text:
    Mary A. McNulty, Appellant, v. Hotel Sherman Company, Appellee.
    Gen. No. 38,051.
    Heard in the second division of this court for the first district at the February term, 1935.
    Opinion filed May 24, 1935.
    Royal W. Irwin, of Chicago, for appellant.
    Hamer & Campbell, of Chicago, for appellee; Chester D. Kern, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

This is an appeal from an order of the superior court granting a new trial. Plaintiff brought an action in tort to recover damages for personal injuries sustained by reason of a fall in the lobby of defendant’s hotel, resulting in a compound fracture of her right wrist. Trial was had by jury, resulting in a verdict for plaintiff in the sum of $4,000. Thereafter, defendant entered a motion in writing for judgment notwithstanding the verdict, which was overruled, and also a motion for a new trial specifying 12 separate grounds, which the court allowed after plaintiff had in open court declined to remit the sum of $2,000 from the amount of the verdict, as requested by the court. Having first obtained leave to prosecute this appeal plaintiff seeks to set aside the order granting a new trial and asks that judgment be here entered on the verdict. The order awarding defendant a new trial and from which this appeal is prosecuted is as follows :

1 ‘ This cause coming on to be heard upon the motion of the defendant for a new trial in this cause, and the court now requests plaintiff to remit the sum of two thousand dollars from the amount of the verdict and judgment entered in this cause and that if the plaintiff shall remit said sum as requested the court will deny a new trial to the defendant, and the plaintiff having-declined in open court to remit said sum of two thousand dollars from the amount of the verdict of the jury, the defendant’s motion for a new trial in this cause is sustained and a new trial is awarded and the judgment heretofore entered herein and on the second day of October, A. D. 1934, is vacated and set aside and held for naught, and this cause is set for trial on January 21, 1935, at the head of the call for that day. ’ ’

tinder the authorization of section 3 of the Civil Practice Act (Cahill’s Ill. Rev. St. 1933, ch. 110, U131) a tentative schedule of rules of court was prepared and submitted. Subsections 1 and 2 (c) of this schedule, Cahill’s St. ch. 110, 240, contained the following provisions:

(Sub-section 1) “Each appellee, and each co-party who did not join as appellant, shall within ten days after service of notice of appeal, serve a notice of appearance upon each party or attorney or firm of attorneys who signed the notice of appeal and file a copy thereof in the lower court. ’ ’
(Sub-section 2c) “If the appellee desires to appeal from all or any part of the judgment, decision, order or decree, he shall so indicate in his notice of appearance, under a division of such notice entitled ‘ Cross-appeal, ’ which division shall be prepared in the same form required for appellant’s notice of appeal, with a specification, except in appeals from the Appellate to the Supreme Court, of any additional items to be incorporated in the record on appeal.”

When the Supreme Court adopted its rules of court (355 Ill. 34, 35) thus superseding the schedule originally prepared, its rule 35 (1) incorporated subsection 2 (c), using the identical language, and added the following:

(Sub-section 4) “Wherever the notice of appearance shall indicate an intention to prosecute a cross-appeal, or a separate appeal by a co-party, such notice of appearance, in addition to being served upon each party or attorney or firm of attorneys who signed the notice of appeal, shall also be served upon any other person or officer entitled by law to a notice of appeal.”

Defendant complied with the statutory provision requiring that notice of appearance be served and filed, but it failed to include in the notice or to indicate therein its intention to prosecute a cross appeal. It is urged that in this state of the record the only question open to review is whether the trial court erred in requiring a remittitur, and that after examining the question of damages to determine whether or not the verdict was excessive, we should either enter judgment here for the amount awarded plaintiff by the jury or remand the cause and limit the new trial to the assessment of damages. In support of her position plaintiff argues that the trial court indicated its willingness to enter judgment in her favor if she would consent to a remittitur, and by so doing ruled that plaintiff had made out a case which was supported by the evidence and that no errors had intervened in the trial; that defendant was satisfied with that ruling, and took no exceptions thereto; that in order to have preserved any objection to the rulings on evidence or other matters occurring during the trial defendant, after being notified of the appeal in accordance with the provisions of the statute, should have filed notice of a cross appeal, and having failed so to do is barred from raising any question that might affect the validity of the court’s order other than the excessiveness of the damages.

The Civil Practice Act being of recent enactment, the novel question presented is whether defendant’s failure to prosecute a cross appeal precludes it from urging every ground and exception in the record entitling it to a new trial. The New York and New Jersey authorities cited by defendant hold, under similar circumstances, that on appeal the reviewing court is not confined to the ground upon which the decision below is based, but will consider every reason urged by the prevailing party which would entitle him to a new trial. (Waldron v. City of Utica, 238 N. Y. S. 401; Logan v. Guggenheim, 230 N. Y. 19; City of Buffalo v. DeBon, 249 N. Y. S. 586; Wolfert v. Edison, 169 N. Y. S. 484; Queen v. Jennings, 93 N. J. L. 353, 108 Atl. 379; Sussman v. Yellow Taxi Cab Co., 7 N. J. Misc. 325,145 Atl. 470.) It does not appear from these decisions, however, nor from defendant’s brief, whether the rules of court of these two States contain provisions similar to ours relating to cross appeals. McCaslrill’s Illinois Civil Practice Act, annotated, prepared under the direction of the Illinois State Bar Association, states (p. 401) that section 112 of the tentative schedule of rules of court (which as heretofore stated was superseded by rule 35 of the rules of the Supreme Court) takes the place of section 107 of the Practice Act of 1907, dealing with cross errors, and that instead of assigning cross errors as under the former act the appellee, by subsection 2 (c) of section 112 takes a cross appeal. ,

The circumstances under which the assignment of cross error was necessary under the Act of 1907 is discussed at length in the opinion by Mr. Justice Cartwright in Pelouze v. Slaughter, 241 Ill. 215, wherein (beginning on p. 224) he reviewed the development of the function and purposes of cross errors, as follows:

“The purpose of the statutory assignment of cross-errors is to enable the court to finally decide the controversy without necessitating a separate appeal or writ of error. Formerly there was no right to assign cross-errors, but any party deeming himself aggrieved by a judgment or decree was compelled to take an appeal or sue out a writ of error. An appellee or defendant in error was not allowed to assign cross-errors except with the consent of the appellant or the plaintiff in error. (Smith v. Sackett, 15 Ill. 528.) In Carter v. Moses, 40 Ill. 55, the appellee asked leave to assign cross-errors, but the court said that in a chancery case an appeal brought the whole case before the court and it would be considered upon its merits without the assignment of cross-errors. In any case a party was permitted to prosecute a writ of error although the opposite party had appealed from the same judgment, and one of the proceedings did not affect the other but both might progress at the same time. (Harding v. Larkin, 41 Ill. 413.) In 1869 an act was passed which provided that the appellee or defendant in error should have the right to assign cross-errors, and the court should proceed in the disposition of the case in the same manner as when cross-errors were assigned by consent. (Laws of 1869, p. 163.) Afterward, in Page v. People, 99 Ill. 418, where the question arose on demurrer to a plea in bar of the writ of error, it was held that it was optional with an appellee or defendant in error to assign cross-errors or prosecute an appeal or writ of error separate and independent of that of his adversary; that if a party assigned cross-errors he could not afterward prosecute a writ of error upon the same record, but if he did not assign cross-errors he was not barred from prosecuting a writ of error. In general, the cases holding that a party can only protect his right by assigning cross-errors have been where the decree or judgment did not give the party all the relief that he claimed or gave to his adversary more than he was considered entitled to, and where the appellee or defendant in error might have taken an appeal or prosecuted a writ of error. Examples will be found in Johnston v. Maples, 49 Ill. 101, where the appellees claimed a larger amount than was awarded them by the decree. Pool v. Decker, 92 Ill. 501, where the appellees, without assigning cross-errors, asked the court to review a finding that there was nothing due on account of rents when an allowance ought to have been made on that account. Gage v. Davis, 129 Ill. 236, where the appellee insisted that the amount required to be paid as a condition to vacating the deeds was too large. Haigh v. Carroll, 209 Ill. 576, where the appellee sought to question allowances to the receiver. Rodman v. Quick, 211 Ill. 546, in which case the appellees argued that the court ought not to have given the right of redemption; and Penn Plate Glass Co. v. Rice Co., 216 Ill. 567, and Street v. Thompson, 229 id. 613, where the appellees attempted to question the refusal of the trial court to allow interest. Other cases of the same kind are Hurd v. Ascherman, 117 Ill. 501; Hollingsworth v. Koon, id. 511, and Vose v. Strong, 144 id. 108. If a party has not obtained all that he deems himself entitled to he may appeal, but not where he gets all that he claims. (Gray v. Jones, 178 Ill. 169; 2 Ency. of Pl. & Pr. 157.) The statutory assignment of cross-errors, like the assignment of errors, is the pleading of the party and sets forth the grounds upon which the appellee or defendant in error seeks a reversal of the judgment or decree. The natural conclusion would be that such an assignment is only required where a party seeks a reversal of a decree or judgment and might have appealed or sued out a writ of error.”

Defendant, having prevailed in the lower court and not being in any way aggrieved by the court’s order or any part thereof, could not have appealed or sued out a writ of error, and, therefore, by analogy, would not have been required to assign cross errors under the Act of 1907. Since rule 35 which supersedes section 112 of tentative schedule of rules relating to cross appeals takes the place of section 107 of the former act relating to cross errors, defendant is not required to prosecute a cross appeal from a motion granting a new trial.

When an appeal from such an order is allowed it will be considered the same as any other appeal under the provisions of the Civil Practice Act. The reason stated in the order for granting a new trial is not controlling, and when the whole record is brought up on appeal defendant should be allowed to urge any ground upon which it relied in the lower court to sustain the order or judgment. Accordingly, we hold that defendant herein may here urge every ground and exception preserved in the record entitling it to a new trial.

Plaintiff refuses to meet any of the other points raised by defendant in support of the order granting a new trial, but relies solely on defendant’s failure to prosecute a cross appeal, and discusses only the injuries sustained by plaintiff and the amount of the verdict. In view of plaintiff’s attitude, we deem it unnecessary to pass upon the merits of the many grounds urged by defendant in support of the trial court’s action in granting a new trial. The order of the circuit court is affirmed.

Order of circuit court granting a new trial affirmed.

Scanlan and Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    James Conlan, Complainant, v. James B. Sullivan et al., Defendants. James Conlan and Walter J. Sullivan, Appellants. Frank A. O’Donnell, Appellee.
    Gen. No. 37,598.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.

      Altheimer, Mayer, Woods & Smith, of Chicago, for appellants; Gideon S. Thompson and John P. Mc-Goorty, Jr., both of Chicago, of counsel.
    Francis E. Croarkin and Edward McTiernan, both of Chicago, for appellee; Frank A. O’Donnell, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

James Conlan, as surviving trustee under the last will and testament of Charles H. Sullivan, deceased, filed a bill praying for a construction of certain paragraphs of the will and the direction of the court in reference to the same.

The sole question before us relates to the construction of paragraph 34 of the will, which is as follows:

“Paragraph Thirty-Four: I hereby request my executors and trustees or such person or persons who may serve as such executors and trustees or either executor or trustee to employ my friend, Frank A. O’Donnell, as their attorney in the administration of my estate, and to pay him such compensation as may be proper for such services or advice as he may be requested to render, and shall render in the administration of my estate.”

The bill alleges that the executors of the estate employed defendant Frank A. O’Donnell (appellee) as their attorney in the settlement of the estate in the probate court and paid him for said services; that the trustees, under the will, after they entered upon their duties, did not employ appellee as their attorney; that they, in the exercise of their best judgment and discretion and acting for what they believed to be the best interests of the trust estate, employed other attorneys; that their right to dispense with his services and to employ other attorneys has been challenged by appellee, who claims that under the provisions of paragraph 34 the trustees were obligated and bound to employ him as attorney and legal adviser during the entire existence of the trust estate; that complainant is advised that said provisions are not mandatory but are merely an expression of the desire of the testator; that the duties and obligations of the trustees in the management and administration of the trust estate involve the handling of property of great value, and as the obligation and duty to faithfully and wisely administer the trust rests solely upon the trustees it is necessary that they have the right to employ such counsel as in their judgment and discretion seem best qualified to advise and direct them. The bill prays that the court decree that paragraph 34 is not mandatory nor binding upon them, that it is the duty of the trustees to employ such counsel as in their best judgment and discretion shall be for the best interests of the trust estate, and that appellee has no right or claim under the provisions of the will against the trust estate nor against the trustees. The pertinent part of appellee’s answer prays that paragraph 34 be construed to mean that he is the duly appointed attorney and legal adviser for the executors and trustees, and their successors in office, and that said paragraph is a direction and command to the executors and their successors in office to retain him as attorney and legal adviser in all matters relating to the administration of the estate until the final distribution thereof or until he may be discharged by the order of court, and that the trustees have no legal right or authority to refuse to employ him as attorney and legal adviser in the administration of said estate or to employ other counsel in lieu of appellee, and further prays that the trustees may be ordered and directed to comply with the provisions of paragraph 34, “and that such employment continue uninterrupted from and after the death of decedent.”

The testator, Charles H. Sullivan, died October 9, 1929. By his will he devised to James Conlan (complainant) and Dennis J. O’Brien, trustees, the residue of his large estate in trust for certain purposes after the estate had been closed in the probate court. The will was probated on October 28, 1929, and letters of administration issued to Conlan and O’Brien, executors. When the estate was closed in the probate- court on December 22, 1930, the assets were turned over to Conlan and O’Brien as trustees.and they administered the trust estate until January 17, 1932, on which date O’Brien died, and thereafter Conlan administered the estate as sole surviving trustee. Complainant, by amendment to his bill, suggested the appointment of someone of the beneficiaries under the will to act as cotrustee with him, and by the final decree Walter J. Sullivan was appointed cotrustee. He joins with Conlan in this appeal.

The facts were stipulated. The final decree entered construed paragraph 34 as follows :

“That the language contained in said paragraph Thirty-four constitutes a command to the Executors and Trustees designated in said will and their successors in office to employ said Frank A. O’Donnell as their attorney during the administration of said Estate, and to pay him such compensation as might be proper for such services or advice as he might be requested to render and should render in the administration of said Estate and that by the terms of said Paragraph Thirty-Four a trust was created in favor of Frank A. O’Donnell; the Court further finds that the intention of the Testator is clear that the Executors and Trustees named in said Last Will and Testament, and their Successors in Trust, should employ the said Frank A. O’Donnell as their attorney and adviser throughout the administration of said Estate until the trust estate has been fully and completely administered and that they had at no time any right, power or authority to refuse or neglect to so employ him; that the said Frank A. 0 ’Donnell has been at all times, and is now, ready and willing to render such service and advice as was contemplated by the Will. ’ ’

The trustees were “ordered, directed and decreed to follow and comply with Paragraph Thirty-four of said Will as defined and construed herein. ” It is from the foregoing portion of the decree that the trustees (appellants) have appealed.

The theory of appellants is that by paragraph 34 the testator merely expressed a wish that appellee be employed as attorney for the trustees so long as his employment, in their judgment, was for the best interests of the trust estate; that the responsibility for the proper administration of said estate rests solely upon the trustees and not upon their attorney, and that it is the absolute right and duty of the trustees, when legal aid is necessary, to employ such attorneys as in their best judgment and discretion are best fitted to advise them, and whose employment is for the best interests of said trust estate and of the beneficiaries thereunder. Appellants further ' contend that paragraph 34 did not create a trust in favor of appellee.

The theory of appellee is “that paragraph 34 creates a trust in favor of defendant, and that the trustees had no right, power or authority to discharge, or to attempt to discharge him, and that such power is possessed only by a Court of competent jurisdiction, upon a proper showing. . . . That the clearly expressed wish of the testator is equivalent to a positive direction or command; and that a trust was thereby created in favor of defendant.”

The general rule as to the right of a client to change or to discharge an attorney is thus stated in 6 C. J. 676-678:

“The law is well settled that a client has the right to discharge his attorney at any time either with or without cause. . . . The relation between attorney and client is such that the client is justified in seeking to dissolve that relation whenever he ceases to have absolute confidence in either the integrity, the judgment or the capacity of the attorney. . . . This right of discharge exists even though a contingent fee has been agreed upon, or an irrevocable power of attorney has been given, or the attorney has rendered valuable services under his employment, or the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action. There is an exception, however, where the attorney has acquired an interest in the property.”

Numerous authorities cited support the above statement of a settled rule of law. Appellee, as we understand his argument, does not question the rule stated in Corpus Juris, but contends that by the language of paragraph 34 the testator clearly directed or commanded the trustees to employ him as their attorney in the administration of the trust estate and that thereby the testator created a trust in his favor. Neither of the parties has cited any Illinois authority bearing upon the question before us, nor have we, in our search, found any. Other courts, however, have passed upon the question. In the case of In re Thistlethwaite, 104 N. T. S. 264, the court was called upon to interpret the following provision in the will of one Bickford, who left a very large and valuable estate:

“Thirteenth. I direct and desire that my friend, Charles McLouth, the draftsman of this will, who has been my attorney and adviser for many years and has had charge of all my legal business, shall be continued in the management of my estate, so far as legal advice or assistance shall be necessary or had by my executors.” (Italics ours.)

The executors employed McLouth in certain legal matters pertaining to the estate, for which they paid him. Thereafter, when it became necessary to employ an attorney, they employed Clarence E. Shnster. Mc-Louth made a claim that under the thirteenth paragraph of the will he alone should have been employed, that he was the only person entitled to any compensation from the estate for legal services, and that he was entitled to all the compensation which in the course of administration of the estate it became necessary or expedient for the executors to incur for such services. McLouth further contended that the paragraph “creates for him a trust and beneficial interest in the estate, and was intended to be a legacy from the testator to him, and that he has an interest and standing in these proceedings substantially the same as any other legatee.” The court held that the paragraph did not create a trust and that the executors were legally justified in employing Shnster. The claim of McLouth was disallowed. It will be noted that in that case the testator used the word “direct.” In the instant case the testator used the word “request.” In the case of In re Ogier, 101 Cal. 381, the will of the testator contained the following provision:

“28. I hereby select as the attorney of my estate John W. Mitchell, and direct my executrix to consult and employ him in all matters pertaining to the distribution of my estate, and the requirements of this my last will.” (Italics ours.)

It was held that this provision was not binding upon the executrix but was simply an advisory provision which she might disregard, if she chose to do so, by the employment of other attorneys. In Young v. Alexander, 16 Lea (84 Tenn.) 108, the will contained the following clause:

“8. I hereby nominate and appoint my nephew, M. B. Young, of Jackson county, Tennessee, as advisory and counsel of my said executors, who will-assist them in winding up my unfinished and unsettled business.” (Italics ours.)

The executor refused to employ Young as counsel, whereupon the latter filed his bill to compel the executor to recognize him as the legal adviser and counsel, “and to give him all the legal business of the estate that required the services of an attorney, and to enjoin the executor from employing any other attorney or counsel except himself,” etc. The court held that clause 8 was not binding upon the executor and that he might ignore the provision and employ other counsel at his discretion; that “however persuasive such a provision may or might be, it can only be effective as an advisory provision.” In 41 Harvard Law Eeview 709 is an article on “Testamentary Directions to Employ.” The author reviews all of the cases of which we are aware that bear upon the subject, and his conclusion is (p. 719):

“It would seem that the cases which universally hold that a trustee or executor is not bound to employ an attorney designated by the testator are clearly correct.” (Citing cases.)

The author states (pp. 720, 721): .

“Public policy may well be held to require that the trustee should not be hampered in the administration of the trust by requiring him to employ a particular person in the administration of the trust. This seems to be clear where the trustee can show that the designated person is unfit to be employed. It may also be held to be so even though the person is not shown to be unfit. . . .
“Only two cases have been found in which a direction to a trustee to employ a person has been specifically enforced. In Hibbert v. Hibbert, 3 Mer. 681 (1808), a testator directed that a certain person should be appointed ‘receiver’ of his estate in Jamaica and stated that-he made this appointment for the sake of benefiting him in a pecuniary point of view. The court appointed him as receiver or ‘consignee’ as he was called in Jamaica. The trustees under the will contended that he should not have been appointed because they did not regard him as duly qualified for the position and that in any event he should be required to give security. Sir William Grant, M. R., held that, in view of the testator’s direction, it was proper to appoint him and that he should not be required to give security.other than his personal recognizance.
“In Williams v. Corbet, 8 Sim. 349 (1837), a testator created a trust and directed the trustees to employ the plaintiff to audit the accounts of his estate. Shadwell, V. C., held that the direction was binding upon the trustees and that the plaintiff was entitled to maintain a bill to prevent them from removing him from the position of auditor. The opinion is very brief and there is no discussion of the principles involved.”

Appellee cites Hibbert v. Eibbert, 3 Her. 681, supra, and Williams v. Corbet, 8 Sim. 349, supra, in support of his position. In each case the testator used the word “direct.” In the much later case of Foster v. Elsley, 19 Chan. Div. 518 (1881), the chancellor was called upon to interpret the following provision in the will of one Upfield:

“ ‘And I declare that my solicitor, William Edward Foster’ (the Plaintiff), ‘shall be the solicitor to my estate and to my said trustees in the management and carrying out the provisions of this my will.’ ” (Italics ours.)

The trustees employed Foster as their solicitor up to October 13, 1881, when he received a letter from certain solicitors stating that they were instructed by the trustees to ask for the immediate" delivery of all deeds, documents and securities in his possession relating to the estate of the testator; also an account of costs due to the plaintiff, and also for an appointment for them to attend at the plaintiff’s office and pay such costs and to receive the documents. Plaintiff moved to restrain defendants from employing any person other than the plaintiff as solicitor to the estate or in any business relating to the management or carrying out of the provisions of the will. The solicitor for the plaintiff, in support of the motion, stated:

“The testator has thought fit to appoint Mr. Foster solicitor to his estate and to his trustees, and they cannot, I submit, arbitrarily remove him from the office, nothing being charged against him in the discharge of his duties. I rely upon Williams v. Corbet (1) and Hibbert v. Hibbert (2).” (Italics ours.)

The defendants cited Shaw v. Lawless, 5 Cl. & Fin. 129, 7 Eng. Rep. 353 (1838), and Finden v. Stephens, 2 Phill. 142 (1846). The chancellor held: “The direction in this will imposes no trust or duty on the trustees to continue the Plaintiff as their solicitor.” In the opinion the chancellor cites in support of his ruling Finden v. Stephens, supra, and Shaw v. Lawless, supra. In the last case cited, a bitterly contested one, the House of Lords reversed the judgment of the court below and held that the following words did not create a trust in favor of Lawless:

“And it is also my particular desire that my said executors, whilst acting in the management of all or any of my affairs under this my will, as also my friend W. S. when he shall enter into the receipt and perception of my said rents of K. V. and K., shall continue the said B. E. L. in the receipt and management thereof, and likewise shall employ and retain him in the receipt, agency, and management of the rents and issues of such other lands and premises as shall and may be purchased and settled in pursuance of the directions hereinbefore contained, at the usual fees allowed to agents, he having acted for me since I became possessed of said estates fully to my satisfaction.”

Williams v. Corbet, supra, and Hibbert v. Hibbert, supra, therefore, have been overruled by the later decisions of the English courts. In Jewell v. Barnes’ Admr., 110 Ky. 329, the provision in the will was:

“I desire that my friend Robert M. Jewell be retained in the employ of the firm on such liberal terms as his long and faithful service entitles him to.”

The court held that this provision did not create a precatory trust and that the widow, having bought the brother’s interest in the business, was under no obligation to keep Jewell in her service.

After a careful examination of the authorities that bear upon the question involved in the instant appeal, we have reached the conclusion that paragraph 34 of the will did not create a trust in favor of appellee. The law appears to be that a trustee or executor is not bound to employ an attorney even though the will uses such words as “direct,” “command” or “appoint.” In the instant case the words used are expressive of nothing more than a mere request.

That portion of the decree of the superior court of Cook county that construes paragraph 34 of the will of Charles H. Sullivan, deceased, is reversed, and the cause is remanded with directions to amend that portion of the decree in accordance with the views herein expressed.

Decree reversed in part and cause remanded with directions.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice Soanlan

text:
    West Side Trust and Savings Bank of Chicago, Complainant, v. Samuel J. Damond et al., Defendants. L. H. Heymann et al., Appellants. Harry J. Reynolds et al., Appellees.
    Gen. No. 37,939.

      Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.
    John M. Lee and Carl M. Loos, both of Chicago, for appellants.
    Michael J. Ahern, of Chicago, for certain appellee.
    Edelson, Latter & Wise, of Chicago, for certain other appellee.
   Mr. Justice Soanlan

L. H. Heymann et ah, intervening petitioners, appellants (hereinafter called petitioners), seek to reverse an order dismissing two intervening petitions, one filed by petitioners and the other by B. J. Dolan, which order was entered in a proceeding wherein West Side Trust and Savings Bank of Chicago, a corporation, as trustee under a certain trust deed, filed its bill to foreclose the trust deed. The resignation of the trustee bank was filed in the court. Earl Morris, a holder of several bonds secured by the trust deed, filed an intervening petition praying for the appointment of a receiver and a successor'trustee. Upon that petition and the motion of William L. O’Connell, receiver of the trustee bank, Harry Reynolds was appointed successor trustee. Petitioners, “a bondholders’ committee,” filed an intervening petition suggesting the appointment of B. J. Dolan as successor trustee. On May 3, 1934, Dolan, “successor trustee by appointment of the committee,” filed a petition asking the court to substitute him as complainant and to vacate the order appointing Reynolds successor trustee. Reynolds filed a motion to dismiss the petition of the committee, and defendants Damond, Freiden and Lansky filed a like motion. The two petitions were consolidated and the two motions were ordered also to stand as motions to dismiss the petition of Dolan. Upon the hearing an order was entered dismissing both petitions, and it is from that order that petitioners appeal. Dolan did not appeal.

In this court Harry J. Reynolds, as successor trustee, filed a motion to dismiss the appeal, upon the ground that the record on appeal was not filed here within the time prescribed by the rules of this court. Bertha Freiden and Samuel Lansky have filed a like motion. Both motions were reserved until the hearing.

The order appealed from was entered on June 1, 1934. On August 29,1934, petitioners filed their notice of appeal. On September 7, 1934, a praecipe for record was filed, which includes the following, “19. Report of Proceedings.” The record was filed in this court on November 7,1934. It discloses that on July 9, 1934, there was filed a “Report of Proceedings in Connection with Order Entered in this Cause on the 17th day of April, 1934, Appointing Harry Reynolds Successor in Trust to the West Side Trust and Savings Bank of Chicago. ...” This report has no place in the instant record and should not have been included in it. Petitioner^ admit that it is not the report specified in the praecipe and that there is no provision in the rules for placing it in the record. No “Report of Proceedings” in connection with the order appealed from was filed. Petitioners have attached to the record, after the certification of the clerk, an “instrument” headed: “Election of L. H. Heymann, et al., Appellants, not to file their own report of proceedings or stipulation of facts.” This unverified, undated “instrument” is signed, “L. H. Heymann, et al. by: John M. Lee and Carl M. Loos.” Petitioners state that they “do not contend that the instrument attached to the record is the election of appellants but was merely attached to the record to advise the court of the actual facts of election on October 22,1934.” That “instrument” is no part of the record and cannot be considered by us. We find nothing in the record to show that an election was made on that date or at any other time.

Supreme Court Buie 36, sec. (2), par. (a), and Bule 1, sec. (2), par. (a), of this court provide:

“When the praecipes do not specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court 30 days after the notice of appeal has been filed.”

Supreme Court Buie 36, sec. (2), par. (b), and Bule 1, sec. (2), par. (b), of this court provide:

“When the praecipes specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court 30 days after the report of the proceedings or agreed statement of facts has been filed.” Supreme Court Buie 36, sec. (1), par. (c), and Bule 1, see. (1), par. (c), of this court provide:
“The report of the proceedings at the trial . . . shall be procured by the appellant and submitted to the trial judge . . . for his certificate of correctness . . . and filed in the trial court within 60 days after the appeal has been perfected. . . .
“Any judge of said court may on good cause shown make an order or orders extending the time allowed for filing such report of the proceedings, but the application for any such order must be made before the expiration of the original or extended period allowed for such filing’. ’ ’

(In the instant case, no extension of time for the filing of the report of proceedings at the trial was allowed or requested.)

Supreme Court Rule 36, sec. (1), par. (e), and Rule 1, sec. (1), par. (e), of this court provide:

“Failure by the appellant to file a report of the proceedings . . . within the time originally allowed or extended, where the praecipe filed by such appellant has specified any of the proceedings at the trial, shall authorize a dismissal of the appellant’s appeal. . . . No dismissal shall be made by the trial court where appellant, after filing his praecipe, elects not to include any proceedings at the trial in the record on review, and transmits the record on appeal to the reviewing court in proper time without such proceedings.
“Where the praecipe filed by the appellant does not specify any of the proceedings at the trial, and appellant fails to file the record on appeal in proper time, the trial court, on application of appellee, may dismiss the appeal.”

Rule 10 of this court has been amended by adding the following paragraph :

“The record on appeal shall be filed in the office of the clerk of this court within five days after the time specified by Rule 1 for its transmittal by the clerk of the trial court. Such transmittal may be directly by the clerk of the trial court or by the filing of the record by the appellant. ...”

Petitioners contend that “there is no provision in the court rules, either Supreme or Appellate, or in the Civil Practice act which directs how the election is to be made”; that if an appellant chooses to elect, the election, under the rule, need not be made in writing and filed in the trial court or here; that it is a sufficient compliance with the rule if an appellant chooses to elect and “advises” this court of his election. This interpretation of the rule is clearly wrong. It is the duty of the clerk of the trial court to prepare the record in a case, and the praecipe filed by petitioners is a written order, signed by them, directing that official to include in the authenticated transcript of the record certain documents, pleadings, etc., including the following: ■ “19. Report of Proceedings.” This procedure is in accord with the usual practice, and the election, under the rule, amounts to no more than a written order to the clerk “not to include any proceedings at the trial in the record on review. ’ ’ Such order, or election, when filed, becomes a part of the record. However, it clearly appears that petitioners failed to make an election in any manner, and they concede that the “instrument” they attached to the back of the record did not constitute an election.

Petitioners’ position is that they “elected on October 22, 1934 not to file a report of proceedings which was within sixty days after notice of appeal was filed by them in the lower court, and that this was a proper and timely election. And docketing the record in the Appellate Court fifteen days thereafter, namely, November 7, 1934, we contend, was transmitting the record on appeal to the reviewing court ‘in proper time’ within the provision of Rule 1(e) of the Appellate Court.” We have heretofore stated there is nothing’ in the record to warrant the contention that petitioners made an election on October 22, 1934.

The order appealed from shows that the judgment of the court was based solely upon the pleadings and that the two petitions were dismissed for want of equity upon the grounds assigned in the motions to dismiss them. The question before the trial court was the same as if, under the old Practice Act, a demurrer had been filed to the petitions and the court had sustained the demurrer and dismissed the petitions for want of equity. Here the appellees followed the new Practice Act, Cahill’s St. ch. 110, H173, sec. 45, which provides that “all objections to pleadings heretofore raised by demurrer shall be raised by motion.” All matters upon which the court acted in entering the order appear of record and therefore no report of proceedings was necessary or proper. A record must be filed in this court within 35 days after the filing of the notice of appeal when the praecipe does not specify a report of the proceedings. Bule 1, sec. (2), par. (b), of this court was intended to apply to cases wherein an appellant requires a report of proceedings to properly present his appeal to this court, and an appellant cannot extend the 35-day period allowed by par. (a) and the amendment to Rule 10 by specifying in his praecipe a “Report of Proceedings,” where the record shows that no such report is necessary or proper. To hold otherwise would, in actual practice, render the time limit fixed by Rule 1, sec. (2), par. (a), for the filing of the record on review practically nugatory. The provision in Rule 1, sec. (1), par. (e), permitting the filing of the record in this court “in proper time without such proceedings” where an election has been,made, means, in our judgment, that appellants are bound to file their record in this court within 35 days after the filing of the notice of appeal. Par. (e) gives an appellant a right “not to include any proceedings at the trial” in the record, but if he exercises that right he is then placed in the same position in which he would have been had his praecipe not designated a report of proceedings. Or, to state it in another way, the only right given an appellant by that rule is to elect not to include the report of proceedings where the praecipe had notified the clerk to include it.

If we were to assume, for the purposes of this appeal only, that petitioners were entitled to a report of the proceedings in connection with the order appealed from, it would avail them nothing. They did not exercise the right of election, nor was any order entered extending the time allowed for filing the report of the proceedings. Par. (c) provides that “the report of the proceedings at the trial . . . shall be procured by the appellant and submitted to the trial judge . . . for his certificate of correctness . . . and filed in the trial court within 60 days after the appeal has been perfected. ...” It is conceded that no such report was ever filed. On August 29, 1934, petitioners filed their notice of appeal. Eule 1, sec. (1), par. (e), of this court provides that “failure by the appellant to file a report of the proceedings . . . within the time originally allowed or extended, where the praecipe filed by such appellant has specified any of the proceedings at the trial, shall authorize a dismissal of the appellant’s appeal. . . .” The record was not filed in this court until November 7, 1934.

After giving serious consideration to the important questions involved in the instant motions to dismiss the appeal, we are constrained to hold that petitioners ’ record was not filed in this court in proper time, and that therefore the said motions should be sustained and the appeal dismissed. It is accordingly so ordered.

Motions to dismiss appeal sustained and appeal dismissed.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    Francis D. Everett et al., Appellees, v. John Sexton and Company, Appellant.
    Gen. No. 37,116.

      Heard in the second division of this court for the first district at the October term, 1933.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.
    Blum & Jacobson, of Chicago, for appellant; Henry S. Blum and Edward M. Keating, of Chicago, of counsel.
    Frederick A. Brown and Max Frederick Goldberg, both of Chicago, for appellees; Wm. G. Worthsy and G. Gale Roberson, both of Chicago, of counsel.
   Mr. Justice Sullivan

This appeal seeks to reverse a judgment for $24,-695.50 in favor of plaintiffs, Everett et al., entered by the municipal court, June 29, 1933, in a first class action tried by the court without a jury.

Plaintiffs’ statement of claim alleged, and the undisputed evidence disclosed, that they were the owners of the premises known as 16-18 South Clark street, Chicago, and entered into a valid lease of same to the Charles Weeghman Corporation (hereinafter referred to as the Weeghman Company) for a term of 20 years, commencing May 1, 1921 (later extended five years); and that the lease contained the following provisions:

“That said Lessee shall, and hereby agrees to pay as additional rent for said premises, all taxes, assessments, water rates, special assessments, gas and electric light and power bills, and all other impositions of any and every kind which may be levied, assessed or imposed upon said premises, for and during the term of this lease, . . .
“That each and every one of the covenants and agreements herein contained shall extend to and be binding upon the heirs, executors, administrators and assigns of said Lessors, and also upon the successors and assigns of said Lessee; . . . and that the words ‘Lessors’ and ‘Lessee’ wherever used in this lease shall include in meaning the successors in interest hereunder of said Lessors and of said Lessee respectively.”

It was further alleged and shown by the evidence that in 1925 the Weeghman Company, under its seal, executed a written assignment of its lease to one Arthur Doyle, the pertinent portions of such assignment being as follows:

“For and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable considerations in hand paid, receipt whereof is hereby acknowledged, the undersigned Charles Weeghman Corporation does sell, assign, transfer and set over to Arthur Doyle of the City of Chicago, County of Cook, State of Illinois, all its right, title and interest in and to the attached lease, . . . said lease being between Frances M. Gregory and others as lessors and the Charles Weeghman Corporation as lessee, and bearing date the 15th day of April, 1921.
“In Witness Whereof the said Charles Weeghman Corporation has caused its corporate name to be signed hereto by its President and its corporate seal to be hereto affixed and duly attested pursuant to Resolution of the Board of Directors first thereunto duly adopted.
“Charles Weeghman Corporation, By D. E. Upton,
President.
“Attest:
Edmond M. Simonde,
Secretary.
Corporate Seal.”

It was also alleged and shown by the evidence that the cqnsent of the lessors was neither required nor given to this assignment; that June 30, 1928, defendant, Sexton & Co., Arthur Doyle and one Feuerlicht, entered into an agreement under the seal of all the parties thereto to sublease the premises to Feuerlicht, which agreement recited, among other things, that Doyle had received the assignment of the lease in his own name, “but only as the agent for and in behalf of Sexton & Co.”; that all the consideration therefor was paid by Sexton & Co., and that “all rights” of Doyle therein belonged to and were owned by Sexton & Go. ; that Sexton & Go. received $38,000 from Feuerlicht as a bonus for making the sublease. It was then alleged and the evidence showed that Sexton & Go. continued to receive all the benefits of the lease until February 2, 1932, when Doyle assigned the lease to Feuerlicht with the consent and approval of Sexton & Go.; that the unpaid balance of taxes levied against the property for 1928 was $4,000; that the taxes levied and unpaid for 1929 and 1930 were $9,873.65 and $10,820.87, respectively; and that these amounts, totaling $24,695.50, were not paid by Doyle, Sexton & Co., nor by any other person in their behalf.

This action by the owners of the premises for the recovery of the unpaid taxes for the years 1928, 1929 and 1930, was originally brought against Doyle and Sexton & Co., but was subsequently dismissed as to Doyle.

Defendant contends that it cannot be compelled to perform a promise made by its agent, Doyle, by virtue of the assignment to him by Weeghman of the lease by and through an instrument in writing under seal, because (1) no one but a party to an instrument under seal may be sued upon it, (2) a privy in estate is a successor to the same estate and not to a different estate in the same property, (3) in order to hold a third person liable on the covenants of a lease as assignee there must have been an actual legal assignment of the lease to him, and (4) the fact that the undisclosed principal receives the benefit of the lease or enjoys the performance of the contract does not authorize its enforcement against it on either the theory of privity of contract or privity of estate.

Plaintiffs ’ theory is that defendant was in privity of estate with them and is, therefore, liable for the payment of taxes as provided in the lease, as the agreement to pay the taxes is a covenant running with the land; and that defendant is an undisclosed principal in the assignment of the lease to Doyle, which as to him was not under seal.

Defendant concedes that Doyle was only its “dummy” or “straw man,” and that it enjoyed the full use and possession of the premises and received all the benefits of the lease from November, 1925, when the lease was assigned to Doyle as defendant’s agent by the Weeghman Company, the original lessee, until February 2, 1932, when the lease was assigned to Feuerlicht.

Under an almost identical factual situation in Ottman v. Nixon-Nirdlinger, 301 Pa. 234, where the trustees of the beneficial owners of certain property, by a written lease under seal, leased same to “Realty Associates” for a term of 99 years, such lease providing that the lessee was to pay the taxes as additional rent, that it might assign the lease and that not only the lessee but its successors or assigns were bound by its terms, and where such lessee assigned the lease by an instrument under seal to one Cross, admittedly a “straw man” for undisclosed principals who entered into and had the beneficial enjoyment and use of the premises, in an action of assumpsit against the undisclosed principals for their default in payment of taxes and rent, the court, holding that the undisclosed principals were liable, said at pp. 241, 242 :

“The agreement with the Associates, Inc., was under seal, as was the assignment to the straw man, Cross, but plaintiffs insist that those having the beneficial enjoyment or use are liable for the performance of the sealed covenants, binding as they did their successors and assigns. If any liability exists it must arise from the proof of a privity of estate rather than of contract.
a
“We are not unmindful of the interpretations of the early-recognized rule that, where a demise under seal is in question, an action against an undisclosed principal does not lie, since the relation between the owner of the land and the one who occupies is of a purely legal character. Many decisions upholding this proposition, some of which have been cited by appellee, are found in an annotation to 32 A. L. R. 162, of which the leading one, particularly relied on, is Borcherling v. Katz, 37 N. J. Eq. 150. But an examination of the authorities referred to will show the controlling question was whether a privity of estate existed. If so, the unnamed principal, in actual possession, or having the beneficial enjoyment, may be held, . . .
“. . . and if the undisclosed transferees as principals received the beneficial enjoyment of the property, as averred, then they are, in terms, responsible. ’ ’

Commenting* upon the decision in the Ottmcm case and the principles of law enunciated therein, 79 University of Pennsylvania Law Review uses this language at p. 357:

‘ ‘ The rule is well established at common law that an assignee of the leasehold takes upon himself both the burdens and the benefits of all those covenants in the lease which run with the land. A covenant to pay rent and one to pay taxes are among those covenants which so touch and concern the land that they may be said to run therewith. This personal liability of the assignee to the lessor, is grounded in the doctrine of privity of estate avbd is alien to those rules arising from, the relation of privity of contract. Therefore, this liability continues only so long as does the privity of the estate. . . . Granted these elementary rules, the problem of the principal case narrows down to this: What is the full meaning and nature of privity of estate; and, is an undisclosed principal whose authorized agent has become assignee, in privity of estate with the lessor? The many Pennsylvania cases on the subject agree in defining ‘privity of estate’ as the actual or beneficial enjoyment of the premises, or the right to possession and enjoyment. This enjoyment may take the form of the assignee’s deriving material gain and benefit from his position, as where he sublets the property with a profit to himself. . . . Surely the principal who controls with an unseen hand the nominal assignee has the beneficial enjoyment of the premises, and any benefit derived from the assignment is, in fact his. The agent is but the human conduit through which flows the profits to the unseen principal. The fact that the agent holds ‘legal title’ (i. e., the cluster of rights and liabilities that pass with the assignment) is res nullius momenti, mere form and shadow. . . . This reasoning leads to the conclusion that the principal, smce he receives the beneficial enjoyment of the property under the assignment, is in privity of estate with the lessor, and therefore liable on the lessee’s covenants which run with the land. This result is not at variance with the archaic rule, that, since a sealed instrument may be enforced only against those who appear as parties on its face, an undisclosed principal is not liable thereon. That rule is based on the relation of privity of contract, whereas in the situation under discussion it is privity of estate that creates the liability.” (Italics ours.)

That the equities in this case are with the plaintiffs is not only apparent but admitted. The defendant seeks to evade liability on purely technical grounds. However, we think that the sound principles voiced in the Ottman case and the Pennsylvania Law Review, as well as others hereinafter discussed, enable us to reach a decision not only in conformity with the law, but with good morals and equity as well.

Sexton & Co. paid all the instalments of rent on the property due under the lease until the assignment to Feuerlicht in 1932, and it recognized its responsibility to pay and did pay the taxes on the premises from the date of the assignment of the lease by Weeghman Company to Doyle in 1925 until 1928, when it paid $4,268.18 of the $8,268.18 taxes due for that year.

Defendant insists that, the assignment of the lease to Doyle, although only under the seal of the Weeghman Company, must be held to be' a sealed instrument as to Doyle as well. Is the instrument in question a sealed instrument as to Doyle, who neither signed nor sealed it? The law on this question is clearly set forth in Amer. & Eng. Eney. of Law, 2nd ed., vol. 8, pp. 64 and 65, as follows:

‘ ‘ The recognized distinction between a covenant and a simple contract is thát the former is under seal. It follows, therefore, that a promise, in order to be binding as a covenant, must be under the seed of the party by whom it is to be performed. A very singidar exception to this principle has, however, been recognized by some of the older authorities, and has been adopted as law in New York and New Jersey. It is this: If an estate is conveyed by a deed inter partes containing covenants to be performed by the grantee, and the grantee accepts the estate, the deed, though only signed and sealed by the grantor, will be deemed the deed of both parties, and the grantee will be as effectually bound by the covenants as though he had executed the instrument. The principle upon which this exception has been allowed is stated in a New York case to be that the grantee is estopped by his acceptance ‘from denying that the seal attached to the deed is his as well as that of the grantor, and hence, when sued upon his covenants, the proof of the deed and of his acceptance thereof, and enjoyment of the estate conclusively establishes that he has covenanted as stated. ’ But this exception has been justly criticized as erroneous in principle, and will be found to be unsupported by the authority of any adjudged cases except those rendered in the states above mentioned which have adopted it. It may safely be stated as the general rule, that mutual covenants cannot arise out of a deed poll.” (Italics ours.)

The rule above set forth is the rule accepted and followed in this and most other States. In Rockford, R. I. & St. L. R. Co. v. Beckemeier, 72 Ill. 267, which has never been overruled in so far as we have been able to ascertain after a diligent search of the authorities, and in which it was sought to recover from the grantee in a deed poll in an action of covenant, our Supreme Court said at pp. 269, 270:

“It is insisted that the action is misconceived; that whilst case or assumpsit might lie, covenant can not, inasmuch as this is but a deed poll, not executed by appellant; that a party can not become bound so as to be sued in covenant, unless he shall have executed the deed containing the covenants. On the other hand, it is claimed that by accepting the deed and availing of its benefits the grantee impliedly covenants to perform the terms and conditions upon which the grant is made; that an implied covenant may as readily arise as may an implied assumpsit.
“In the case of Burnett v. Lynch, 5 Barn. & Cress, 589, it was held by the four judges of the King’s Bench, that where a lessee, by deed poll, assigned his interest in the demised premises, subject to the payment of rent and the performance of the covenants in the lease, and the grantee of the lessee took and held possession of the premises and occupied them, and before the end of the term assigned to a third person, and the lessor having sued the lessee and recovered for a breach of the covenants, the lessee might maintain case against his grantee who held under the deed poll. . It was there said, that the action of covenant could not be maintained, except against a person who, by himself or some other person acting on his behalf, has executed a deed, under seal, or who, under very peculiar circumstances, has agreed, by deed, to do a certain thing. It was also said: ‘Here, the defendant has not engaged, by deed, to perform the covenants, and, consequently, covenant will not lie.’
“The rule, as there stated, seems to be strictly in accordance with the general and well settled practice. It is true, that where the covenant is inherent, or runs with the land, the heirs, executors, administrators and assigns may be bound by such covenants. Shep. Touchstone, 177. But that is an exception to the general rule, and the case at bar does not fall within the exception. We are, therefore, clearly of the opinion that this action was misconceived, and will not lie on the facts averred in. the declaration or shown in proof on the trial.”

In Walker v. Kesner, 86 Ill. App. 244, the court held at p. 245:

“Without discussing appellant’s possible right of recovery against appellees in another form of action upon the facts disclosed by the declaration, it is enough to say that it appears from the declaration, and from each count thereof, that appellees did not enter into any covenant whatever with appellant, and hence that the declaration in covenant was had. Here the defendant has not engaged by deed to perform the covenants, and consequently covenant will not lie. Burnett v. Lynch, 5 Barn. & C. 589; Moore v. House, 64 Ill. 162; R. R. I. & St. L. R. Co. v. Beckemeier, 72 Ill. 267; Hancock v: Yunker, 83 Ill. 208; Neufeld v. Beidler, 37 Ill. App. 34; McCormick v. Seeberger, 73 Ill. App. 87; Seeberger v. McCormick, 178 Ill. 404; Murphy v. Kohlsaat, 68 Ill. App. 579.”

It thus appears that in so far as Doyle is concerned the assignment of the lease by the Weeghman Company to him constituted only a simple contract because it was not executed by him under his seal. Under the law of this State a valid assignment of a lease may he made by an instrument not under seal. (Hoover v. Weber, 154 Ill. App. 263.) At common law all contracts not under seal were deemed to be in parol and were called simple contracts. Simple contracts under the common law included written as well as oral agreements and are distinguished from special contracts simply by the fact that they are not under seal. (Webster v. Fleming, 178 Ill. 140; Amer. & Eng. Ency. of Law, 2nd ed., vol. 7, pp. 94, 95.)

The assignment of the lease by the Weeghman Company being a simple contract as to Doyle, was it an assignment to his acknowledged undisclosed principal? The rule is general and of almost uniform application that, as to simple contracts, where a party acts by an agent the act is his and not that of the agent; and it is equally true that where the agent does not disclose the name of his principal the other party may, when he learns it, hold the principal responsible for its performance. (Barker v. Garvey, 83 Ill. 184.) Therefore, the assignment of the lease of the premises in question having been made to Sexton & Co., through its agent, Doyle, a privity of estate was created between plaintiffs, the original lessors, and Sexton & Co., which subjected it to liability for the payment of taxes, which was a covenant that “run with the land.”

We hold that Sexton & Co., under the assignment of the lease from the Weeghman Company, having admittedly had the possession, use and enjoyment of this property from 1925 to 1932, including the rents, profits and benefits therefrom, and having received a bonus of $38,000 for the assignment of the lease to Feuerlicht in 1932, it would be unconscionable to permit it to evade the payment of the taxes in question. The assignment of its whole estate in the original lease by the Weeghman Company to defendant, Doyle’s principal, at once created a privity of estate between it and plaintiffs, the original lessors, and the latter, by reason of such relationship, had a right of action directly against Sexton & Co., as such assignee on covenants running with the land, one of which is to pay the taxes. The relation of landlord and assignee of a term, however, does not result from any privity of contract between the landlord and the assignee of a term, but from privity of estate, and, therefore, when the original lessee has divested himself of his entire term and thus ceased to be in privity of estate with his original landlord, the person to whom he has transferred that entire term must necessarily be in privity of estate with the original landlord, and hence liable as assignee of the term. (Sexton v. Chicago Storage Co., 129 Ill. 318; Consolidated Coal Co. v. Peers, 205 Ill. 531; Thompson v. O’Gara Coal Co., 269 Ill. App. 55.) Under the law and the undisputed facts we are convinced that defendant is clearly liable.

Other points have been urged, but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons indicated herein the judgment of the municipal court is affirmed.

Affirmed.,

. Friend, P. J., and Soanlan, J., concur.


text:
    Aloys Botthof, Appellant, v. Walter Fenske, Appellee.
    Gen. No. 37,586.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.

      Barnabas F. Sears and Charles S. Harvey, of Chicago, for appellant.
    John A. Bloomingston, of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

Aloys Botthof, plaintiff, brought an action of trespass on the case against defendant, Walter Fenske, for damages as a result of injuries sustained by him by reason of the alleged negligent operation of an automobile by defendant. Fenske filed three pleas, one of which was that plaintiff’s sole remedy was under the Illinois Workmen’s Compensation Act, Ca-hill’s St. ch. 48, T[ 201 et seq., and to this plea plaintiff filed a general and special demurrer upon which he elected to stand after it was overruled by the court. Judgment was thereupon entered against plaintiff and this appeal followed.

Plaintiff’s declaration contained three counts, only two of which, the second and third, are material, the first having been withdrawn before the hearing on his demurrer. The second count alleged that June 11, 1931, plaintiff was an employee of Fenske Bros., Inc., which was engaged in the manufacture and sale of furniture; that while engaged in painting and making certain adjustments of parts or repairs of certain doors in the rear of the building in which said Fenske Bros., Inc., conducted its business, he was standing on a ladder about 15 feet from the ground; that it was the duty of defendant, who was then and there in possession of and operating a certain automobile, to exercise reasonable care in the operation of such automobile for the safety of plaintiff and others; that, disregarding such duty, and while plaintiff was in the exercise of ordinary care for his own safety, defendant in operating said automobile negligently and carelessly propelled and backed same against the ladder upon which plaintiff was standing, causing him and the ladder to be thrown with force and violence to the pavement, etc. The third count is the same as the second except that it alleges that defendant’s conduct in backing the automobile against the ladder upon which plaintiff was standing and working was wanton and wilful.

Defendant filed pleas of not guilty and nonownership, nonoperation and noncontrol of the automobile in question, and later an additional plea that plaintiff’s sole remedy was under the Workmen’s Compensation Act. It is only with the latter plea that we are concerned on this appeal and it is as follows:

“And for a further plea in this behalf the defendant, Walter Fenske, says that the plaintiff ought not to have his aforesaid action against the defendant, Walter Fenske, aforesaid because the defendant says that on the said 11th day of June, A. D. 1931, the date upon which it is alleged the said Aloys Botthof was injured, and on the day that the cause of action accrued, if one accrued, the said Aloys Botthof was working as an employee of Fenske Bros., Inc., and the said Aloys Botthof was injured by reason of an accident arising out of and in the course of his employment.
“And defendant, Walter Fenske, says that the said defendant was likewise on the day of the accident and injury herein complained of, working as an employee of Fenske Bros., Inc., and the said Fenske Bros, and the said defendant, Walter Fenske, and the said plaintiff, Aloys Botthof, and each of them, and all of them, were operating under the Workmen’s Compensation Act of the State of Illinois, and the said accident and injury to the plaintiff arose out of and in the course of his employment as an employee of the said Fenske Bros., and while the' said Walter Fenslte was working in the course of his employment as an employee of the said Fenske Bros., engaged under the Workmen’s Compensation Act of the State of Illinois and the said parties, and each of them, and all of them had prior to said date accepted the provisions of the Compensation Act of the State of Illinois according to its terms, and agreed to accept and pay compensation under said Act because the said Fenske Bros., Inc., was engaged in enterprise designated by the Workmen’s Compensation Act as extra-hazardous and requiring them to pay compensation according to the terms thereof, so that each and all and every party above mentioned were on the date of said accident and on the date when the cause of action accrued whenever same did accrue, operating under and governed by the terms of the Workmen’s Compensation Act of the State of Illinois.
“Wherefore the remedy of the said plaintiff, if any, is under the Workmen’s Compensation Act of the State of Illinois, and of this the defendant, Walter Fenske, puts himself upon the country, etc.”

Plaintiff contends that the Workmen’s Compensation Act of Illinois was not intended to affect the relationship existing between coemployees, or disturb the common law rights and liabilities existing between them prior to its passage; that the act in so far as liability for damages is concerned for injury to employees only effected a change in the rights and liabilities of employers and employees as between themselves, whether it be between an employee of one company and a different employer, so long as one was an employee and the other an employer, and the employer sued was bound to pay compensation under the act; that before a person can claim the benefit of the act in-discharge of his liability to pay damages, he must be bound to pay compensation under the act; that employees have no liability to pay compensation under the act, and, therefore, an employee is not a person bound by the act within the meaning of sec. 29 thereof, Cahill’s St. ch. 48, 1Í229; and that, therefore, this plaintiff has, unaltered and unaffected by any of the provisions of the Workmen’s Compensation Act of this State, his common law right to sue his coemployee for the injury which he received and which he contends was both negligently and carelessly, and wantonly and wilfully inflicted upon him.

Defendant’s theory is that, inasmuch as plaintiff and defendant were coemployees, both working for the same employer who was bound by the provisions of the act, and, inasmuch as plaintiff and defendant had both accepted the provisions of the act and agreed to accept compensation under same, irrespective of whether defendant was guilty of wilful and wanton misconduct or mere negligence resulting in injury to plaintiff, plaintiff’s sole remedy was under the Compensation Act against his employer.

This appeal presents the single question as to whether plaintiff can maintain this common law action against a fellow servant of their common employer or whether he is relegated solely to his right to compensation from such employer.

It is unquestioned that prior to the enactment of the Workmen’s Compensation Act an injured employee had the right at common law to sue his fellow employee for his negligent conduct causing the injury. Did the compensation act abrogate such right? We think this question has not been directly determined by the Supreme Court of this State.

In Judson v. Fielding, 237 N. Y. S. 348, in considering the same question, which was stated to be of first impression in that State, the court said at p. 354:

“The language of section 29, Workmen’s Compensation Law (as amended by Laws 1924, c. 499), is somewhat obscure and confusing relative to the right of an injured employee entitled to compensation, or the dependents of such an employee suffering death from accidental injuries caused by the negligence or wrong of another, to maintain an action against one in the same employment. The dependents or employees are required to elect before any suit or any award whether they will take compensation or pursue a remedy against one not in the same employ whose negligence or wrong caused the accident. It is the words, ‘not in the same employ,’ upon which this defendant relies in asserting that no action can be brought against a coemployee. . . . It is ancient law that the servant is liable in damages for his own tortious acts, even though at the time he was engaged in the work of his employer. Murray v. Usher, 117 N. Y. 542, 547, 23 N. E. 564. We find no intent or purpose in the statute to absolve any but the employer from liability in a civil action for damages caused by his own wrong. Eights long existing should not be taken away except by a statute where the purpose to do so is clear. The employer has not been sued, and the coemployee should be held liable unless the right to maintain an action against him is forbidden by positive statute. To hold that a fellow servant should under no circumstances be liable to another for damages resulting from a negligent or willful act occurring in the course of their common employment would be fraught with highly dangerous consequences and would remove in a large measure the restraint of personal responsibility óf the employee for his acts. We think that the most rational interpretation of the statute is to hold that the Legislature did not intend to require an election of remedies in the case of coemployees.”

In passing upon this question in Sylcox v. National Lead Co., 225 Mo. App. 543, 38 S. W. (2d) 497, the court used the following language at pp. 501, 502:

“In other words, the whole scope and purpose of the act is to fix and determine the rights and liabilities as between employer and employee; the liability of one at common law is left unaffected by the act, except in so far as it has been expressly taken away by it; and where one has, and can have, no liability under the- act, he.is likewise in no position to claim any immunities under it. . . . "
“Now there is no doubt that at common law one servant is liable to another for his own misfeasance, and. there is nothing in the Compensation Act which destroys such liability or in any way disturbs the common law relationship existing between coemployees. Certainly the negligent employee is not liable for compensation, and therefore he is a stranger to the act, being a person other than the employee entitled to receive compensation or the employer liable to pay it. The right of the injured employee to sue the third person depends upon whether the latter is subject to the act. Since the coemployee whose misfeasance produces the injury is not subject to the act, he must be regarded as a ‘third party,’ and therefore amenable to an action at common law.”

While their compensation acts differ in some respects from ours and some of them require the injured employee to elect whether he will take compensation or pursue his remedy against one other than his employer, whose negligence or wrong caused his injury, it has been held in England, New York, New Jersey, Pennsylvania, Michigan, Wisconsin, Missouri, Connecticut and some other States that the common law right of an injured employee to sue his coemployee for his negligence arising out of and in the course of their common employment, was not abrogated by the enactment of compensation acts in those jurisdictions. (See Lees v. Dunkerly Bros. (H. L.), 103 L. T. Rep. 467; Judson v. Fielding, supra; Churchill v. Stephens, 91 N. J. L. 195,102 Atl. 657; Zimmer v. Casey, 296 Pa. St. 529, 146 Atl. 130; Webster v. Stewart, 210 Mich. 13, 177 N. W. 230; McConigle v. Cryphan, 201 Wis. 269, 229 N. W. 81; Sylcox v. National Lead Co., supra; Wells v. Lavitt, 115 Conn. 117, 160 Atl. 617.)

The title of our Workmen’s Compensation Act, as amended, is “An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment within this State, and without this State where the contract of employment is made within this State. . . .” Its main object was to provide a prompt, sure and definite compensation with a quick, cheap and efficient remedy against their employers for injuries and death suffered by employees in the course of their employment. (O’Brien v. Chicago City Ry. Co., 305 Ill. 244.)

The only provisions affecting rights of action found in the Compensation Act are contained in sections 6 and 29, which are as follows:

“Sec. 6. No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury.” Cahill’s St. ch. 48, TT 206.
“Sec. 29. Where an injury or death for which compensation is payable by the employer under this Act, was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this-Act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee. Where the injury or death for which compensation is payable under this Act, was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this Act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee of his personal representative: Provided, that if the injured employee or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employee or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employee or personal representative or in his own name against such other person for the recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee or personal representative, all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, and all costs, attorneys ’ fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability.” Cahill’s St. ch. 48, ff 229.

In the O’Brien case, supra, it was claimed that an employee, who had a right to compensation from his employer under the act, had no common law right of action for negligence against the person causing the injury, whether his employer or a third person; and that the common law action for negligence was entirely abolished and the only remedies which exist are those which are found in the statute.

The language of sec. 6, considered by itself, is broad enough to abolish the common law right to recover damages against any person for an injury sustained by an employee in the line of his duty as such employee, but, interpreted in the light of the subject matter in connection with which it is used, such language must be held to apply only to the right of the employee against his employer, and can have no reference to the liability of third persons causing injury to employees. The common law right of action for negligence causing injury to an employee against any person other than his employer remains unaffected by that section if considered alone, but in its interpretation not only must, the subject matter to which it applies be taken into consideration but also the other provisions of the act. (O’Brien v. Chicago City Ry. Co., supra.)

While the point involved in the O’Brien case was the right of an employee of one employer, both having accepted the terms of the act, to bring a common law action against another employer not bound by the act for its negligence in causing his injury, we think pertinent and applicable to the question involved here the following language used by the court in that case at pp. 252, 253, 258, 259:

“The Workmen’s Compensation Act effects a complete change in the rights and liabilities of an employer and his employee in regard to accidental injuries to the employee. The common law action for negligence can no longer be maintained but the statutory remedy, alone, is available. The act makes no reference and has no application to the rights and liabilities of third parties except as those rights and liabilities affect the relative rights of the employer and employee as between themselves. Section 29 deals with cases of this character and only with cases of this character, cases in which the injury or death was caused under circumstances creating a legal liability for damages on the part of some person other than the employer. The language of the section assumes that the liability of a person other than the employer, which existed at common law, continues after the adoption of the act, for it is not where the injury or death was caused under circumstances which would have created a legal liability for damages on the part of some person other than the employer but for the passage of this act, but is ‘where an injury or death . . . was caused under circumstances creating a legal liability.’ Under such circumstances other provisions of the act have imposed on the employer a liability to pay the fixed compensation regardless of the fact that he is wholly guiltless of negligence or of any fault. The employee being entitled, in such case, to recover the full amount of his damages from the person causing the injury by his negligence, a complete equitable adjustment of the rights of the employer and employee, as between themselves, would require that out of the amount so received the employer, who was guiltless of any , wrong, should receive indemnification for the compensation which he had advanced. The purpose of section 29 is to require this indemnification of the employer who has not been negligent, out of the recovery against the third person whose negligence caused the injury. It recognizes the division which the act established between employers and employees who are subject to the provisions of the act and those who are not, and establishes a different measure of liability for the negligent third party causing the injury where such third party was subject to the provisions of the act and where he was not. Where the negligent party was subject to the provisions of the act section 29 provided that the measure of his liability should be the damages sustained, not, however, exceeding the compensation payable under the act, and the employer of the injured employee should be subrogated to his employee’s right against the party causing the injury; but where the person causing the injury was not subject to the provisions of the act his liability as it existed before the act was not affected, but the injured employee’s employer should be subrogated to his employee’s right to the extent of the compensation paid or to be paid under the act. (Keeran v. Peoria, Bloomington and Champaign Traction Co., 277 Ill. 413.) . . .

“Omitting section 29, there is no basis for a claim that the act substitutes the compensation provided by it for a personal action against a person other than the employer negligently causing the injury. The intention of the legislature is to be found in the words used in the act considered in the light of the evil sought to be remedied and the previous condition of the law. The evil sought to be remedied was the condition in the relation of employers and employees which made the accidents which frequently occur in the course of employment subject to long, expensive and uncertain litigation between employers and those of their employees who suffered from such accidents. In considering this subject the legislature did not take into consideration the subject of injuries negligently caused by one person to another between whom the relation of employer and employee did not exist, except in the one case where the injured person was entitled to compensation, and in that case it expressly made the distinction that if the person causing the injury was subject to the provisions of the act the right of action of the injured employee was abolished, and if the person causing the injury was not subject to the provisions of the act the right of action should continue. There is no other provision of the act which indicates a contrary intention or is inconsistent with the express provision of section 29.”

After an analysis in that case of its former decisions bearing on the subject, the court further said at pp. 255, 256:

“From these cases it appears that we have held (1) that the common law right of action of an employee against his employer for negligently injuring him in the course of his employment is abolished; (2) that the common law right of action of an employee against any other person than his employer for negligently injuring him in the course of his employment where such other person is bound by the provisions of the Workmen’s Compensation Act is abolished; (3) that the common law right of action of an employee against any other person than his employer for negligently injuring him in the course of his employment .¿where such other person is not bound by the provisions of the Workmen’s Compensation Act is not affected by the act but is preserved in its full extent to the employee; (4) while the right of action against the person negligently causing an injury who is not bound by the provisions of the act is unaffected by it, the employer who' is free from negligence is entitled to indemnification from the proceeds of such cause of action for the compensation he is bound to pay, and the cause of action may be prosecuted in the name of either the employer or the employee, but in either case is for the benefit of both, in accordance with their respective rights; (5) that in cases of negligent injury caused by a person not bound by the act, the injured employee is not put to his election between compensation under the statute and damages at common law but may prosecute the common law action and the statutory claim for compensation at the same time.”

Does the Workmen’s Compensation Act of this State abolish an employee’s common law right of action against anyone for negligently injuring him in the course of his employment if the person so injuring him is not within the contemplation of the statute bound by the act? What is the legal significance of the language “bound by the act?” If it merely means that defendant was “under the act,” in the sense that he had agreed to accept its provisions for the payment of compensation to him by his employer and for such other relief or remedy as the act might afford him, then plaintiff’s common law action against him must fail. But similar provisions in varying language to the same effect in the compensation acts of nearly all the jurisdictions where this question has been adjudicated have been construed to mean “subject to its terms,” in the sense that one was liable to pay compensation to the injured employee. The defendant was clearly not so bound. Certainly the negligent employee is not liable for compensation; therefore he is a stranger to the act, as far as his liability to his fellow employee is concerned, being a person other than the employee entitled to receive compensation or the employer liable to pay it. The right of the injured employee to sue the third person depends upon whether the latter is subject to the act. Since the co-employee whose misfeasance produced the injury is not subject to the act, he must be regarded as a “third party,” and therefore amenable to an action at common law. (Sylcox v. National Lead Co., supra.)

Defendant insists that the use in section 29, in connection with the provision for an action over against the third party whose negligence caused the employee’s injury, of the language “where ... an injury was not proximately caused by the negligence of the employer or his employeesprecludes any intendment that a common law action would lie by an injured employee against his injuring fellow employee for negligence or wilful conduct. We find no merit in this contention. In our opinion, the foregoing italicized language was intended to be applicable only to actions brought against third persons under section 29, where it was necessary to show, in order to establish a right to recover, that the compensating employer and his employees were not guilty of contributory negligence. It appears to us that the purpose of this language was to negative the right to bring an action for damages to an injured employee, even against a negligent third party, by either the compensating employer or the injured employee who is guilty of contributory negligence or properly or legally chargeable with the negligence of others contributing to the injury. This language, we think, cannot possibly have any application to the situation presented here. It would be paradoxical to hold that an employee who was injured through the wilful, wanton or negligent conduct of a fellow employee could not sue his injuring fellow employee unless he could' first show that his injury was not proximately caused by the negligence of such fellow employee.

Our attention has been called to Cunningham v. Netzger, 258 Ill. App. 150, decided by the Appellate Court for the Second District in 1930, and Bentley v. Lippert, 277 Ill. App, 615 (Abst.). Both of these cases decided that under sections 6 and 29 of the Compensation Act, Cahill’s St. ch. 48, W 206, 229, an injured employee, whose injury arose out of and in the course of his employment, may not recover from a fellow employee, whose negligence caused the injury, where the common employer is “bound by the act,” and both employees have accepted its terms. In neither of these cases was the question here raised presented for determination. In each case the only question the court was called upon to decide was whether the accident causing the injury arose out of and in the course of the employment of the injured employee and his injuring fellow employee, it being assumed that if it did no common law liability attached to the injuring coemployee.

After a careful study of the O’Brien case, including its analysis and interpretation, particularly of sections 6 and 29 of the Compensation Act, the principles of law applicable thereto, and earnest consideration of the respectable authorities cited from other jurisdictions, we are constrained to hold that plaintiff retains unaltered and unaffected by any provision of the Compensation Act his common law right to sue his coemployee for his injuries, which he claims were both negligently and wantonly inflicted upon him.

In passing upon this identical question in Lees v. Dunherly Bros., .supra, Lord Chancellor Loreburn said:

“I can hardly imagine a more dangerous or mischievous principle than that which it is sought to set up here. . . . But it is a very difficult proposition to say that a man is not to be responsible for his own negligence. That would mean a free hand to everybody to neglect his duty towards his fellow servant, and escape with impunity from all liability for damages for the consequences of his own carelessness or neglect of duty. Everyone must have an interest in maintaining the law in a sense hostile to such a proposition, and I should think that, of all classes in the community, workmen who work together in many dangerous employments, have the greatest interest of all in preventing the doctrine which has been put forward very carefully and reasonably from being accepted.”

For the reasons indicated the judgment of the circuit court is reversed and the cause remanded with directions to vacate the order overruling plaintiff’s demurrer to defendant’s additional plea and to sustain such demurrer.

Reversed and remanded with directions.

Friend, P. J., and Scanlan, J., concur.