrolet automobile from Marion to Herrin, in which the plaintiff was his invited guest. On the return trip as they were approaching the Chicago, Burlington & Quincy Railroad crossing about a mile east of Herrin at about 10:30 o’clock at night, they ran into some object, as a result of which the car of Dr. Black was demolished and the plaintiff was injured.

At the time of the accident the speed of the car was shown to be from 15 to 20 miles per hour; that neither Dr. Black, who was driving, nor the plaintiff had any warning of the approach of the train, but each knew they were approaching the railroad track. After the accident the plaintiff was found unconscious upon the right of way between the tracks of the Chicago, Burlington & Quincy Railroad.

The appellant strenuously insists that there is no proof in the record to sustain this judgment; that is, that there is no evidence showing that they collided with the rear end of a freight train as charged in the declaration.

It is not positive and certain as to what the Doctor’s car collided with on the railroad tracks, but it was a question of fact for the jury to decide whether the allegations of the declaration have been proven. We cannot say from an examination of this record that there is not sufficient proof on which the jury would be justified in basing their verdict that the automobile of Doctor Black did collide with the rear end of a freight train, but there are several circumstances that strongly point to this conclusion.

The appellant insists that the plaintiff was guilty of such contributory negligence as to bar recovery in this case, and that he did not exercise ordinary care for his own safety at the time the accident occurred.

The plaintiff was riding as an invited guest in the car of the defendant, and was only bound to use such care and caution for his own safety as a person situated in like circumstances would exercise. (Fredericks v. Chicago Rys. Co., 208 Ill. App. 172.)

The Roads and Bridges Act of Illinois, Cahill’s St. ch. 121, ]f 161, provides as follows: “Upon approaching any highway crossing a railroad at grade, the person controlling the movement of any self-propelled vehicle shall reduce the speed of such vehicle to a rate of speed not [to] exceed ten (10) miles per hour.”

It is admitted that Doctor Black was violating the statute in approaching this crossing. The plaintiff was probably aware of that violation, and because the plaintiff did not remonstrate with Doctor Black that he was driving too fast, or protest or warn the Doctor in some way that they were approaching this crossing, appellant insists the plaintiff is guilty of contributory negligence and this would be a bar to his recovery.

The question of contributory negligence is usually one for the jury and the verdict will not be set aside by the Appellate Court for that reason on review unless it appears that such verdict is against a clear preponderance of the evidence. (Odett v. Chicago Ry. Co., 166 Ill. App. 270; Flynn v. Chicago City Ry. Co., 250 Ill. 460; Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446.)

The evidence shows that it was a very dark and rainy night, with fog and mist obscuring the windshield so that a person sitting in the car could not see through the windshield, except through the place where the windshield wiper was clearing it continuously.

Doctor Black testified that there was some warning of danger as he approached this railroad track but the evidence does not disclose what that warning was. He had a better opportunity of observing any approaching danger in front of him than the plaintiff sitting at his right and back of a cloudy windshield.

A passenger riding as an invited guest in an automobile is only bound to exercise such care as the exigencies of the situation require. (Fredericks v. Chicago Rys. Co., 208 Ill. App. 172.)

From the evidence in this case we cannot say that the plaintiff was not in the exercise of ordinary care for his own safety and whether he did, or failed to do, all that a reasonable man in like circumstances would have done, is a question for the jury to decide. They by their verdict have found that he did not contribute by his negligence to this accident.

At the request of the appellant the court gave to the jury seventeen instructions. Quite a number of these instructions informed the jury that if the plaintiff by his negligence contributed in any degree whatever to the accident that he could not recover in the case.

The appellant insists that the refusal to give his instruction “A” is reversible error. He cites the case of Burns v. Chicago & A. R. Co., 229 Ill. App. 170, to sustain his contention. In the Burns case the contributory negligence of a passenger in an automobile was not involved, at all, but the plaintiff was suing for injuries to herself, and the court in passing upon the negligence of the plaintiff held that the violation of the statute as to the rate of speed that she should drive on approaching a railroad crossing; was prima facie evidence of neglect; that is, that she was driving at a greater rate of speed than was lawful. But the case does not hold that the fact that a passenger is riding with a person operating an automobile at a greater rate of speed than is lawful in approaching a railroad crossing, alone would be prima facie evidence of contributory negligence on the part of the passenger in said car.

On examination of the instructions offered by the defendant and given by the trial judge, it shows that the jury were repeatedly instructed as to the negligence of the plaintiff. Defendant’s instruction No. 7 sets forth that if the plaintiff failed to protest or warn Doctor Black against the manner in which he was driving and operating his automobile, and that such failure on the part of the plaintiff caused or approximately contributed to the cause of the accident, then the plaintiff cannot recover. That is, in substance, the gist' of the refused instruction and it was not reversible error to refuse this instruction.

On examination of the record we are of the opinion that there is sufficient evidence on which to sustain this verdict, and finding no reversible error in the case, the judgment of the city court of the City of Marion is hereby affirmed.

Affirmed.


text:
    Edgar Hamilton, Administrator, etc., et al., Defendants in Error, v. First State Bank of Willow Hill et al., Plaintiffs in Error.

      Opinion filed February 12, 1929.
    Junce C. Smith, for plaintiffs in error.
    W. E. Isley, for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On October 9, 1925, Joshua Barton withdrew from his checking account in the First State Bank of Willow Hill $1,200 and procured a certificate of deposit therefor payable “to the order of myself or Carrie Kern or the survivor of them, on the return of this certificate properly endorsed. ’ ’ On November 20,1925, he withdrew $300 from his checking account and procured another certificate of deposit therefor payable in the same way. Both of these certificates were retained by Mr. Barton until his death and were never in the possession of Carrie Kern.

Mr. Barton died intestate on May 21, 1926. He left his widow, Della Barton, and four children by a prior marriage. Carrie Kern is one of his children. After procuring the two certificates of deposit, Mr. Barton’s checking account was reduced to $123.39. He had a small amount of personal property and his homestead, worth about $600, at the time the certificates were issued. After his death the personal property was converted into cash and -the total amount thereof, including any cash on hand, was $333.87. The widow’s award was fixed at $500 and the funeral expenses amounted to $380. Some other claims existed and were allowed against the estate. The widow’s award, the funeral expenses and other claims amounted in all to $934.98. The widow is still in possession of the homestead. The estate is insolvent and there is nothing to pay the widow’s award unless it can be collected out of the said certificates.

The widow and the administrator of the estate filed a bill against plaintiffs in error to recover the amount of the certificates which were paid to Carrie Kern by the bank after the death of her father. When the widow’s award was fixed in the county court the judgment allowing it placed it in the same position as that of a claim allowed against the estate. The widow’s award, under the statute, is a claim of the second class. Lane v. Thorn, 103 Ill. App. 215; Hodson v. Hodson, 201 Ill. App. 412. She was then in the position of a judgment creditor for the amount of her award. A claim allowed by the probate court against an insolvent estate is a sufficient basis for a creditor’s bill to reach personal property or real estate alleged to have been given away in fraud of creditors. Eads v. Mason, 16 Ill. App. 545; Moore Furniture Co. v. Prussing, 71 Ill. App. 666; McDowell v. Cochran, 11 Ill. 31; Bay v. Cook, 31 Ill. 336.

A husband cannot, by a voluntary conveyance without his wife’s consent, deprive her of her right to the widow’s award, which is a debt against his estate, and she is a creditor to the amount of her award. Blankenship v. Hall, 233 Ill. 116; Deke v. Huenkemeier, 289 Ill. 148. In the Blankenship case the husband had conveyed practically all of his land about 2 years prior to his death. The court held it was proper to make the widow’s award a lien on the real estate conveyed if the personal property was insufficient to pay the same. In the Deice case the bill was filed about 15 years after the husband made a voluntary conveyance of his land and the court held that the land should be subjected to the widow’s award.

In view of the cases above cited we are of the opinion that the widow was entitled to maintain a bill to subject the proceeds of the certificates in question to the payment of her award as fixed by the county court.

Plaintiffs contend that the bill cannot be maintained by the widow and the administrator jointly. They insist that Mr. Barton gave his daughter the amount of the certificates, not as a gift, but as a matter of contract with the right of survivorship. Regardless of the form of the transaction, the net result was to give her $1,500 of his estate without consideration, if their contention is true. The widow insists that what was done was a fraud upon her rights and that the alleged transfer should be set aside.

In Cohen v. Menard, 136 Ill. 130, the executors, the legatee and a creditor of the estate filed a bill to set aside a sale on execution of the lands of the decedent. They contended that the sale was void, etc. The court held that each of the complainants had such an interest in the subject matter as to entitle them to maintain the bill. In McDowell v. Cochran, 11 Ill. 31, a creditor of the deceased filed a bill to set aside a deed to certain land on the ground that the deceased had paid the purchase price and taken the title in the name of his infant child to prevent the complainant from collecting his debt. A demurrer was sustained and the bill dismissed. One of the grounds of the demurrer was that the administratrix was a necessary party. The Supreme Court held that the objection was well taken.

Plaintiffs in error contend that Carrie Kern is entitled to the full amount of the two certificates of deposit. They insist upon the whole amount and nothing less. They are clearly in error so far as the widow’s award is concerned. They do not claim that Carrie Kern became entitled to the amount of the certificates during the lifetime of her father. Their claim is that she is entitled to the same because she survived him. At the time of his death the necessary funeral expenses immediately became a charge against his estate and his estate being insolvent Carrie Kern would not be entitled to receive the amount of these certificates as a gratuity and leave his debts and funeral expenses unpaid.

The certificates in question were never in the possession of Carrie Kern and yet the bank paid to her the amount of the said certificates after the death of her father. Under the circumstances of the case it is wholly immaterial whether it was an attempted gift or whether it was the result of a contractual relation. In either event it was an attempted transfer without consideration and apparently for the purpose of defeating the marital rights of the widow. We are of the opinion that the transaction was not a perfect gift nor was it the creation of a joint tenancy. Plaintiffs concede that there was no gift but insist that there was a joint tenancy with the right of survivorship and they rely upon Illinois Trust & Savings Bank v. Van Vlack, 310 Ill. 185. The contract that existed in that case is lacking in the case at bar. That was within the terms of the statute, while this is not. No reversible error having been pointed out, the decree is affirmed.

Affirmed.