text:
    Dorothy Dunn, Appellant, v. Zephania Dunn, Appellee.
    Gen. No. 30,564.
    1. Husband and wife — motive of parent in causing separation of child and spouse as affecting liability to spouse. A parent is not liable to the spouse of his child for causing their separation if in so doing he acts in good faith and without malice.
    2. Husband and wife — evidence admissible in action against father-in-law of wife for alienation of husband’s affections. In an action for alienation of the affections of plaintiff’s husband, against his father, wherein the chief issues were whether the defendant caused the alienation of the son’s affections, and, if so, whether he acted maliciously or from improper motives, evidence was admissible as part of the res gestae and with reference to either issue, as to conversations between defendant and his son in plaintiff’s absence, as to the contents of an unsigned letter to plaintiff exhibited to defendant and identified by his informant as one from plaintiff’s former husband, as to conversations between plaintiff and said informant, reported to defendant, touching said letter and the plaintiff’s relations with her former husband, and as to defendant’s expressed belief in the revelations made by said letter and his •informant.
    3. Husband- and wife — evidence admissible in action against father-inrlaw of wife for alienation of husband’s affections. Where in an action for alienation of the affections of plaintiff’s husband by his father an issue was made as to the good faith of the defendant in causing the separation, and there was in evidence testimony of conversations between defendant and one who informed him of admissions by plaintiff to said informant of plaintiff’s criminal record in another city prior to her present marriage, it was not error to admit in evidence admissions by plaintiff, drawn from her on cross examination, of her arrest and conviction in such city.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the second division of this court for the first district at the October term,
    1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Rehearing denied June 7, 1926.
    Charles R. Smith, for appellant.
    ■Charles A. Williams and Harry S. Ditchburne, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a suit to- recover damages for the alleged alienation of affections of plaintiff’s husband, Calvert Dunn, by his father, against whom a verdict of not guilty was returned. From a judgment entered thereon plaintiff appeals, claiming error in the court’s rulings on evidence and instructions given and refused.

Appellant married appellee’s son Calvert September 4, 1919. They lived together happily from that time until their separation, August 4, 1920, and as that fact was not controverted plaintiff’s cause was not injured by the rejection of conversations between herself and husband tending to corroborate it, even if they were admissible.

Over objection defendant testified that his son Calvert came to him the latter part of July, 1920 (just after defendant’s return from a trip of several months), and told him that he had received an anonymous letter regarding his wife and occurrences during the year that made him suspicious, and requested his father to send him east on the business of the corporation, of which his father was president and he was secretary, and in the meantime to have his wife shadowed by detectives. On grounds hereinafter stated, we think the testimony was competent.

The request being complied with, plaintiff observed that she was followed and telephoned her husband, who returned the following day, August 3, 1920, when defendant was called to their apartment for an interview with respect to which plaintiff and defendant’s versions differ. He admitted to her employing the detectives, and told her it was done at the instance of her husband. This part of his testimony she did not deny, but did deny his version of the interview to the effect that he told her it was not proper for her to be associating with a former husband (Sam Tilden), and that was the reason Calvert was suspicious of her; that they should “patch this thing up” and leave everybody else, including Tilden, alone, and that he told his son that he could not “go on an anonymous letter,” and told her that there had been nothing serious found out regarding her, and offered her his hand, which she refused.

That night, after her husband had retired, she found in his pocket a letter from defendant to Calvert, written while the latter was away on said trip, directing him, as to business matters and telling him to enjoy himself and “in the meantime forget about Chicago and everybody in it.” On reading it she woke her husband, and the father was again sent for. He arrived about two' o’clock in the morning of August 4, and wanted to know what was the trouble. She testified, and defendant denied, that he then tried to persuade her husband to leave her, and that he said he would double the son’s salary if he would, and would disinherit him if he did not. She said her husband refused to do so, but later in the day came back and told her he was leaving, and she has never seen him since.

Defendant testified that he never offered his son any inducement to leave her, and never heard anything detrimental to her until later that day (August 4) when he received a report from one of the detectives of an interview he had had with a Mrs. Mary York, at her residence, 4508 Oakenwald avenue, after which on the same day he, accompanied by the detective and his son, went to her house, where an interview with her took place first out of the presence of the husband, and immediately afterwards was repeated in his presence.

Both defendant and Mrs. York testified over objection to said interviews, and their version of which' is practically the same. This evidence tends to explain why the husband, who according to plaintiff’s testimony refused to leave her on the father’s request the night before, took his leave of her late in the afternoon of that day.

Mrs. York testified that she had known plaintiff for five or six years; that plaintiff lived at her house in April and May, 1919; that after plaintiff’s marriage to' Calvert Dunn witness received a letter addressed to “Dorothy Tilden” in her care, of which she informed plaintiff and which she read to- her over the telephone; that plaintiff came to her house, read the letter in her presence, and asked her to keep it for her; that there were several letters from the same person addressed to plaintiff, which she came and got, three or four of them after her marriage to Calvert Dunn. Plaintiff told her the letter was from Sam Tilden, and while there called up a certain restaurant on the telephone for “Sam Tilden” and talked with some party about making an appointment. She then testified to the visit of defendant, his son and the detective at her house that afternoon, and of showing and reading said letter to them.

The letter, which was unsigned, and what was said at that interview, were received over objections. The letter, after stating that Tilden wanted plaintiff to help him in his “present trouble,” reads as follows:

“Tour name and mine are known in fact they know almost everything and if we do not arrange things properly, we will both go to jail.
“I told you I would protect you in your marriage even if I went to jail, but that was before you told me that you had no use for your husband and now that I know he interests you only as far as his money goes don’t think I will be fool enough to save you regardless of myself just so you can enjoy his money.
“If you will meet me at once we probably can fix this thing so that nothing will ever be known about it, and we can both go our ways in peace but as long as you exhibit the spirit you do you can be assured I won’t protect you as I did in New York for I no longer have or am entitled to the interest I had in you then. In other words if you refuse to help me and I get in bad because of it I won’t do anything to keep you from getting into the trouble.
“You can arrange to meet me at once and get this thing arranged if you want to or you can let it go but I insist that you return this letter at once.”

The substance of Mrs. York’s testimony as to what plaintiff had told her about herself and Tilden is as follows: That she (plaintiff) stole money from a cafe, and Tilden stole a car, and the two went to Detroit to sell it, then on to New York, where they were caught by detectives; that Tilden put her on the street as a prostitute; that she got caught and was sentenced to a home for 17 days; that she had ‘‘rolled” a man in Detroit and stolen a stick pin and $300 from him, and was again caught, but released on making restitution.

Plaintiff, over objection, which we think was properly overruled, admitted that she married Tilden in May, 1917, and divorced him in September, 1918. In rebuttal she denied receiving the letter and telling Mrs. York what the latter testified to about her past. After making these denials she admitted, over objection, on cross examination that it was true that she was arrested and convicted in New York.

Defendant was asked: ‘ ‘ When you heard what Mrs. York had to say and saw this letter did you believe these statements to be true?” Over objection he answered: “I did,” and that after the interview with Mrs. York and the reading of said letter his son said: “I am finished. That is conclusive proof. I am going to * * * leave today”; that later in the day the son came to him and asked to be sent to Canada, saying he was ashamed and disgusted and couldn’t show his face among his friends. For reasons stated later we think the objections were properly overruled.

Defendant said that he never had any malice toward plaintiff and never advised his son to leave her.

The main facts in issue were whether the alienation of affections was caused by defendant, and, if so, whether he acted maliciously or from improper motives. Upon these points it is claimed the court received irrelevant and immaterial evidence. The evidence objected to consisted mainly of (1) the so-called Tilden letter; (2) the conversations with plaintiff as testified to by Mrs. York; (3) conversations between defendant and his son in plaintiff’s absence; (4) defendant’s expressed belief in what he had heard from Mrs. York, and (5) other matters of minor importance, which, if inadmissible, do not constitute reversible error.

Whether the evidence thus objected to be viewed with reference to what caused the separation or the animus with which the father acted we are of the opinion that it was relevant. Certainly if defendant did not cause the alienation he was not confined in his defense to a mere denial of the charge, or alleged facts on which it was predicated, but might show that the alienation was the result of other influences. And if her testimony to the effect that he persuaded her husband to leave her be taken as true, it was, nevertheless, competent for him to testify to facts that had a legitimate tendency to disclose his animus. All the authorities agree that a parent will not be liable to the spouse of his child for causing their separation if his acts are done in good faith and without malice, and in such a case the material point of inquiry is the animus with which the parent is actuated. As said in Multer v. Knibbs, 193 Mass. 556: “In such an action, the material question is the intent with which the parent acted, rather than the wisdom, or even the justice, of the course which he took.” The court then cites the leading case of Hutcheson v. Peck, 5 Johns. (N. Y.) 196, and numerous other cases, some of which are discussed in a footnote to the cases reported in 9 L. R. A. (N. S.) 322. In some of those eases the parent gave advice for the separation upon information received by him. In the case of Bennett v. Smith, 21 Barb. (N. Y.) 439, it was said the parent would be protected even though the information might subsequently prove to have been unfounded, if he acted in the honest belief as to its truth and from pure motives. And in Oakman v. Belden, 94 Me. 280, the court said: “It may turn out that the parent acted upon mistaken premisés, or upon false information, * * * still, we repeat, if he acts in good faith * * * on reasonable grounds of belief, he is not liable.”

Such being the law it would be strange and unjust if in explanation of the intent with which the person charged with alienation acts he could not state what was the information upon which he acted, and whether or not he believed it to be true. It is not the truth or falsity of the statements made by the witness York that was at issue or relevant, but whether so far as they influenced the advice or interference of defendant he acted in good faith and upon reasonable grounds of belief in them. Said conversations and letter, therefore, were admissible as bearing upon the material point of inquiry in such a case, namely, the animus with which defendant acted. They were also admissible as tending to show that the separation was caused not merely through persuasion or interference of the father but by information obtained by the son from a third party which reflected upon the character and chastity of his wife.

Appellant’s counsel has cited many cases on the subject of hearsay which are entirely inapplicable. “Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay.” Jones, Commentaries on Evidence, vol. 2, sec. 350. The author continues: “That where emotions, feelings or state of mind of third parties are to be proved, the courts often permit their declarations as original evidence, although such statements have many of the elements of hearsay. This has often been illustrated in actions for the alienation of wife’s affections, and in other actions where state of feeling has been relevant.” Many cases are there cited in support of the rule.

We think too that said conversations and what was said by the husband and by the son to or in the presence of each other form a part of the res gestae. The main transaction at issue, namely, the alienation of affections and the inducing cause or causes thereof, is not confined to a particular point of time. “In such cases the declarations, whether verbal or consisting of letters, have been received on the ground that they were a continuous act which showed the intention of the person whose motives were in question.” Jones on Evidence, sec. 347, p. 824. Discussing the wide application of the term, res gestae, in 22 Corpus Juris, § 535, which is defined in 1 Wharton on Evidence, see. 259, as “those circumstances which are the undesignated incidents of a particular litigated act and which are admissible when illustrative of such act” (see also McMahon v. Chicago City R. Co., 239 Ill. 334), it is there said that the res gestae rule is that where the making of a statement in controversy, or the doing of an act, assists in constituting the transaction, or in proving per se a relevant fact, the declaration or act is competent (citing many Illinois eases among others); that such statements do not depend for their effect on the credit or credibility of the declarant, but derive their probative force from their close connection with the occurrence which they accompany and tend to explain, and are admissible as original evidence. Under the rule as thus stated we can have no doubt that all that was said at the interview with Mrs. York not only constituted a part of the res gestae, but it was relevant as tending to show what influenced the action of both defendant and the husband, and under the same rule the declaration of either the husband or the son to the other was also relevant.

The contention that the Tilden letter was inadmissible because its authenticity was not established is a misconception of the purpose for which it was received. It was not introduced as proof of the facts it purported to state, nor as a letter from Tilden except on plaintiff’s admission. Neither was the testimony of Mrs. York’s narrative of what plaintiff told her introduced as proof of the facts themselves. Whether what plaintiff told her or what the letter contained were facts was immaterial if defendant had an honest belief that they were. The letter and interviews were introduced upon the theory that having come to' defendant’s knowledge and being factors which influenced his advice and conduct, they were admissible as original evidence on the theories above stated. If a narrative is actually a part of the res gestae it is admissible. Jones, supra, vol. 2, sec. 346, p. 817.

The testimony of defendant as to his seeking the return of the son to this country after the alienation, was not admissible, but harmless.

The more serious question is the admissibility of plaintiff’s admission, drawn out by cross examination, of her arrest and conviction in New York. Her denial that she had ever told Mrs. York of the same had a tendency to raise the question before the jury whether the conversations between Mrs. York and defendant ever took place or were the result of a conspiracy between them. We are disposed to think that the latitude allowed for determining the credibility of a witness justified the question that drew the admission, which had a tendency to show a reasonable probability of such a conversation between her and Mrs. York which she had put in issue by her denial.

It would extend this opinion to unreasonable length to take up and discuss each point separately as to the instructions given and refused. We have considered them and are of the opinion that as a whole the law of the case was fairly presented. One of the given instructions is objectionable as argumentative, and another alludes unnecessarily to the fact that defendant is not under obligations to settle any claim against the plaintiff for support of the husband, or alimony, etc. We do not think, however, there was reversible error in the giving or refusing of instructions.

Plaintiff does not and cannot well complain that the jury were not justified in finding absence of malice and justification of conduct on the part of defendant. If the evidence complained of was admissible, as we hold, except as to minor and unimportant matters, and the jury’s finding was justified therefrom, no valuable purpose would he subserved by reversing the judgment on mere technical errors in the instructions so long as they were sufficient to fairly state the rights of the respective parties, and were not seriously misleading.

Affirmed.

Gridley and Fitch, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Ethel M. Cann and William A. Cann, Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 30,631.
    1. Injunctions — burden of proof as to exhaustion of legal remedies upon bill to enjoin interference with erection of building. On a bill to enjoin a city and its officers from interfering with the erection of a building in accordance with permits theretofore issued by the building commissioner but subsequently revoked by him upon the ground that the intended use of such building was contrary to the provisions of a zoning ordinance adopted by the city pursuant to Cahill’s St. ch. 24, ¶ 521, et seq., it was incumbent upon complainants to show that they had exhausted their right of appeal from the order revoking their permit to the board of appeal created by such ordinance to have jurisdiction in such matters, as a prerequisite to their right to seek the aid of a court of equity.
    2. Buildings and building Restrictions — jurisdiction of board of appeal under Chicago Zoning Ordinance and Zoning Act. Under the Chicago Zoning Ordinance adopted pursuant to Cahill’s St. ch. 24, ¶ 521, et seq., the board of appeal created by such ordinance In accordance with ¶ 523 of said act has jurisdiction to review an order of the building commissioner revoking a permit for the erection of a building in that city, such revocation having been upon the ground that the intended use of such building was contrary to the provisions of said ordinance.
    3. Injunctions — when hill to enjoin interference with erection of building should he dismissed on ground of existing adequate remedy at law. Where it appears, on a bill to enjoin a city and its officers from interfering with the erection of a building in accordance with permits theretofore issued by the building commissioner but subsequently revoked by him upon the ground that the intended use of such building is contrary to the provisions of a zoning ordinance adopted by the city pursuant to Cahill’s St. ch. 24, ¶ 521, et seq., that complainants have not exhausted their right of appeal from such order of revocation under the terms of the said ordinance and statute, the bill should be dismissed upon the ground that the complainants have an adequate remedy at law.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the second division of this court for the first district at the October term,
    1925.
    Reversed.
    Opinion filed May 25, 1926.
    Francis X. Busch, Corporation Counsel, for appelants; Roy S. Gaskill, Barnet Hodes and W. Arnold Amberg, Assistant Corporation Counsel, of counsel.
    Edwin D. Lawlor, for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellees filed, their bill in equity to restrain and enjoin the City of Chicago, its mayor, superintendent of police, and commissioner of buildings, their servants, agents, etc., from interfering with or preventing the erection of a building on certain premises in said city in accordance with permits theretofore issued by the city therefor. On July 14, 1925, a permanent injunction, in accordance with the bill, was entered after a hearing on the pleadings and master’s report, from which this appeal is taken.

The only assignments of error necessary for us to consider are that complainants had an adequate remedy at law, and that the court was without jurisdiction because under the zoning act and the ordinance of the City of Chicago passed in pursuance thereof, there was created a board of appeals which had exclusive jurisdiction over the matter here in controversy. We need, therefore, refer to only so much of the record as presents these questions.

Complainants’ right to an injunction is predicated upon the right to proceed to erect a building on the premises in question under a permit therefor issued by the commissioner of buildings, April 13, 1923, and renewed or extended on said commissioner’s orders from time to time, the last extension having been granted October 6,1924, for six months from that date. Belying on said permits they, on January 31, 1925, entered into contracts for materials, appliances and machinery for the erection thereof, and began excavation for the foundation walls of said building, which were completed on March 24,1925, when, under orders of the city’s police officials, their workmen were ordered to cease work and leave the premises. On the same day the permits were revoked by the commissioner of buildings. The bill alleges that complainants had incurred large financial obligations by reason of said contracts and had suffered a large loss by reason of the interruption of the work; that the conduct of said officials of the city was unlawful, and that they will suffer great and irreparable loss and have no adequate remedy at law.

The bill sets forth the enactment of the Chicago Zoning Ordinance, a copy of which is attached to the amended bill and made a part thereof, and alleges that under its provisions the buildings that may be erected upon the premises are restricted to dwelling and apartment houses, and that the erection of buildings for commercial purposes is prohibited. It further appears from the bill that the building to- be erected under the permits was one for the display and sale of automobiles on said premises — in other words, a building for commercial purposes.

When such revocation was made the zoning law [Cahill’s St. ch. 24, ¶ 521, et seq.] as it now stands and said Chicago Zoning Ordinance passed in pursuance thereof were in force and effect. Section 3 of said Zoning Act (Cahill’s St. ch. 24, ¶ 523) provides that all ordinances passed under the terms of said act shall be enforced by such officer of the city, village or incorporated town as may be designated by ordinance, and that the city council may provide for the appointment of a board of appeals which “shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this act. ’ ’ The act prescribes the procedure that may be taken before said board and provides as follows:

“The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as in its opinion ought to' be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.”

It further provides that any person aggrieved by any decision of the board of appeals may present to a court of record a petition setting forth that such a decision is illegal, in whole or in part, within 30 days after the filing of the decision in the office of the board, and that upon its presentation the court may allow a writ of certiorari directed to said board of appeals to review such decision, and that on the allowance of the writ the court may on application and due notice grant a restraining order, and that the court may reverse or affirm, wholly or in part, or may modify the decision brought up for review.

The zoning ordinance provides that it shall be enforced by the commissioner of buildings, and creates a board of appeals which, as admitted by complainants’ counsel, was functioning at the time their bill was filed.

The answer to the bill alleges, among other things, that complainants have not at any time appeared before such board to question the decision or determination of the building commissioner in this matter. "While there was no proof of the failure of complainants to resort to the procedure outlined by the statute for an adjustment of their grievances, the statute having prescribed such a course it was incumbent upon complainants to follow it and show that they had done so and had exhausted the legal remedies thus provided before coming into a court of equity. Had complainants pursued the remedy there provided and met with an adverse decision by the board they would still have had the right of petition to bring the matter before a court of record, and upon proper proceedings that court could have granted as full relief, if complainants were entitled to it, as that given by the decree under review.

That the provisions of the act are broad enough to confer upon such board the right to review any prejudicial administrative action of the building commissioner exercised under the zoning ordinance does not seem to be questioned or open to question. Nor is it questioned that his action in revoking such permits, whether rightfully or wrongfully, was in the exercise of his administrative function conferred by such ordinance. While the zoning ordinance did not go into effect until after the original permit was issued it was in force when each of the extensions was granted, and each was granted “upon the express condition that the erection of the building shall conform in all respects to the ordinances of the City of Chicago regulating the construction of buildings in the city limits, and may be revoked at any time upon the violation of any of the provisions of said ordinances.”

The record indicates that the permits were revoked because of alleged violations of the zoning ordinance, which it was the duty of the commissioner of buildings to administer. Whether he did so rightfully or wrongfully is not for us, and was not for the court below, to decide. That was a matter to be determined under a course of procedure pointed out by the statute. In City of Aurora v. Burns, 319 Ill. 84, which was a case involving a zoning ordinance under said zoning act, it was said: “Should any discrimination develop it can be removed by the administrative action of the board of appeals, for which provision is made both by the enabling act and the ordinance. Such action is subject to review by the courts.” And again, in Deynzer v. City of Evanston, 319 Ill. 226, 234, which also involved a zoning ordinance, it was said: “If appellant feels that she has been aggrieved by the classifications of the zoning ordinance her recourse is to the board of appeals. The action of that body is renewable by the courts.”

We think the grievances complained of in the case at bar were of a character contemplated for review in the manner pointed out by the zoning law as heretofore stated. It will be noted that the statute gives the board of appeals great latitude of decision “so that the spirit of the ordinance shall be observed” and “substantial justice done,” and also provides that additional evidence may be heard, if deemed necessary by the court, on a further review under the writ of certiorari. It would seem, therefore, that there is thus afforded a complete and distinct remedy at law for any grievance arising under the administration of a zoning ordinance. It is manifest that the statute recognizes that from the very subject of the enabling act and any ordinance that may be passed under it, “practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance” will naturally be encountered and require such latitude of decision as will be in harmony with the “spirit of the ordinance” and at the same time promote “substantial justice.” Under a statute so broad it can hardly be questioned that complainants had an adequate and complete remedy at law for the determination of their grievances. For that reason alone the bill should not have been entertained.

Contending that the remedy thus provided by the statute is an exclusive one and, therefore, the court had no jurisdiction, appellants cite cases holding that where, in a special statutory proceeding, one form of review is specifically given, all other forms of review are excluded. Allerton v. Hopkins, 160 Ill. 448, 457; Myers v. Commissioners Newcomb Special Drain. Dist., 245 Ill. 140; People v. McGoorty, 270 Ill. 610, 621; Smith-Lohr Coal Min. Co. v. Industrial Board of Illinois, 279 Ill. 88, 91.

But we need not discuss the principle for, complainants having a complete and adequate remedy at law, equity will not grant relief. (Story’s Eq. Juris. Vol. 1, sec. 33,13th Ed.)

This view of the case renders it unnecessary to consider the other points raised on this appeal.

Reversed.

G-ridlet and Fitch, JJ., concur.


text:
    Lena M. Gilmore, Appellee, v. John W. Keogh, Appellant.
    Gen. No. 30,641.
    1. Buildings and building restrictions — change in character and environment of neighborhood as ground for refusing enforcement of restrictive covenants affecting buildings. Restrictive covenants respecting buildings will not be enforced where the property and neighborhood have, since the making of such agreements, so changed in character and environment that either the object of the restrictions could not be accomplished by their enforcement, or by reason of such change it would be inequitable and oppressive to enforce them.
    2. Buildings and building restrictions — hardship upon owner and want of benefit to- complainant as ground for refusing enforcement of covenant. Equity will not enforce a building restriction, as a rule, where to grant the relief would be a great hardship upon the owner and of no benefit to the complainant,
    3. Buildings and building restrictions — assumed public interest in maintenance of private building restriction as basis for enforcement of covenant at suit of former lot owner. Equity will not enforce an agreement among lot owners establishing a building line restriction for such lots, at the suit of a former owner of one of such lots, who was a party to such agreement, against his grantee, upon the theory that the public acquired a vested easement of unobstructed light by such agreement, where it is manifest from the terms of the agreement that the sole moving consideration for such agreement was the benefit thereby expected to accrue to the lot owners themselves.
    4. Buildings and building restrictions — acquisition of property at low price because of restrictive covenant as ground for enforcement of covenant against purchaser Who will profit by its abrogation. Equity will not decree the enforcement of a restrictive covenant affecting a lot, at the suit of a former owner thereof who was a party to such covenant, against a subsequent grantee thereof, upon the ground that it would be inequitable to permit such grantee to acquire the property at a less value because it is subject to the restriction and thereafter have the use or disposition of it at full value because unfettered by such covenant, where it appears that changes in the character and environment of the neighborhood since the establishment of the restriction are responsible for the termination of its benefit to the property.

      Appeal by defendant from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Rehearing denied June 7, 1926.
    Gann, Secord & Stead, for appellant; Loy N. McIntosh and Mack C. Wylie, of counsel.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a suit in equity. Defendant filed a general demurrer to the hill of complaint, which was overruled. He elected to stand by the same and a decree was entered in accordance with the allegations and prayer of the bill declaring an agreement for a building line of property owned by complainant to be void, and canceling and removing the same as a cloud upon the title to complainant’s property.

Complainant’s property consists of two lots at the northeast corner of Sheridan Road and Eastwood Avenue, Chicago, the title to which is vested in complainant by mesne conveyances from defendant. With two other lots north of them they cover the entire frontage on the east side of Sheridan Road between Eastwood Avenue on the south and Leland Avenue on the north. On August 31, 1896, all said lots became the subject of agreement between the then several owners thereof, one of whom was defendant, whereby they agreed for themselves, their respective heirs, administrators, executors and assigns, upon a building line on said lots *15 feet back of the street line. The agreement recites that it would be for their mutual benefit and the benefit of said lots to preserve a clear and unobstructed view up and down said boulevard by the establishment of a uniform building line and by having the buildings erected on said lots “removed from close proximity from the noise and dust of the street.”

It appears from the allegations of the bill that these lots were then in a residential district devoted exclusively to residence purposes, and in most instances to single dwelling houses intended for use and occupation as such by single families.

On April 26, 1921, the titles to said lots were vested respectively in three persons, including complainant, who then entered into an agreement abrogating and setting aside such building line, the agreement reciting that since the agreement of August 31, 1896, the said lands have become suitable and are partly used for business and mercantile purposes. These agreements are set up in the bill, and the bill further alleges that when the agreement of abrogation was entered into the character of Sheridan Road north and south of complainant’s premises, and on the west side of Sheridan Road had “so changed that the same was no longer used exclusively for residence purposes, and particularly not for single dwelling houses intended to be used and occupied by single families, but was used primarily for retail businesses of various kinds, including restaurants, shops, and also for large apartment and hotel buildings housing large numbers of persons, many of which said buildings used for the housing of persons contained stores and shops on the street level or first floor thereof,” and said agreement was entered into for the purpose of permitting the then owners of said premises to make the best and most advantageous use of their respective property as could be made under the existing circumstances.

While the main walls of the buildings on complainant’s lots conform to said building line, the walls of the buildings on the other lots included in said agreements extend to the street line. The bill alleges that no suit has ever been brought by defendant against the owners of said buildings, and he has refused to bring suit against complainant or any other person to enforce such restrictive agreement, hut in order to annoy and vex complainant, claims to be entitled to enforce the same.

On the bill taken as confessed, and on the hearing of testimony sustaining the allegation as to the changed character of the locality the court found that the restrictive agreement is a cloud upon the title of complainant’s premises and tends to depreciate the value and sale thereof, and has been abrogated by the agreement of April 26, 1921.

It is unnecessary to consider the effect of the abrogation agreement if regardless of it the restrictive agreement is a cloud upon the title, which perhaps may be so deemed if it gives color to defendant’s claim of right to enforce it. His demurrer admits he claims such right, and his argument in this court is predicated thereon.

But while appellant urges that the restrictive agreement is binding between him as the original grantor of the property in question and subsequent owners (citing Hays v. St. Paul Methodist Episcopal Church, 196 Ill. 633, and Van Sant v. Rose, 260 Ill. 401), and may be enforced by each grantee against the other (citing Dick v. Goldberg, 295 Ill. 86), and on the other hand appellee urges that appellant has no interest in the enforcement of the restriction, we think neither contention need be discussed, if, as also urged by appellee, a change in the character of the neighborhood has made it impossible to accomplish the purposes sought to be achieved by the restriction, and thereby imposes a burden on the property, depreciating its value without any corresponding benefit.

It is manifest from the facts set forth in the bill that the purposes sought to be accomplished by the restrictive agreement contemplated as a primary consideration that the locality remain what it was then, a purely residential district for single dwelling houses. In such case, construction of the buildings back from the street line afforded the manifest advantages of a more open view up and down the street and a removal further back from noise and dirt. These were the avowed purposes of the agreement. But it appears that now the entire street is changed in character and uses of property along it so as to render the property in question wholly undesirable and unsalable at its real value for single dwelling houses; that all along the street, north and south of the property in question and on the west side of the street, apartment and business buildings have been erected to the street line and many of them devoted to businesses of various kinds, and that the character of the neighborhood has so changed as to frustrate, if not absolutely defeat, the purposes of such restrictive agreement, thus rendering it a burden on the property and such as greatly limits its use and depreciates its value. While the other property included in the agreement has also been built up to the street line in disregard of the restrictions, probably as a result of the abrogation agreement into which appellee entered, yet the change in the character of the street manifestly affected the entire block thus rendering the abrogation agreement advisable.

But we need not discuss the effect of the abrogation agreement, for regardless thereof the cases are numerous recognizing the rule that restrictive covenants will not be enforced where the property and neighborhood have, since the making of the restrictive agreement, so changed in character and environment that either the object of the restrictions could not be accomplished by their enforcement or by reason of such change it would be inequitable and oppressive to enforce them. See Van Sant v. Rose, supra, p. 414, and cases there cited. This well supported rule appellant does not undertake to question but contends that there is neither averment nor proof that the changed conditions were the result of any acts of appellant or his grantees, citing what was said on that subject in Star Brewery Co. v. Primas, 163 Ill. 660. But it was also said in that case:

“Where the change in the condition of the surrounding property is such that a performance of the covenant in the deed would injure the grantee’s property, or make it yield less profit, or make it incapable of yielding any profit, the covenant will not be enforced as being unreasonable and oppressive. * * *” (Citing cases in other jurisdictions.)

It is also said in Ewertsen v. Gerstenberg, 186 Ill. 344, that equity will not, as a rule, enforce a restriction, where to grant the relief would be a great hardship on the owner and of no benefit to the complainant. In the absence of a reversionary interest or an obligation to maintain the restriction, or of the possession or ownership of other property affected by the abrogation of the restriction, it is not apparent how enforcement of the restriction would benefit defendant.

Defendant also urges that in creating the restriction appellant created an easement of unobstructed light not only for his own benefit and his adjacent land owners but for the public at large, and that the public had become entitled to a vested easement in the restricted area of the lots in question, quoting language to that effect from O’Gallagher v. Lockhart, 263 Ill. 489, 495. In Loomis v. Collins, 272 Ill. 221, which is also a case involving a building line restriction, the court said:

“It is fundamental that the parties seeking to enforce such an easement must have some right and interest in its observance by those against whom they seek to enforce it. * * * Restrictions upon the use of property are not favored in law, and where the right to enforce them is doubtful the doubt will be resolved against the restrictions.”' (Citations.)

The court there held that where it is not clear that it was intended that the building line restrictions on lots fronting on one avenue were intended for the benefit of all the lots fronting on the other avenues, the doubt would be resolved against the restrictions. We do not think it can be said that under the circumstances and facts of the present case any enforeible easement in behalf of the public was created. The restriction was manifestly created solely for the benefit of the adjoining lot owners in that block to obtain a better view of the street and greater security to house dwellers from noise and dirt, and not more light for them or the public.

Appellant also cites cases to the effect that it would be inequitable for a party to take property at a less price because it is subject to a restriction, and receive full value from a third party, and the latter be unfettered by the restriction. There are no facts in this case to which that principle is applicable. In fact it may be inferred that the property was rendered more valuable by the restriction as long as it continued to remain purely residence property devoted to use for single dwelling houses.

While it does not appear that defendant has any right of reverter or that he is obligated by any covenant to subsequent owners to maintain such restriction, and it is, at least, doubtful whether he has any interest that would entitle him to the enforcement of the restriction, yet for the reasons stated regarding the changed conditions since the restrictive agreement was entered into we think the decree should be affirmed.

Affirmed.

Gridley and Fitch, JJ., concur.


author: Mr. Justice Fitch

text:
    Severinghaus Printing Company, Appellant, v. William Hale Thompson, Appellee.
    Gen. No. 30,411.
    1. Directing verdict and demurrers to evidence — propriety of direction for defendant. A motion to direct a verdict for defendant should be denied and the cause submitted to the jury if there is in the record any evidence from which, if it stood alone, the jury could find, without acting unreasonably in the eye of the law, that all the material averments of the declaration have been proved.
    2. Directing verdict and demurrers to evidence — consideration of evidence on motion to direct verdict for defendant. On consideration of a motion to direct a verdict for defendant the court may not weigh the evidence, but must have regard only to the evidence most favorable to the plaintiff hearing up.on the issues made by the pleadings.
    3. Assumpsit — sufficiency of evidence to support directed verdict for defendant. Evidence in an .action of assumpsit for services rendered and material furnished, examined in the light most favorable to the plaintiff, held to warrant the implication of a contract on the part of the defendant to pay to plaintiff the reasonable value of such services and material, rendering erroneous the direction of a verdict for defendant.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 25, 1926.
    Salmon O. Levinson, William E. Cloyes and Chester E. Cleveland, for appellant.
    Schuyler, Ettelson & Weinfeld, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment rendered after a directed verdict in favor of the defendant at the close of the plaintiff’s evidence. The only question presented is whether the court erred in directing the verdict.

The suit is in assumpsit, and was first brought against the defendant and 18 other persons, for $150,-000. The original declaration and copy of account sued on were amended, and upon the trial the suit was dismissed as to all the defendants except William Hale Thompson, and a new amended declaration and copy of account sued on were then filed to conform to the proofs that had been taken. This last amended declaration consists of two special counts and the common counts. The first count alleges, in substance, that plaintiff is an Illinois, corporation engaged in the printing business ; that defendant, in the years 1920 to 1923, inclusive, “was engaged in conducting and carrying on political campaigns and other political activities, in doing which he required and used large quantities of campaign literature, handbills, posters, advertisements and the like,” which plaintiff furnished at defendant’s special instance and request and for which defendant promised to pay what the paper and printing and necessary service incident thereto were reasonably worth, which is alleged to be $225,000. The second count contains the same allegations except that it is alleged that defendant agreed to pay certain specified prices for the work done, aggregating the same amount. It was agreed that the pleas theretofore filed should stand to the last amended declaration. Such pleas, so far as applicable, were the general issue and special pleas alleging, in substance, that any campaign literature, handbills, posters and the like which may have been furnished by plaintiff, were not furnished to the defendant, Thompson, but were furnished to the William Hale Thompson Republican Club, an Illinois corporation, which corporation, during the years mentioned, assisted the Republican County Central Committee in conducting political campaigns.

Upon a motion to direct a verdict, the rule is that if there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proved, then the motion should be denied and the cause should be submitted to the jury. Libby, McNeil & Libby v. Cook, 222 Ill. 206. “In passing upon a motion for a peremptory instruction, the question of the preponderance of the evidence does not arise at all.” (Id. 212.)

The evidence tends to prove that during the years mentioned plaintiff furnished a large quantity of printing, paper, cards, letters and other campaign literature, with the incidental service connected therewith, to defendant and others who were members of a voluntary association, called by the witnesses the “William Hale Thompson Republican Organization,” or the “William Hale Thompson Organization,” of which defendant was the recognized head; that such association was formed before he became mayor of Chicago to advance his political fortunes, and after his election, it continued to actively advocate and support the election of ward committeemen who were members of his organization, and of such candidates for public office as were favored by him; that the “copy” for all such campaign literature was prepared by a publicity committee, the active members of which consisted of five persons, one of whom testified that he was appointed by the defendant, and all of whom were active members of his association or organization; that defendant often participated with the publicity committee in the preparation of such copy, and none of it was sent to the plaintiff to be printed unless and until it had been submitted to and approved by defendant; that during most of the campaign following January 1, 1920, the committee did its work in a room in a hotel in Chicago, which was frequently visited by defendant as well as by others who were active in his organization; that after the copy had been examined and approved by defendant, it was either delivered to the plaintiff by the committee or some member thereof, or by other persons to whom it was delivered by the committee ; that in all cases, it was copy which was prepared by such committee and submitted to and approved by defendant; that one of the last items in plaintiff’s account is for one million “pledge cards” for defendant personally, which were apparently printed in anticipation of a campaign by defendant as a candidate for a third term as mayor; that bills for the work done and materials furnished, at cost prices plus a small “overhead,” were rendered from time to time, which were checked over and approved by the same persons who sent the copy to the plaintiff, and payments thereon were made from time to time from a fund which was collected in various ways, mostly by voluntary contributions of different members of defendant’s organization, and that after defendant ceased to be mayor of Chicago, his organization, and the committee which had furnished plaintiff with the copy for the printing in question, ceased to function, leaving unpaid printing bills aggregating over $140,000, not including interest.

Defendant’s counsel say that the evidence shows that the association referred to as the “William Hale Thompson Organization” was “none other than the regular Republican organization of Cook County, which under the law was made up of the Ward Committemen of the thirty-five wards,” who “were also members of the William Hale Thompson Republican Club, which acted as an auxiliary or aid to the Republican County Central Committee,” which, they say, carried on all campaigns of the Republican party, and from this it is argued that either the Republican County Central Committee, or the incorporated William Hale Thompson Republican Club, may be liable to plaintiff, but not the defendant. There is some evidence from which, if it stood alone, such a conclusion might be drawn, but there is also much evidence to the contrary, and upon the motion to direct a verdict the court could not weigh this evidence, but could only consider the evidence favorable to the plaintiff, bearing upon the issues made by the last amended declaration and the pleas thereto.

The theory of the plaintiff’s cause of action is based upon the principle that if a member of a voluntary association, the objects of which do not contemplate profit or loss in a business sense, expressly or impliedly authorizes a transaction in which an indebtedness is incurred by or on behalf of such association, or if he assents to or ratifies the contract on which such a liability is predicated, he is liable as a principal for the indebtedness. This proposition is well supported by authority. Vader v. Ballou, 151 Wis. 577; Robbins Co. v. Cook, 42 S. D.136; Willcox v. Arnold, 162 Mass. 577; Heath v. Goslin, 80 Mo. 310; Dunlap Printing Co. v. Ryan, 275 Pa. 556, 119 Atl. 714; 5 Corpus Juris 1363; 25 R. C. L. 64; 7 A. L. R. 216-218, and note. It is also held that in such cases the liability of the participating, assenting or ratifying members is joint and several, and that it is a question for the jury to determine to whom the credit was given and whether the members authorized or ratified the contract. 5 Corpus Juris 1363. The facts in McCabe v. Goodfellow, 133 N. Y. 89, relied on by defendant’s counsel, are essentially different front the facts proved in this case. There was no proof of assent or ratification by the defendant in that case, which was brought under a special provision of the New York code.

The trial court seemed to think there was no proof of any contract with defendant. We are unable to concur in that view. Assuming — as must be done on a motion for a directed verdict — that the evidence most favorable to plaintiff is true, the law implies a contract between plaintiff and defendant that he will pay the reasonable value of the work, labor and materials furnished by the plaintiff after the orders for the same were approved and ratified by defendant.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Barnes, P. J., and Gbidley, J., concur.


text:
    W. F. Bleck & Company, Appellant, v. Gustave H. Soeffing and Fred Meyer, Defendants. Gustave H. Soeffing, Appellee.
    Gen. No. 30,517.
    1. Partnership — agreement of contractor to erect houses upon lots of another, in consideration of a share of the profits from the sale of the lots when improved, as one of partnership. Where under a written agreement between a contractor and an owner of lots the contractor undertook to build houses upon such lots, with money furnished by the lot owner, it was. provided that the compensation of the contractor for so doing would be a stipulated sum for the sale of each house, payable as and when each was sold, plus one-half of the net proceeds received from the sale of all of the lots, payable after all were sold and the net proceeds ascertained, and further provided that the contract was not one of partnership, that the contractor was to have no interest or title in any of the lots or the improvements placed thereon, and that neither party had authority to bind the other or to pledge his credit without express written consent in each case, held that no partnership relation was intended or created by the parties.
    2. Partnership — sufficiency of evidence to establish partnership relation between owner of lots and contractor erecting houses thereon, as to third person furnishing building material. Evidence in an action to recover the value of materials furnished a contractor, which were used by him in the erection of houses upon lots owned by another pursuant to a contract between such contractor and the lot owner, held not to show any representation by such owner that he was a partner of the contractor in the erection of such houses or the purchase of material for such purpose, or that credit was extended to such contractor upon the faith of such supposed partnership relation.
    3. Partnership — sufficiency of prima facie showing of partnership between owner of lots and contractor erecting houses thereon in consideration of share of net proceeds of enterprise. Notwithstanding Cahill’s St. ch. 106a, ¶ 7, providing that the receipt by a person of a share of the profits of a business shall be prima facie evidence that he is a partner in such business, a partnership is not prima facie established by proof of an agreement between a contractor and an owner of lots wherein the contractor undertook to erect houses upon such' lots, with money furnished by the owner, the contract providing that the compensation of the contractor for so doing should be a stipulated sum for the sale of each house, payable As each was sold, plus one-half of the net proceeds received from the sale of all of the lots, payable after all were sold and the net proceeds ascertained, but further providing that the contractor was to have no interest or title in any of the lots or the improvements placed thereon, that the contract was not one of partnership and that neither party had authority to bind the other or to pledge his credit without express authority in each case.
    4. Partnership — admissibility of testimony as to statements by member of alleged partnership touching existence of relation made in absence of party sought to be charged as partner. In an action against a contractor and an owner of lots to recover the value of building material furnished upon the order of the contractor and used by him in erecting houses upon the lots of .such owner pursuant to a contract between them, it was not error to exclude testimony of a conversation between the contractor and plaintiff occurring in the absence of the lot owner and prior to the delivery of such material, touching the existence of an alleged partnership between the contractor and the lot owner in the business of erecting and selling such houses, the existence of such partnership not having been alleged in the statement of claim and there being no other evidence prima facie establishing it.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Philip J. Finnegan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Herbert A. Schryver, for appellant.
    Clithero, Van Schaick & Stevens, for appellee; Guy Van Schaick, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment in favor of the defendant Gustave H. Soeffing entered upon a directed verdict at the close of the plaintiff’s evidence.

Plaintiff’s evidence tends to prove the following facts: The defendant Soeffing owned a block of 40 vacant lots in Oak Park for which he had paid $20,000 in cash and had given his purchase money mortgage on 30 of the lots for $28,000, the remainder of the purchase price. Fred Meyer was an experienced builder of houses. On March 28,1922, Soeffing and Meyer entered into a written agreement providing, in substance, that Meyer should at once begin the construction of a building on each of the ten unincumbered lots in Soeffing’s block, should furnish “all of the equipment or machinery necessary” therefor, and should “give his entire time and attention to the prosecution of said work”; that Soeffing should “furnish such money, from time to time, as may be necessary,” not exceeding $10,000, which should be deposited in a specified bank and “paid out, from time to time, upon orders for work and material,” as designated by Meyer, who should countersign all checks, but “in the event of his death, his counter-signature shall not be necessary” to enable Soeffing “to withdraw any money so deposited in said account”; that as each building was erected, a building loan thereon of not over $7,000 should be obtained by Meyer, running five years at six per cent interest, and that if Soeffing did not desire to execute the notes and trust deed for such, loan, he should convey the title to some suitable person who would execute the same so as to make the building loan a first lien; that Meyer should have the exclusive sale of the buildings when completed, at prices and terms to be mutually agreed upon, and should be allowed $300 for the sale of each two-flat building and $200 for the sale of each bungalow “when and as sold,” provided that if any building remained unsold for twu months after its completion, Soeffing might then sell the same “for such price and terms as he may elect”; that upon all sales the cash payments should be at once deposited “in said bank in said account,” to the credit of Soeffing, and all second mortgage notes and securities received should be at once delivered to Soeffing “to be held by him for the uses and purposes as hereinafter expressed”; that when the first ten buildings “shall have been completed and sufficient cash realized from the sales thereof,” Soeffing “shall make a payment on the aforesaid purchase money mortgage and procure the release of ten additional lots under the terms thereof,” which should then be improved and sold in like manner, and so on until the Soeffing mortgage was fully paid and all the 40 lots had been improved; that “whenever and as soon as the cash funds are sufficient for the purpose,” Soeffing might “withdraw therefrom and pay to himself all moneys due to him for cash advances,” including the amounts he had paid for the purchase of the land, interest paid by him on the purchase money mortgage, and all taxes, insurance and other expenses advanced by him, “and thereafter the net proceeds of the enterprise shall be divided equally between the parties hereto”; that if Meyer should die before all such advances were repaid, “his death shall ipso facto terminate any claim or demand of any kind or character which he had, or which his personal representative, heirs or assigns might or could have hereunder”; but if Meyer should die after enough money had been realized to repay all of Soeffing’s advances, then the latter should complete the construction of any building that was then in course of construction “above the first floor joists” and sell the same, and when all were sold and Soeffing’s advances had been fully repaid to him and all taxes, insurance, interest and “all other necessary expenses” were paid, “the net proceeds shall.be divided” between him and the legal representative of Meyer.

Sections 12 and, 13 of the contract are as follows:

“12. It is mutually covenanted and agreed that under and by the terms of this contract it is intended only to give to the party of the second part an interest in the net proceeds to be derived from the enterprise, as hereinabove provided, and that the party of the second part has no right, title or interest in or to the said lots, or any or either of them, or the buildings and improvements which may be erected upon them, or any of them, and that any claim or pretense that second party has any such interest in or to said lots, or any or either of them, or any buildings or improvements erected or to be erected thereon, made by him or by anyone for him, or the recording by him, or the procuring to be recorded by him, or by anyone for him, or claiming to' represent him, of this contract or any purported copy thereof, shall forthwith render this contract null and void and operate to' relinquish all claims and demands of every kind or character whatsoever which the said party of the second part, his heirs, executors, administrators or assigns can or may have hereunder, for or on account of any matter or thing whatsoever.

“13. It is expressly agreed that this is not a contract of partnership and that neither party hereto has any power or authority to bind the other or pledge his credit without in each case the written consent of the other party hereto.”

Upon the signing of this agreement, Soeffing deposited $10,000 in the stipulated bank. At the time of such deposit, Meyer was present and told Soeffing he wanted the account made in the name of Fred Meyer & Company, “to distinguish it from his real estate business,” and Soeffing agreed to this. Both then signed a statement with the bank requiring the signatures of both to all checks, and thereafter all checks drawn on that account were signed by both Soeffing and Meyer.

Plaintiff is a manufacturer of millwork, and furnished materials for buildings erected by Meyer on Soeffing’s land. The total price of the material so furnished was “in the neighborhood of $39,000 or $40,-000,” all of which, except $4,522.84, was paid to plaintiff by checks signed as above stated. Plaintiff sued both Soeffing and Meyer for this balance.

The statement of claim alleges, in part, that “defendants, jointly and severally, ordered from the plaintiff the sash and millwork for a large number of houses then being constructed upon the lots of said Gustave H. Soeffing by said Fred Meyer, doing business as Fred Meyer & Co.” Meyer filed no affidavit of merits and for want of such affidavit a default and judgment were entered against him, and it was then ‘ ‘ ordered that cause proceed as to defendant, Gustave H. Soeffing.” Soeffing’s affidavit of merits states that he did not at any time, either individually or jointly with Meyer, order any materials from the plaintiff, and that he never had any dealing with plaintiff at any time.

The first question presented is whether the court erred in directing a verdict. That depends on whether there is any evidence fairly tending to support plaintiff’s claim that Soeffing and Meyer were jointly and severally liable to plaintiff, as partners, for the mill-work plaintiff delivered to Meyer.

Section 6 of the Uniform Partnership Act [Cahill’s St. ch. 106a, ¶ 6] defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Section 7 [Cahill’s St. ch. 106a, ¶ 7] of the same act provides that “in determining whether a partnership exists, these rules shall apply: (1) Except as provided by section 16, persons who are not partners as to each other are not partners as to third persons.” Section 16 [Cahill’s St. ch. 106a, ¶ 16] thus referred to provides: “"When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership.”

Applying these principles to- the facts enumerated above, we are of the opinion that the evidence fails to show any partnership relation between Soeffing and Meyer. By the terms of the written contract signed by both, it was expressly declared that no partnership was intended. It was, in terms, ‘ ‘ expressly agreed that this is riot a contract of partnership” and that neither party has any authority to bind the other, or pledge his credit, “without in each case the written consent of the other party.” No written consent of Soeffing to any pledge of credit to plaintiff was shown or claimed. As between themselves, therefore, it seems clear that no partnership relation was intended or created. Their declared intention was that Meyer should build houses on Soeffing’s land, with money furnished by Soeffing, and that his compensation for so doing should be a stipulated sum for each sale, payable “when and as sold,” plus one-half of the net proceeds received from the sale of all the lots, payable when all the lots were sold and the amount of such net proceeds ascertained. As to third persons, there is no evidence whatever tending to prove that Soeffing ever represented to plaintiff or anyone else, orally or in writing, that he was a partner of Meyer’s, nor is there any evidence of any conduct from which such a representation might be reasonably inferred, nor any evidence that plaintiff gave credit to any such partnership, “on the faith of” any such representations or conduct, or otherwise. The statement of account which was filed as part of plaintiff’s statement of claim shows that the credit was given to- “Fred Meyer & Company,” which, the statement alleges, was the name under which Fred Meyer was doing business. Hence section 16 of the Uniform Partnership Act [Cahill’s St. ch. 106a, ¶ 16] does not apply.

It is urged that the provision of the contract which states that the “net proceeds” shall be divided is sufficient prima facie to show that a partnership existed. Section 7 of the Uniform Partnership Act [Cahill’s St. ch. 106a, ¶ 7] states that the sharing of profits is prima facie evidence of partnership, but that “no such inference shall be- drawn if such profits were received * * * as wages of an employee,” or “as interest on a loan.” In Goacher v. Bates, 280 Ill. 372, 375, the court said:

“In Fougner v. First Nat. Bank of Chicago, 141 Ill. 124, it was held that while sharing in profits is one test as to whether a partnership exists, that test is subject to the qualification that it must be a sharing in the profits as distinguished from making the profits the measure of compensation for services or for the •use of property or money in the business.”

In the present case, the contract between the defendants shows that the division of the net proceeds provided for therein was intended merely as the measure of compensation agreed upon for the services of Meyer in building Soeffing’s houses. Meyer had no title or interest in the houses, as such, but only an interest in the net proceeds of the sales, after all authorized claims were paid. In Fougner v. First Nat. Bank of Chicago, supra, the court quotes with approval the following language from an English ease which, after reviewing the authorities on this subject, said:

“The principle to be collected from them appears to be that a partnership, even as to third parties, is not constituted by the mere' fact of two or more persons participating in or being interested in the net profits of a business, but that the existence of such partnership implies also> the existence of such a relation he- tween such persons as that each of them is a principal and each an agent for the other.”

There is nothing in the evidence in this case tending to prove the existence of such a relation between Soeffing and Meyer. Even if it might be inferred, contrary to the express terms of the contract, that Meyer was the agent of Soeffing in the business of erecting the houses on his property and in making sales of the same, there is certainly nothing in the evidence from which it could possibly be inferred that Soeffing was in any sense or for any purpose an agent of Meyer. The reciprocal relation necessary to constitute a partnership was entirely absent. Parker v. Fergus, 43 Ill. 437; National Surety Co. v. T. B. Townsend Brick & Contracting Co., 176 Ill. 156, 160.

It is also urged that the court erred “in refusing to allow Mr. Bleck to testify as to conversations that he had with Mr. Meyer.” Apparently the purpose of the questions asked of Mr. Bleck by his counsel, to which the court sustained objections, was to show that Meyer said something to Bleck in the absence of Soeffing indicating that he (Meyer) was a partner of Soeffing, and it is argued that this evidence was admissible because plaintiff “had made out a prima facie case of copartnership.” This contention is disposed of, we think, by what has already been said. We think there was no error in the ruling.

The judgment is affirmed.

Affirmed.

Barnes, P. J., and Gridley, J., concur.


text:
    Chicago Surface Lines et al., Appellees, v. George Foster, Appellant.
    Gen. No. 30,576.
    Workmen’s compensation — release by injured employee of third person not under act negligently causing injury, as bar to recovery by employer under act of compensation paid pursuant thereto. Where an employee, while in the course of his employment, without negligence on the part of himself, his employer or a fellow servant, sustains an injury proximately and solely due to the negligence of a third person not an employer and not under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., and the employer, being bound by that Act, pays to the employee the compensation therein provided, such employer has no right of action against such third person to recover the amount of compensation so paid, where the injured employee has released such third person from all liability in respect of such injury in consideration of the payment by such third person of the employee’s hospital and doctor bills and a sum greatly in excess of the compensation paid by the employer.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    Rehearing denied June 7, 1926.
    Max F. Allaben, for appellant; George W. Lennon, of counsel.
    Busby, Weber, Miller & Donovan, for appellees; John R. Guilliams, Frank L. Kriete and Hubert A. Smith, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiffs paid Elmer Beilfuss, one of their conductors, $392 as the amount due him under the provisions of the Workmen’s. Compensation Act [Cahill’s St. ch. 48, ¶ 201 et seq.] for compensation for personal injuries, sustained by him while in their employ. Then plaintiffs sued defendant, whose negligence caused the accident, to recover the amount so paid. The case was submitted to the court for trial without a jury and was heard upon a stipulation of facts. From a judgment in plaintiffs’ favor, defendant appeals.

Plaintiffs’ statement of claim is, in substance, as follows: That on September 24, 1923, plaintiffs were organized for the purpose of operating street railways, and were in possession of, owned and operated a street railway system with tracks in various streets in Chicago, over which they operated street cars for the carriage of passengers for hire; that Elmer Beilfuss was in their employ as a conductor on one of their cars running on North Avenue; that as said car was about to be driven into the car barn on that street, Beilfuss, in the course of his duties, got off the car for the purpose of throwing a switch to enable the car to run from the track on North Avenue into the bam; that after throwing the switch, he was about to re-enter the car to accompany the same into the car barn, and was in the exercise of due care and caution for his own safety, when defendant drove his automobile along North Avenue in such a negligent and reckless manner as to run against Beilfuss, “seriously injuring him and rendering him unable to attend to and perform his labor and work for these plaintiffs for a period of twenty-eight weeks”; that plaintiffs are bound by the Workmen’s Compensation Act and that the conductor was also operating under that Act; that he notified plaintiffs of the injury and demanded compensation, and “because of said injuries and because of the provisions of said Workmen’s Compensation Act, these plaintiffs were obliged to and did pay Beilfuss the sum of $14 a week for a period of twenty-eight weeks, during which period he was disabled from performing any labor”; that the accident and resulting injury were not caused by any negligence on the part of Beilfuss or of the plaintiffs or any of their servants; “wherefore, by reason of the payment of said sum of money under and by virtue of the terms and provisions of said Workmen’s Compensation Act, and because of said negligence of said defendant,” plaintiffs have been damaged in the sum of $392, the payment of which has been demanded of defendant and refused.

It was stipulated that plaintiffs and the conductor were both acting under and bound by the provisions of the Compensation Act, but that defendant is not an employer and is not under the act; that Beilfuss sustained injuries as the result of an accident which arose out of and in the course of his employment; that at the time of his injury he was exercising due care for his own safety and that his employers and fellow servants were not negligent, but that the injury was caused by defendant’s negligence; that as a result of the injuries sustained by him, Beilfuss “was unable to work for a period of twenty-eight weeks”; that defendant paid Beilfuss the sum of $1,500 and paid his hospital and doctor’s bills and in consideration thereof received from Beilfuss a release from all liability on account of said accident, and that after due notice and demand upon the plaintiffs by Beilfuss plaintiffs paid him $392, “which was the amount due him under and by virtue of the terms and provisions of said Workmen’s Compensation Act, provided nothing had been paid to said Beilfuss by the defendant.”

Treating the suit as one arising out of the Workmen’s Compensation Act, defendant contends that the only legal cause of action against defendant so stated and proved was extinguished when defendant paid Beilfuss more than $392 in settlement of all liability to him for injuries sustained by defendant’s negligence, leaving plaintiffs with no cause of action against defendant, but with a cause of action against Beilfuss, under section 29 of the Compensation Act [Cahill’s St. ch. 48, ¶ 229], for $392 of the amount he had received in the settlement.

Plaintiffs meet this contention of the defendant by saying that defendant has misconceived the nature of the plaintiffs’ suit; that plaintiffs are not attempting to recover under section 29 of the Compensation Act, and that “in their statement of claim the plaintiffs made no attempt to state, or by the stipulation of facts, to prove, a case under section 29”; that regardless of that section they have a right of action at common law against defendant “for damages they have suffered by reason of the compensation they were compelled to pay the employee injured through the sole negligence of the defendant,” and that this suit was brought upon that theory. They argue that their suit is based upon two well established principles of the common law: First, the principle that a master has a right of action against a third party for any loss he may have sustained by reason of such third party negligently injuring his servant, and, second, the principle that a person who, without fault on his part, has been compelled to pay damages occasioned by the negligence of another, is entitled to indemnity from the latter. 6

The nature and purpose of a suit of the fourth class in the municipal court is to be found within the four corners of the document filed by the plaintiffs as their statement of claim. The statement of claim in this case states a cause of action under the second clause of section 29 of the Compensation Act, and we think defendant’s counsel was fully justified in assuming therefrom that the suit was based upon that statute. However, the allegations in the statement of claim are also sufficient, perhaps, under a liberal construction of the same, and with all reasonable intendments in their favor, as a statement of a cause of action on the theory now suggested by their counsel. Assuming this to be true, and also conceding that the common law principles relied on by defendant are well established, the question is presented whether such common law rights of action were available to the plaintiffs after defendant paid to Beilfuss, in full settlement and release of all liability on account of the accident, several times the amount that plaintiffs paid him as compensation for his injury.

The second clause of section 29 of the Compensation Act, as construed in Gones v. Fisher, 286 Ill. 606, and O’Brien v. Chicago City Ry. Co., 305 Ill. 244, recognizes and preserves the right of an injured employee, when both he and his employer are bound by the act and are free from negligence, to maintain a suit for damages against a third person negligently causing the injury, who is not bound by the act, and also provides, in effect, that in such case the employer is entitled to indemnification “from the proceeds of such cause of action” (as stated in the O’Brien case, supra, p. 256), or “out of the amount recovered” (as stated in Gones v. Fisher, supra, p. 612), for the compensation he is required by the act to pay, and that in such cases, the suit against the negligent third party may be prosecuted in the name of either the employee or the employer, but “in either case, for the benefit of both, in accordance with their respective rights.” O’Brien v. Chicago City Ry. Co., supra, p. 256. The same section further provides that if a settlement is made by the injured employee with such third person, “either with or without-suit,” then “from the amount received by such employee * * * there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee. ’ ’ In the case last cited, it was held (p. 263) that by these provisions of section 29 an employer who is free from negligence is given a “means of indemnification” in the nature of a lien upon the claim which the injured person has against the person whose negligence caused the injury. There is but one legal cause of action, however, in such case, against the negligent party, and a suit for damages against the latter in the name of the employee and judgment therein would be a bar to another suit brought by the employer for the same damages. Gones v. Fisher, supra, p. 613.

When, therefore, the conductor, Beilfuss, received from the defendant $1,500 in settlement and release of all liability on account of the accident (presumably without suit, for the stipulation is silent as to any suit having been brought), section 29 of the Compensation Act made it his duty to pay over to plaintiffs out of that sum “the amount of compensation paid or to be paid” by plaintiffs under the act for the same injury. If plaintiffs did not collect that amount from him at that time, it was no fault of the defendant, so far as appears from the stipulation. If Beilfuss still retains it, it does not belong to him and he is liable to plaintiffs for it as for money had and received for their use. The statute not only permits a suit to be brought by the injured employee in such cases, but also recognizes his right to make a settlement of his cause of action for negligence and directs him to pay over, or pay back, to Ms employer, out of the amount “received by him” in such settlement, the compensation paid, or to be paid, to him by his employer. Under the authorities mentioned, if either the plaintiffs or Beilfuss had brought a suit under the statute against defendant, and had obtained and collected a judgment for $1,500, such suit and judgment, and the proceeds thereof, would have been “for the benefit of both” Beilfuss and plaintiffs, “in accordance with their respective rights,” and out of such proceeds plaintiffs would have been reimbursed for the amount sought to be recovered in this case. If that had been done, the common law rights of action now relied on by plaintiffs would have been extinguished and discharged by the satisfaction of the judgment. Precisely the same effect must be given, we think, to the settlement that was made by Beilfuss. By force of the statute, such settlement was for the benefit of both Beilfuss and plaintiffs, and by such settlement, all claims of both against defendant on account of the injury to Beilfuss were as fully paid and satisfied as if defendant had paid and satisfied a judgment obtained against bfm for damages for the same injury. To permit the plaintiffs to recover after such a settlement would be not only to disregard the plain language and manifest purpose of the statute, but, in effect, would compel defendant to pay twice for the same injury. It is no answer to* this to say that at common law a master who had lost the services of a servant by the carelessness of another, or had been obliged to expend money on that account, had a cause of action against the negligent party irrespective of the servant’s cause of action, for the reason that no such loss or expenditure is either alleged or proved in this case, where the only loss, expense or damage to the master is the amount paid under the Compensation Act which was payable regardless of any question of negligence. On the other hand, no possible injury or injustice can come to anyone from holding, as we do, that under the stipulated facts in this case the settlement was a bar to the present action.

For the reasons stated, the judgment is reversed.

Reversed.

Barnes, P. J., and Gridley, J., concur.


text:
    Weronika Lewandowski, Appellee, v. Western & Southern Life Insurance Company, Appellant.
    Gen. No. 30,644.
    1. Insurance — proof of sound health of insured on date of delivery of life policy as prerequisite to recovery in view of conditions thereof. In an action upon a policy of life insurance stipulating that no liability should attach thereunder “unless on the date and delivery thereof the insured is alive and well,” it was incumbent upon plaintiff affirmatively to show that such condition precedent to liability had been met.
    2. Insurance — sufficiency of evidence to support direction of verdict for insurer- in action on life policy conditioning liability upon sound health of insured on dote of delivery. Where in an action upon a policy of life insurance stipulating that no liability should attach thereunder unless the insured was alive and in sound health on the date and delivery of the policy, defendant’s motion for a directed verdict should have been granted where the undisputed evidence showed that at the time of the issuance and delivery of the policy the insured was suffering 'from pulmonary tuberculosis and under treatment therefor at a sanitarium, and that his death resulted from that disease a few months thereafter.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 25, 1926.
    Hoyne, O’Connor & Rubinkam, for appellant.
    Adamowski & Danaher, for appellee; Steve Adamowski and James J. Danaher, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment in plaintiff’s favor for $236 rendered upon the verdict of a jury in an action on a policy insuring the life of plaintiff’s son Edward. The policy was issued on plaintiff’s application, is dated June 26, 1922, and in consideration of weekly payments of twenty cents each, provides for the payment of $472 payable to plaintiff on the death of her son. No medical examination of the insured was made by defendant and the policy does not in terms make plaintiff’s application a part of the policy or refer to it in any way. On the contrary, the policy provides that “all the conditions and agreements contained on this, the preceding and succeeding pages hereof, constitute the entire contract between the company and the insured, and the holder or claimant thereof.” It also provides: “No obligation is assumed by the company unless on the date and delivery thereof the insured is alive and in sound health. ’ ’

The evidence shows, without dispute, that before and at the time this policy was issued, insured was not in sound health, but was suffering from pulmonary tuberculosis. Two months before the policy was issued, on the recommendation of a physician who testified that his disease was then “far advanced,” he was admitted to the Cook County Tuberculosis Hospital at Oak Forest, where he remained until about August 19, 1922. It was while he was in that institution that the insurance policy was issued to the plaintiff on her application. She testified that she knew he was sick and was in Oak Forest at that time and had been sent there by a doctor who was consulted in April, 1922, but she also testified that the doctor told her that her son “just needed rest and fresh air.” From Oak Forest he went to the Municipal Tuberculosis Sanitarium, where he died October 27, 1922.

Upon the trial, the plaintiff introduced the policy of insurance and rested. Thereupon defendant moved for -an instructed verdict in its favor, but the motion was denied. This ruling was error. The stipulation in the policy to the effect that the insurance company assumed no obligation unless the insured was in sound health at the time of the delivery of the policy was a condition precedent, which it was incumbent upon the plaintiff to affirmatively prove in order to recover on the policy, and on the failure of plaintiff to prove that her son was in sound health when the policy was delivered, defendant was entitled to an instruction to find for the defendant. Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83; Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

It is also contended that plaintiff was guilty of fraud in procuring the policy under such circumstances, but, as what we have said requires a new trial in any event, it will be unnecessary to consider this contention.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Barnes, P. J., and Gbidley, J., concur.