text:
    Belle Swick et al., Appellants, v. Harold C. Bentley, Appellee.
    Gen. No. 9,579.

      Opinion filed February 7, 1941.
    Rehearing denied March 17, 1941.
    Miller & Thomas, of Bockford, for appellants; L. C. Miller, of counsel.
    Karl J. Mohr, of Bockford, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Belle Swick and seven others, are landowners on what is known as Blackhawk Island in Bock Biver in Winnebago county, Illinois. The Island in question, is platted into lots and blocks. Blackhawk Island is connected by a public highway and a bridge over the Bock Biver with Camp Grant Island. This bridge, built by private subscription by landowners on Black-hawk Island, was completed sometime in 1928. This bridge is the only means for vehicle traffic to Black-hawk Island. The bridge was in bad repair and the property owners made a demand upon Harold C. Bentley, highway commissioner in and for the town of Bockford, Winnebago county, Illinois, to repair or rebuild it, which he refused to do. This suit was started by the plaintiffs for a writ of mandamus to compel Harold C. Bentley, as highway commissioner, to repair or rebuild the bridge in question.

The petition for mandamus does not allege who built the bridge, but it does state that it has been used and accepted by the town of Rockford as a public highway and because of that acceptance, the commissioner of said town had from time to time made repairs on said bridge, and had assumed ownership of it, and by such assumption of ownership, it then became the duty of the town to rebuild or repair the bridge in question, so as to make it safe for vehicular traffic. The answer filed by the defendant denies that the bridge has been maintained by the highway commissioner of the township of Rockford, and also denies that the roads leading to said bridge had been repaired and maintained by said highway commissioner. By amendment, the wording of paragraph 3, of the amended complaint was changed, and it then alleged that the said bridge had been accepted by the said township and had been maintained and repaired by the commissioner of highways, who now wholly refuses to make repairs on the bridge. It does not appear in the abstract that there is any answer filed to this amended complaint. The case was tried upon the theory as presented in the original complaint, that because of the improvement and repairs on the bridge and the approaches made by the commissioner, that this was a legal acceptance of the bridge of the township, and the bridge became a part of the highway system of said township. The case was tried before the court without a jury. He found that there had not been an acceptance of the bridge by the township, as part of the highway system and denied and refused to issue the writ of mandamus as requested. It is from this order that the appeal is prosecuted.

There is very little dispute in regard to the facts in this case. That this Island was platted into lots and blocks, there is no question. That the bridge was erected by private individuals for the use of the people on Blackhawk Island, is undisputed, and that is the only way that vehicles can get upon the island. It is also admitted that the commissioner of highways of the township did make minor repairs on the bridge. The question then arises, whether the acts of the commissioner, in making these repairs, were such as to take the title to the bridge from the individuals who erected it, and place it under the care and jurisdiction of the township. The briefs filed by the appellants and appellee cite numerous cases as sustaining their contentions, and it seems strange that both sides cite practically the same cases. The only case cited which had the same question involved, as this case before us, is the Highway Com’rs of Town of Rutland v. Highway Com’rs of Town of Dayton, 60 Ill. 58. This case was before the Supreme Court and reversed on account of faulty instructions. It was tried again and brought before the Supreme Court and reported in 84 Ill. 279, where it was again reversed and remanded because the verdict of the jury was against the manifest weight of the evidence. The appellants seriously contend, that the law as laid down in this case, is controlling in the present case. In order to understand what the court meant by the language used, the facts in the case must be taken into consideration. In Dayton Highway Com’rs v. Rutland Highway Com’rs, supra, the facts are, that the Town of Dayton is on one side and the Town of Butland on the other side of the Fox Biver. A State road was located from Ottawa to Naperville across Fox Biver and through the Towns of Dayton and Butland. In 1853, a bridge was built across the river by private subscription and the bridge was used as a part of the highway for about 4 years, when it was carried away by ice. Before the bridge was built, the travel across the river was at the ford about a quarter of a mile from where the bridge was later erected. The road leading to this ford from this highway, was fenced off by the commissioners so that the travel would have to go across the new bridge. New roads were constructed by each of the towns to the approach of the bridge. The bridge was rebuilt in 1857 with funds by tax levied by both of the Towns of Dayton and Rutland from appropriations made by the board of supervisors, and by private subscriptions. In 1868, the bridge was out of repair, and the commissioner of highways of the Town of Rutland nailed a plank across the end of it on the Rutland side of the bridge to prevent people from traveling over it, and to avoid injury from its unsafe condition. The commissioner of highways of the Town of Dayton served a notice on the commissioner of the Town of Rutland to aid in the repair of the bridge, and unless they did so, the Town of Dayton would proceed to make the repairs, and the Town of Rutland would have to pay their share of the expense. The Town of Rutland refused to pay for their part of the repairs, so the Town of Dayton proceeded to make the repairs and sued the Town of Rutland for one half of the expense. This seemed, to be the undisputed facts in the above case, and the court in that case held there was sufficient evidence to sustain the contention of the Town of Dayton, that the Town of Rutland had accepted the bridge as a part of the highway system, and found them liable for their share of expense in repairing the same.

The court in its first opinion, after quoting the facts in the case, uses this language: “These were all acts tending to prove an acceptance of the bridge, to be considered by the jury. And it was for them to say whether they all, together, or any one or more of them, proved an acceptance of the dedication. If there was an intention on the part of the highway commissioner to accept, and that was manifested either by declarations or acts, then Rutland Township is liable to contribute to the expense of the rebuilding of this bridge.”

The facts in Dayton Highway Com’rs v. Rutland Highway Com’rs, supra, are certainly stronger and more convincing of an acceptance of the bridge then in question, than the case we are considering. The only acts claimed by the appellants that the commissioner of highway performed, which leads to the conclusion that he accepted the bridge as párt of the highway system, is that minor improvements were made by the commissioner upon the bridge. The commissioner had nothing to do with the location of the bridge, or the highways leading to it, as they did in the Dayton case, (supra). The roads had been dedicated by the owners of the property, and the bridge built by private subscription as a connecting link in the road for the benefit of the owners of lots and of visitors to Black-hawk Island. The court held that in the Dayton case that the officers could not be heard to say that they did not intend to accept this bridge as part of the highway system when they levied a tax for the specific purpose of rebuilding the bridge. We find no such state of facts in the case in question.

Before a writ of mandamus should be issued to compel an officer to perform a duty, the trial judge must be satisfied from clear and convincing evidence that the plaintiffs are entitled to such writ. Before this court will reverse the judgment of the trial court, -it must be convinced that the finding of the trial court was against the manifest weight of the evidence. From a review of the evidence and the cases as cited by the respective parties, we think that the court properly found that the plaintiffs were not entitled to the writ of mandamus, and the judgment of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    Galesburg Sanitary District, for the use of Etta Mae Anderson, Appellee, v. American Surety Company of New York et al., Appellants.
    Gen. No. 9,594.

      Opinion filed February 14, 1941.
    Rehearing denied March 17, 1941.
    Adams, Hawxhurst, Hawley & White, of Chicago, and Hardy, Hardy & Witherell, of Galesburg, for appellants; Ralph R. Hawxhurst and Homer C. Dawson, of Chicago, of counsel.
    Burrel Barash and L. Fred O’Brien, both of Gales-burg, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

The 0 ’Brien Brothers Construction Company, hereinafter called contractor, entered into a contract with the Galesburg Sanitary District, for the construction of a sewage project. Appellants executed their bond in the sum of $683,611 on behalf of said contractor.

Etta Mae Anderson, during the time in question, was the owner of certain premises, which were improved with brick and frame buildings, occupied and used by her for hotel purposes. In 1932, she filed suit against the Sanitary District, the contractor, and appellants, for damages alleged to have been sustained to her property because of the construction work as done by said contractor. She alleged that by virtue of the excavations made, foundations of her buildings were so weakened and disturbed, as to cause them to sink, crack and break, thereby destroying the walls, floors and roofs of the buildings. Ten thousand dollars damages were alleged by the plaintiff Anderson in that suit. Appellants filed a demurrer to the declaration. The court sustained this demurrer and granted leave to the plaintiff to amend her declaration. Thereafter, plaintiff dismissed from her suit appellants and the drainage district. She proceeded to trial against the contractor, recovered a verdict in the sum of $4,000, upon which judgment was rendered, and which is now effective and unpaid.

This present action is a suit by the drainage district for the use of plaintiff Anderson and against appellants, to recover the amount of her aforesaid judgment obtained against the contractor. The cause was heard by the court. Judgment in debt was granted upon the bond, which was ordered satisfied upon the payment of $4,000, and cost of suit. It is from this judgment appellants appeal.

Appellants advance many points for reversal. We shall refer only to those we consider controlling. Res judicata is urged. In support of this position, they claim that the sustaining by the trial court of their demurrer to the suit of plaintiff Anderson, served as an estoppel and bar to this present action. In this regard, it appears that the judgment obtained by plaintiff Anderson against the contractor, is the' only final judgment rendered in that case. Her suit against the contractor was one to recover damages for injury to property. Her election to dismiss codefendants before trial, did not serve as a final judgment as to them. Her action against the contractor, could not be said to rest upon contract. She had no contractual relation with him. The purpose of his securing the bond in question, was for the protection of those whose property he might injure. Appellant’s liability to answer for the contractor’s negligence or damage caused by him in the work, is not based, upon any tortious act of theirs. They in no way participated in the doing of the work. They are merely obligated to respond for such damages caused by the contractor, which he failed to pay.

Appellants also urge that the bond as executed by them did not operate for the benefit of third persons, but only for the protection of the district. In considering this question, it is necessary to refer to the contract. For this purpose the contract and bond are to be construed as one instrument. The bond identifies the contract and briefly states the purpose of same, and is conditioned upon the contractor fully and faithfully performing the work, and provides that he shall well and truly keep and perform each and all of the covenants and agreements therein contained. Article 15 of the contract provides among other things that, “said contractor covenants and agrees to pay the amount or amounts of any and all damages for injury to real or personal property . . . sustained by any person, corporation or party growing out of any act, deed or omission of said contractor, or of his employees or subcontractor, or its, his, or their employees or representatives, or either, any or all of the same. . .

The right of a third person to recover on a contractor’s bond on account of injuries to person or property, depends upon the terms and conditions of the bond. The bond in this case by its terms made the plans, specifications, and construction contract, and all of the terms and provisions, thereof a part of the bond, the same as though fully incorporated therein.

Since the advent of surety companies making a business of acting as surety for compensation, the old rule that such bonds must be strictly construed and all doubts resolved in favor of the surety, has been somewhat relaxed in many jurisdictions. Although this departure is of comparatively recent development, yet it appears that a majority of the several jurisdictions support the doctrine, the courts in such cases treating a compensated surety company similar to companies engaged in other forms of insurance contracts. This situation grew out of the distinction between surety contracts of a company organized for such purpose and so acting for compensation, and a voluntary surety acting without compensation. Those courts which recognize such distinction, take the position that a surety company acting for compensation, will have the contract construed most strongly against it and in favor of the indemnity which the obligee has reasonable ground to expect. The contract is regarded more in the nature of an insurance contract, and by analogy, the rules governing liability applicable in that class of contracts are applied. Such a distinction grows out of the fact that on the one hand the court considers the liability of a professional paid surety company organized for the purpose of engaging in such form of contracts, as distinguished from an individual surety who acts voluntarily and without pay, and who, as a matter of fact, is now extinct in surety contracts involving such amounts as was given in this case.

The above situation has brought about some diversity of opinion as to the strictness with which surety contracts are to be construed. According to the one view, where an ambiguity exists, it will be construed against the one executing the contract. In other jurisdictions, the surety is said to be a favorite of the law, and the contract is construed strictly in his favor. As between these contrary opinions is the view that there should be neither a strict nor a liberal construction, but that the contract shall receive a reasonable construcr tion according to the intent of the parties, in the same manner as other contracts are construed. Such a doctrine does not require a construction which enlarges the words of the guaranty beyond their natural import, in favor of those for whose benefit it is given, nor does it restrict the words in aid of the guarantor. It is interpreted merely in a manner to give effect to the intention of the parties as expressed, rather than defeat the purpose for which it was executed. In observing this rule, the particular contract in question must be considered and given effect according to its own expressed intention as gathered from the language used. Such a rule does not require that the liability of the surety be enlarged upon, but it merely serves to determine the meaning of the contract, and after this is determined, the effect of the guaranty is neither - enlarged nor restricted.

In view of what has been said, on bringing such considerations to bear upon the contract in question, we think a clear intent appears therein to create an obligation on the part of appellants for the benefit of the appellee in this case.

It is also urged that plaintiff Anderson’s suit was based upon tort, and that a tort claim could not be maintained under the bond in question. In this respect it appears by the contract that the contractor agreed to pay all damages for injury to real or personal property resulting from the work to be done. Furthermore, the action of debt lies on a judgment of a court of record and is considered a proper remedy on a judgment rendered. St. Louis, A. & T. H. R. R. Co. v. Miller, 43 Ill. 199, 206; Freeman on Judgments (5th ed.) vol. 2, p. 2256, par. 1086.

Appellants further urge that the district cannot maintain this suit on behalf of Etta Mae Anderson. The contract is under seal, and we are of the opinion that the obligee therein may maintain the action, although the beneficial interest might be in another.

The judgment herein is affirmed.

Judgment affirmed.


author: Mr. Justice John J. Sullivan

text:
    Charles H. Albers, Successor Receiver of the Service State Bank, Appellee, v. Gustav Bramberg et al., Defendants. Gustav Bramberg, Appellant.
    Gen. No. 40,831.
    Opinion filed February 26, 1941.
    Whitty & McGah, of Chicago, for appellant; William E. Moran, of Chicago, of counsel.
    Jetzinger & Quinn, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

A complaint at law was filed by plaintiff, Charles H. Albers, successor receiver of the Service State Bank, against defendants, Gustav Bramberg, Daniel V. Har-kin, Laurance H. Mills, William F. Siewart, Albert F. Keeney and Hjordis Krabol, administratrix of the estate of Claus Krabol, deceased, predicated upon an instrument in writing dated December 9, 1929, wherein said defendants guarantied the payment of certain obligations of the Service Investment Trust to the Service State Bank. The case was tried by the court without a jury and a judgment for $20,413.85 was entered January 16, 1939, in favor of plaintiff and against all the defendants except Laurance H. Mills, who had theretofore been adjudicated bankrupt. Defendant Gustav Bramberg appeals.

Plaintiff’s complaint alleged substantially that on December 9, 1929, the defendants executed a written guaranty in and by which they unconditionally guarantied the payment of any and all loans which had been theretofore made or might thereafter be made during the life of such guaranty by the Service State Bank to the Service Investment Trust to the extent of $30,000; that relying upon defendants’ guaranty, the Service State Bank lent the Service Investment Trust $9,000 on September 18, 1931, $6,000 on October 3, 1931, and $6,000 on December 9, 1931, and that only $617.31 had been paid on said loans; that each of the loans was evidenced by a note payable to the Service State Bank and signed by the “Union Bank of Chicago, as trustee under the provisions of a Trust Agreement dated the 5th day of February, 1924, and known as Trust No. 411, to bind the trust estate and not individually, by Francis H. Hayes, Vice President”; and that the Service State Bank was closed by the auditor of public accounts of the State of Illinois on January 20, 1932. Plaintiff asked judgment for the balance due on the notes, together with interest thereon, and for attorney fees.

Summons was issued May 20,1937, and the sheriff’s return thereon shows that personal service was had upon all the defendants except Grustav Bramberg (hereinafter for convenience sometimes referred to as defendant) and as to him the sheriff certified that he was “not found in my county.”

An alias summons was issued October 4, 1937, and this summons was returned by the sheriff as having been served upon Grustav Bramberg by leaving a copy of same 11 at his usual place of abode in my County with Lucille Haverstuhl (maid), a person of his family of the age of ten years or upwards and informing such person of the contents thereof, on the 11th day of November, 1937, and also by sending through the United States Post Office, on the 11th day of November, 1937, a copy of the within writ in a sealed envelope, with postage fully prepaid, addressed to the said defendant at such usual place of abode.”

Bramberg filed a special appearance on December 3, 1937, for the sole purpose of filing a motion to quash the service of summons.

On December 8, 1937, Bramberg filed his motion to quash the service of summons, supported by the affidavits of Lucille Haverstuhl and Rudolph W. Bram-berg.

Lucille Haverstuhl’s affidavit is as follows:

“Lucille Haverstuhl, being first duly sworn, on oath, deposes and says that she is the same Lucille Haverstuhl who was served with a summons in the above entitled cause for Grustav Bramberg, defendant therein, on November 11, 1937.
“Affiant further says that she is a maid employed by Rudolph Bramberg at the said Rudolph Bramberg’s home at 1201 North Oak Park Avenue, Oak Park, Illinois.
“Affiant further says that Grustav Bramberg, during the period in which she had been employed at said address, has never lived at said address.
“Affiant further says that the last time she saw the said Gustav Bramberg at that address was during the month of April in 1937, at which time the said Gustav Bramberg was a visitor at said address.
“Affiant further says that she is not a member of the family of Gustav Bramberg, and further, was never employed by Gustav Bramberg, in any capacity.”

Rudolph Bramberg’s affidavit is as follows:

“Rudolph Bramberg, being first duly sworn, on oath, deposes and says that he is the son of Gustav Bramberg the defendant in the above entitled cause.
“Affiant further says that he resides, and for the past eight years has resided, at 1201 North Oak Park Avenue, Oak Park, Illinois; that said address is not now, nor ever has been, the usual abode of Gustav Bramberg.
“Affiant further says that during the past eight years, the said Gustav Bramberg has never resided at said address, and that the last time affiant saw Gustav Bramberg was in the month of April, 1937, at which time the said Gustav Bramberg was a visitor at affiant’s home.
“Affiant further says that Lucille Haverstuhl is a maid employed by affiant at the above address.”

Plaintiff filed no counter affidavits and defendant’s motion to quash the service of summons was summarily denied.

Thereafter defendant filed an answer and a trial was had with the result heretofore stated.

Several reasons are urged by the defendant for the reversal of the judgment but we deem it necessary to consider only his contention that the court had no jurisdiction of his person because no summons had been served upon him in accordance with the statute.

Section 13 of the Civil Practice Act (par. 137, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.013]) provides as follows:

“Except as otherwise expressly provided herein, service of summons upon an individual defendant in any civil action shall be made (1) by leaving a copy thereof with the defendant personally or (2) by leaving such copy at his usual place of abode, with some person of the family, of the age of ten years or upwards, and informing such person of the contents thereof, provided that the officer making such service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at such usual place of abode; the certificate of such officer that he has sent such copy in pursuance of this section shall be evidence that he has done so.”

Section 48 of the Civil Practice Act (par. 172, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.048]) contains the following provisions:

“Defendant may, within the time for pleading, file a motion to dismiss the action or suit, where any of the following defects appear on the face of the complaint, and he may within the same time, file a similar motion supported by affidavits where any of the said following defects exist but do not appear upon the face of the complaint:
“ (a) That the court has not jurisdiction of the person of the defendant.” (Italics ours.)

Rule 21 of the Rules of Practice and Procedure of the Supreme Court is as follows:

“Where, after denial by the court of a motion under section 48 of the Civil Practice Act, the defendant pleads over, this shall not be deemed a waiver of any error in the decision denying such motion, and the defendant shall have the right to assign such error on appeal from the final judgment. This rule shall extend to the case where the motion is one attacking the jurisdiction of the court over the person made under a special appearance, and the pleading over by the defendant has involved the entry on his part of a general appearance.”

Even a casual reading of the foregoing sections of the Civil Practice Act makes it readily apparent that defendant’s challenge of the validity of the service of the summons was in accordance with the provisions of such act.

The return of the sheriff on the summons that he served same by leaving a copy thereof with the maid, Lucille Haverstuhl, at the usual place of abode of defendant is evidence of the facts stated in such return but not conclusive evidence. If the facts stated in the sheriff’s return were untrue defendant had the right to show that they were not true. By filing a special limited appearance and his motion, supported by the affidavits heretofore set forth, to quash the service of the summons, defendant fully complied with the provisions of the statute pertaining to “a motion to dismiss the action” because “the court has not jurisdiction of the person of the defendant.”

In the absence of countér affidavits or any evidence other than the sheriff’s return, we think that the affidavits of Lucille Haverstuhl and Rudolph Bramberg filed in support of the motion to quash show clearly and conclusively that such summons was not left at the usual place'of abode of defendant with some member of his family “of the age of ten years or upwards.”

As has been seen, Lucille Haverstuhl, to whom the summons for defendant was delivered by the sheriff, stated in her affidavit that she was employed as a maid by Rudolph Bramberg at his home, 1201 North Oak Park avenue, Oak Park, Illinois; that during the period in which she was employed at the said address, defendant Gustav Bramberg never lived at that address ; that the last time she saw Gustav Bramberg at that address was in April, 1937, when he was a visitor there; that she was never employed by Gustav Bramberg in any capacity; and that she is not and was not a member of his family when the summons was delivered to her.

Rudolph Bramberg’s affidavit' stated that he is the son of Gustav Bramberg; that he resides and has resided for the past 8 years at 1201 North Oak Park avenue, Oak Park, Illinois; that said address is not now and never has been the usual place of abode of Gustav Bramberg; that during the past 8 years Gustav Bramberg never resided at that address and that the last time affiant saw defendant Gustav Bramberg was in April, 1937, when his father was a visitor at his home; and that Lucille Haverstuhl is a maid employed by affiant at the above address.

The facts asserted in these affidavits were not denied by the deputy sheriff who served the summons or by any other person by affidavit or otherwise, and, in our opinion, the service here was wholly insufficient to give the trial court jurisdiction of the person of defendant. Where the court has no jurisdiction its judgment is void. The defendant could not have been served legally in the manner attempted except at his own usual place of abode and by delivering a copy of the summons to some person of his family.

Plaintiff insists that, because defendant filed an answer to the complaint and participated in the trial of the cause after his motion to quash the service of summons had been denied, he cannot raise the question of jurisdiction now. Defendant, on the other hand, points out that under the provisions of the Civil Practice Act and the rule of the Supreme Court, heretofore set forth, he did not waive his right to contest the jurisdiction of the court by filing his answer and entering upon the trial after his motion attacking the jurisdiction of the court had been overruled. In the case of In re Estate of Rackliffe, 366 Ill. 22, the Supreme Court in passing upon this identical question said at p. 28:

“Under paragraph 3 of section 43 and section 48 of the Civil Practice act the appellant had a right to file a motion attacking the jurisdiction, together with such other motions as were desired to be made, and under rule 21 of this court she did not, by entering on the trial, waive the error in the refusal of her motion attacking the jurisdiction.
“ . . . By going to trial after the circuit court overruled her motion to dismiss the proceedings against her for want of jurisdiction, appellant did not forfeit her right, on appeal, to assign error as to the overruling of her motion or to try the question of jurisdiction of the probate and circuit courts.”

We are impelled to hold that the trial court erred in overruling defendant’s motion to quash the service of summons and that the court had no jurisdiction of the person of the defendant Gustav Bramberg.

In the view we take of this case we deem it unnecessary to consider the other points urged.

' The judgment of the circuit court is reversed as to defendant Gustav Bramberg as is the order denying his motion to quash the service of summons and the cause is remanded with directions to sustain his motion to quash the service of summons.

Judgment reversed and cause remanded with directions.

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


author: Mr. Presiding Justice Hebel

text:
    People of the State of Illinois, Defendant in Error, v. Frank E. Konkowski and Stephen Idzikowski, Plaintiffs in Error.
    Gen. No. 41,335.

      Opinion filed February 26, 1941.
    Grenville Beardsley, of Chicago, for plaintiffs in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher,

      Melvin S. Rembe, Thomas G. Bugan and William B. Crawford, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This action is in this court upon the defendants’ filing of a petition for writ of error in a criminal action wherein the defendants and each of them were found guilty by a jury of a conspiracy to cheat and defraud as charged in the indictment which is in part as follows: “G-rand jurors further present that Frank E. Konkowski and Stephen Idzikowski, on September 14, 1938, in Cook County, Illinois, unlawfully, fraudulently and deceitfully conspired and agreed together with each other and with divers other persons whose names are unknown, with the fraudulent and malicious intent unlawfully, wrongfully and wickedly to cheat and defraud one Edward Bozek of $600.00 of the value of $600.00, the property of Edward Bozek, contrary to law. ’ ’

The cause was tried before a jury and the court, and upon the conclusion of the hearing and after the jury had been instructed by the court, the jury returned verdicts in which the defendant, Frank Kon-kowski, was found guilty of conspiracy in manner and form as charged in the indictment, and his punishment was fixed at imprisonment in the penitentiary for 1 to 5 years and a fine of $1,500. As to the other defendant, the jury found Stephen Idzikowski guilty of conspiracy in manner and form as charged in the indictment, and his punishment was fixed at imprisonment in the penitentiary for 1 to 5 years. Defendants moved for a new trial and upon a hearing, after a continuance, the court entered judgments on the verdicts.

From the briefs filed in the instant case no point is raised upon the technical sufficiency of the indictment, but it is urged that it conclusively appears from the evidence that the $600 in question was obtained more than 18 months prior to the return of the indictment, that thereby the sole object of the conspiracy charged was completely effected and consummated, and hence that the prosecution was barred by the statute of limitations.

It appears from the evidence that Edward Rozek, in 1936, lived with his father, Paul, and mother, Josephine, and brothers Charles and Paul, Jr., a half block from defendant Idzikowski, who was a precinct captain in the organization headed by defendant, Frank Konkowski, as ward committeeman. Konkowski was at that time alderman of the city of Chicago, as well as a ward committeeman. Defendant Idzikowski had been a friend of the Rozek family for more than 10 years. On February 26, 1936, Charles Rozek made application to take the civil service examination to be conducted by the city of Chicago, to fill vacancies in the position of patrolman, commonly called policeman, and on March 10, 1936, Edward Rozek made a similar application. In April, 1936, Charles Rozek went to Idzikowski’s home and told him that if he didn’t pay money he had no chance to pass the examination, that Idzikowski was precinct captain and asked him what could be done. Idzikowski said he would see what he could do. Subsequently on May 7, 1936, Idzikowski took Charles Rozek to Konkowski’s office, and the next day came to the Rozek home and in the presence of Mrs. Josephine Rozek, Charles Rozek handed a wallet containing $600 to Idzikowski, who counted the money. Idzikowski then took Charles Rozek to Konkowski’s office. Idzikowski entered Konkowski’s private office and in a few minutes came out with Konkowski and introduced him to Charles, and Konkowski told him that he would be a policeman.

Several months later, in August, 1936, Charles and Edward Rozek, had a conversation with their parents in relation to Edward’s application, after which Edward Rozek went to Idzikowski and told him his folks would like “the money put up for my brother to be a policeman changed over to my name, because I was more interested in it than he was.” After Edward got his first notice he went with Idzikowski to Konkowski’s office, where Idzikowski introduced him to the aider-man and said, “This is the young fellow I want to get on the police force.” Konkowski told him to report to him when he got notices for the examination. In August, 1937, Edward Bozek went to Konkowski’s office and told him he had his notice for written examination, and Konkowski told him he had nothing to worry about, to just fill up the paper and he would take care of the rest.

A list of the successful candidates of the civil service examination in question was posted on September 14, 1938. Charles Bozek passed, and Edward Bozek failed.

The testimony of the parents substantially agrees with that of the two sons, Charles and Edward Bozek. Testimony was offered in respect of the efforts of the Bozek family to obtain the return of the $600, paid on May 8, 1936, and a visit to the Bozek home on April 16,1939, of Charles Weidebusch, who brought $400 after a conversation with Idzikowski, and his arrest there. When the money was paid back to Bozek, an officer of the law was present and seized the parties to the transaction. There is also in evidence the testimony as well as the documentary evidence offered on behalf of the State relating to the efforts to be appointed policemen in the same examination of Henry Lorenz, who paid $600 on May 28, 1936, John Miller, who paid $500 on, March 10, 1936, Louis J. Salaka, who paid $500 in April, 1936, Samuel Zacconi, who paid $500 on January 7, 1937, George Johnson, who paid $600 on November 4, 1937, and Frank Kita, who paid $500 on August 24, 1936; the manner in which the money was raised on behalf of each applicant, the failure of each to pass the examination when the result was announced on September 14, 1938, and it appears that efforts were made thereafter on behalf of each of these applicants, in part successfully, to obtain return of the money by them paid.

It appears from the evidence of Idzikowski on cross-examination with respect to giving money to Weide-busch, that he was sending the money to pay certain bills and when pressed admitted that he had taken the numbers of all the money and that he did not take a receipt from Weidebusch for the money. Weidebusch testified that this money was the money that he was returning to the Eozeks at the request of Idzikowski. There is testimony that Idzikowski and Konkowski discussed this question of returning money and Idzi-kowski said to Konkowski, “how about the money for those other applicants.”

The defendants argue that the conspiracy in question was not a conspiracy to obtain money by false pretenses but that it was a conspiracy directed against the public generally to corruptly influence the Civil Service Commission to certify them to positions whether they passed the required examinations or not. The People, by their representative, reply to this contention by saying that there may have been -a conspiracy to corrupt the Civil Service Commission but that there is no direct evidence thereof in the record, and that there is no statement on the part of Konkow-ski or Idzikowski that they were going to corrupt the Civil Service Commission. They told the complaining witness that they could put him on the police force and it is clear that this was intended to mean they could put him on whether he passed the examination or not. When asked for the proof of their ability to do this they said, “We will have this done and you will see it when the lists of the successful policemen are posted. You will be among the successful policemen.” Defendants say that other applicants offered money and asked that it be used in their behalf. The People point out that this is not a correct statement, referring to the testimony of other applicants contended to have paid money received by Konkowski, and contend that the evidence shows that these witnesses did not offer money to defendants and ask them to use it in their behalf, but that either one or the other of the defendants insisted that if the applicants wanted to get on the police force they would have to pay money, and that money was paid.

The State points out, in reply to defendants contention of fatal variance, that the defendants made no motion at the close of plaintiff’s case to take the case from the jury, nor did they raise any question as to the variance between the allegation and the proof. Nor did they move to take the case from the jury at the conclusion of the whole case, nor raise any question of variance. It was only after they had taken their chance of being found not guilty and the jury had found them guilty that they thought of raising any question of limitations. It is elementary that a question of variance must be raised at the trial. People v. Weisman, 296 Ill. 156. The State then concludes its argument upon this point that the question does not arise where the charge is a conspiracy to cheat and defraud a particular individual and the proof shows that this particular individual was cheated and defrauded. The fact that a number of other persons were so cheated and defrauded was shown by the State, not to prove a conspiracy against a class of individuals but to show guilty intent on the part of the defendants, that this was not a case where some mistake had been made but that defendants were generally taking money with the promise of putting men on the police force regardless of whether they passed an examination or not— when in truth and in fact they were not doing any such thing and could not do it.

The defendants urge that the statute of limitations in a conspiracy case is 18 months (Ill. Rev. Stat. 1939, ch. 38 sec. 631 [Jones Ill. Stats. Ann. 37.606]), and that when 18 months had elapsed from the obtaining of the money, the prosecution was barred by the statute of limitations, and maintain that the prosecution was clearly barred when the indictment was returned on May 19, 1939, 3 years after the money was obtained. The People’s theory is that the conversations which took place with the defendants after September 14, 1938, in relation to the return of the money paid, were overt acts in furtherance of the conspiracy, but defendant’s urge that such a theory is based upon a fundamental misapprehension. Defendants do admit, however, that a conspiracy is an agreement to effect an unlawful object, that each overt act in furtherance of the unlawful common object is a novation or renewal of the unlawful agreement, and that the statute of limitations begins to run from the date of the last overt act to effect the unlawful object, and contend further that here there could be no overt act to effect an unlawful object which had already been effected, urging that a conversation in relation to paying back money to one already defrauded, or restitution of a portion of the money of which the victim had been defrauded, has no reasonable or logical tendency to obtain the money of the victim, whose money had already been obtained years before. We will have to consider this question from the authorities as to whether the later rule is binding upon this court. There is no controversy as to the repayment and time of repayment of the money and the receipt thereof. The State contends that it was as much a part of the conspiracy and of the agreement that Eozek’s name should be on the list when posted as was the paying over of the money, and that the fact of defendants paying back the money shows this to be true. In the instant case it is urged that the fraud was not complete but was a continuing-one until the lists were posted.

In the criminal conspiracy case of Smith v. State, 47 Ga. App. 797, 171 S. E. 578, where the court of appeals of Georgia, discussing the question of when a conspiracy ends, after stating that on the expiration of a conspiracy any admissions by one of the conspirators can be used only against him, said; 11. . . but it is also true that proof that a crime has been committed does not necessarily prove the end of the conspiracy so as to render acts and declarations of co-conspirators, for the conspiracy may be kept open for various purposes; as is said in 1 Corpus Juris, 661; ‘While the commission of the crime to which a conspiracy relates will in many cases mark the accomplishment of its object and its consequent termination so as to exclude evidence of subsequent acts or declarations of one conspirator against another, this is not necessarily true. But the conspiracy may continue for various purposes, as, for instance, the securing of the proceeds of the crime . . . the division of such proceeds, the concealment of the crime, effecting an escape, the concealment of evidence tending to incriminate the conspirators, procuring witnesses to leave the State, bribing witnesses, influencing witnesses with respect to their testimony, the fabrication of evidence tending to exculpate the conspirators, the fabrication of a defense, or in any way avoiding prosecution or punishment; and where this is the case the acts and declarations of one conspirator are admissible against the others where made while the conspiracy continued, although after the actual commission of the crime.’ In Byrd v. State, 68 Ga. 661, it was ruled that the acts and conduct of one conspirator during the pendency of the wrongful act, not alone in its actual perpetration but also in its subsequent concealment were admissible against another conspirator.” As we have already stated, if there was a variance, it was not raised at the trial, and this brings us to the second argument of defendants that the testimony tends to prove a conspiracy on the part of witnesses on behalf of the People to corruptly influence the Civil Service Commission, and that if the proof did show a conspiracy to obtain money by false pretenses, the proof shows that such conspiracy was directed against the public generally and not against any particular individual. The proof, however, does not sustain this theory of the defendants.

The concealment of the crime until the posting of the lists and the payment of the money subsequently brings the case well within the rule as we pointed to when we called attention to the Georgia case (Smith v. State, 47 Ga. App. 797,171 S. E. 578) in which 16 C. J. 661, is cited.

It appears from the record in the instant case that the defendant Konkowski tried to conceal the fact of taking the money and tried to have two witnesses, Zacconi and Salaka, change their testimony and keep them from testifying at the trial. He told Louis Salaka that they couldn’t do anything to him, and that he could change his story so it wouldn’t look so bad for him (Konkowski) and also to say that the money was not given directly to Konkowski. Konkow-ski also asked Zacconi if they would change their stories and they said they would. Zacconi was there with Salaka and they agreed on a story that they were supposed to have paid this money outside the office to some person other than Konkowski, a stranger. Konkowski told them that he thought he had a good chance beating the case if they would do this for him and he would give them a position and pay them the balance of the money and that they wouldn’t get in any trouble if they would change their story. Our Supreme Court in passing upon evidence of this character in the case of People v. Fox, 269 Ill. 300, said: “ . . . The object of the introduction of this evidence was to show guilty knowledge on the part of plaintiff in error of the crime with which he was charged. Evidence that the accused has attempted to procure false evidence or to destroy evidence against himself is always admissible for the purpose of showing consciousness of guilt, and so attempts by persons other than the accused to bribe or to suppress testimony are admissible if the accused had knowledge of or was in any way connected with such attempts; and where the facts are shown, it is for the jury to determine, under all the facts and circumstances proven, whether or not the accused had knowledge of or was connected with the crime with which he is charged. ‘It has been held that a false theory of defense is some evidence of guilt. . . . The court may therefore charge that the false theory of defense indicting a consciousness of guilt may justify the jury in convicting the prisoner.’ (Underhill on Crim. Evidence, —2d ed.— sec. 121.) We think the evidence offered for the purpose of showing guilty knowledge was properly admitted, but the evidence as to plaintiff in error’s ‘kiting’ notes, and similar matters wholly disconnected from this case, should have been excluded.” From the circumstances as they appear in this record, the efforts of defendant Konkowski, endeavoring to have the witnesses change their testimony, is for the jury to pass upon and determine whether or not defendants had guilty knowledge of or were connected with the crime, and we believe that for that purpose this evidence was properly admitted by the court.

It is contended by these defendants that the authorities of Cook county chose to regard as unconstitutional the act requiring women to be called as jurors, and that defendants challenged the array and that the challenge having been denied that error was committed. It does not appear from the record that the authorities of Cook county chose to regard the statute as unconstitutional. It appears that the defendant Konkowski made the challenge through his attorney. The proper way to challenge the array is for the challenger to support his challenge by affidavits or proof of the illegality of the panel. The question was discussed in a late case, People v. Stamey, 306 Ill. App. 477, where the following language was used:

“In the case of People v. Hotchhiss, 347 Ill. 217, 179 N. E. 524, it was urged that the overruling of defendant’s challenge to the array of the petit jury panel and denial of motion for new trial was reversible error. There, the challenge to the array was signed by defendant’s attorney but was not sworn to nor supported by accompanying affidavits, nor was any evidence offered in its support. This failure to support the challenge either by evidence or by affidavits was a fatal omission and justified the trial court in overruling the challenge. People v. Stevens, 335 Ill. 415, 167 N. E. 49; Earll v. People, 73 Ill. 329; Borrelli v. People, supra. Where a challenge to the array of jurors is made, the challenger must support his challenge by affidavits or proof of the illegality of the panel. People v. Stevens, supra; Borrelli v. People, supra.” From the record as it appears here, the failure of the defendant to sustain his motion by proper evidence was a fatal omission and more particularly that the motion was made by his attorney, when the challenge should have been sworn to by the defendant. The trial court was fully justified in denying the challenge to the array of jurors. It is to be noted, however, that the amendment to the juror law making women electors eligible for jury service was held constitutional by the Illinois Supreme Court in People v. Traeger, 372 Ill. 11.

It is next contended by the defendants that the court erred in refusing to lock up the jury while the case was on trial, because of the fact that there was considerable publicity in the newspapers in respect to a former trial growing out of transactions similar to the one in the instant case. Nothing appears in the record as to when this trial took place, and no articles of any kind are set forth in the petition, which consists of generalities. The trial court said that in his humble opinion the case was like any other case and that both sides were responsible for giving out statements and discussing prejudices and therefore he would overrule the motion to lock up the jury. So far as we have been able to find, the jury was not in a position to learn of articles or matter which was prejudicial. Defendants rely upon the case of People v. Schneider, 362 Ill. 478, which might appear to overrule all cases on the subject that except in capital cases it is within the discretion of the trial court to either lock up the jury or let it go with proper admonitions as to any talk to outsiders. The People point to that same opinion, contending that upon a careful examination of this case it shows that it does not change the rule as above stated and as laid down in the case of Sutton v. People, 145 Ill. 279, and adhered to in People v. Stowers, 254 Ill. 588; People v. Foster, 288 Ill. 371; People v. Robinson, 299 Ill. 617, 624; People v. Casino, 295 Ill. 204. As appears from an examination of the Schneider case (supra), it does not overrule the former opinions of the Supreme Court. There is nothing that would indicate that the jurors were prejudiced by anything they read or heard in respect to defendant’s actions. We believe under the circumstances that the court did not err in denying the motion of the defendants to lock up the jury.

It is contended by defendants that the evidence does not show beyond a reasonable doubt that the defendants were guilty. The evidence was heard by a jury and defendants took the stand and testified. Defendants urge that in such conflict of testimony the record should be substantially free from error. There does not seem to be any dispute as to this proposition, but the evidence as appears from this record shows that the defendants are guilty beyond any reasonable doubt. It appears that the defendants admitted everything that the witnesses said about them except that any money was passed. Not only the complaining witness Edward Rozek testified to giving money to the defendants and was supported by his parents, but on the question of showing guilty knowledge and general scheme, a number of other witnesses testified to the same thing, who could not have had any desire to swear falsely in order to injure the defendants. There is no doubt but that Konkowski had promised to put these men on the police force and the jury found against the defendants as they upon the record were bound to do. Special attention is called to the testimony of Idzikowski who, when cross-examined in respect to giving money to Weidebusch, said he was sending the money to pay certain bills and when pressed was bound to admit that he had taken the numbers of the money and that he did not take a receipt from Weidebusch for the money. Weidebusch testified that this money was the money that he was returning to the Rozeks at the request of Idzikowski. There is also testimony that the defendants discussed this question of returning money and Idzikowski said to Konkowski, “How about the money for those other applicants.”

The evidence in the record was properly a question for the jury to pass upon, and the jury having passed upon the question, the court properly passed upon the motions that were offered and properly entered judgment on the verdicts.

There is also complaint made of the instructions given. We have examined them but they seem to be proper and supported by the authorities, and we are of the opinion that the court in giving the instructions as they appear in this record fairly instructed the jury.

There is also some complaint made of the closing arguments of counsel. We have, however, considered the question and we are of the opinion that there was no error in the court’s ruling upon the argument that-was before the jury. From a careful consideration of the facts as well as the complaints that have been made by these defendants, we are of the opinion that the court did not err in ruling upon the questions before the court. As we have stated, it appears from the record that the defendants were guilty beyond a reasonable doubt of a conspiracy to cheat and defraud the complaining witness 'of money upon the promise that his name would appear on the civil service list showing that he was qualified and fitted to be appointed to the police force. This fraud was perpetrated and became known when the list was published on September, 14, 1938, and Edward Bozek’s name did not appear thereon, and prosecution was commenced well within the statutory period of limitations which commenced to run from the posting of the list.

For the reasons stated, the judgment of the court is affirmed.

Affirmed.

Denis E. Sullivan and Burke, JJ., concur.


text:
    Anchor Realty and Investment Company, v. William E. Rafferty et al. Olive A. Drumm, Appellant, v. Anchor Realty and Investment Company, Appellee.
    Gen. No. 41,449.

      Opinion filed February 26, 1941.
    Rehearing denied March 10, 1941.
    Charles F. McElroy, of Chicago, for appellant; Maurice M. Briggs, of Chicago, of counsel.
    Hughes & Swanstrom, of Chicago, for appellee; Frank H. Klaas, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The Anchor Realty and Investment Company, of St. Louis, a Missouri corporation, brought suit to foreclose a mortgage on certain real estate in Chicago, title to which was in defendants William E. and Gertrude C. Rafferty. Later Olive A. Drumm was joined as additional defendant. Mrs. Drumm filed an answer and counterclaim against the plaintiff, claiming that she is the rightful owner of the Rafferty mortgage, and of 220 shares of stock of plaintiff corporation, which were purchased by the plaintiff at a public sale from the Mississippi Valley Trust Company on September 11, 1933. Mrs. Drumm had previously borrowed certain money from the Trust Company and had given a note, with said stock and the Rafferty note and mortgage as collateral. After several renewals of the note the Trust Company refused to renew again. As she was unable to pay, the bank sold her collateral, and the plaintiff purchased it. Mrs. Drumm claimed that the purchase was tainted with fraud, and asked to have a constructive trust decreed in her favor, both of the stock and of the Rafferty note and mortgage.

The case was heard by the trial court without a jury; the counterclaim was dismissed for want of equity, from which order the counterclaimant prosecutes this appeal.

From the facts as they appear, William L. Balsón, father of Mrs. Drumm, counterclaimant herein, died testate in 1914; by his will, he created a trust of all his property, which trust included a spendthrift clause. Upon the death of his widow, it became necessary to distribute the property. E. J. Bean, a St. Louis attorney, devised a plan to form a corporation to handle the property and liquidate it. It also appears from the evidence that for several years prior to the death of the widow, E. J. Bean had been employed as the attorney for the beneficiaries of said trust, except Lewis Balsón (son) and the widow, to bring an accounting against the trustees who were Lewis Balsón, Ella Balsón, the widow, and Mississippi Valley Trust Company. Settlement negotiations were pending at the death of the widow, Ella Balsón; thereafter on or about July 17, 1929, an agreement was entered into by the beneficiaries, reciting that by Ella Balsón’s death, the “trust was and is terminated and it is desired by the surviving Trustees ... to make distribution and settlement of the balance of the property and assets in their hands . . . .” Pursuant to said agreement, the surviving trustees distributed said trust estate to the beneficiaries by deed, and the beneficiaries then conveyed their respective interests to Anchor Realty & Investment Company, a Missouri corporation, in accordance with said settlement agreement because it was impractical that seven children and two grandchildren hold title to the real estate. The corporation was formed, having a capital stock of 3,920 shares, of which Lewis Balsón was to receive 320 shares, the five daughters 600 shares each, and two granddaughters 300 shares each. Mr. Bean had not received any compensation for his services in connection with the settlement with the trustees and for other services in connection with the formation of the corporation and because there was little personal property distributed to the beneficiaries, it was agreed that certain of the children give Bean certain shares of stock for his past services. Accordingly all of the children, except Lewis Balsón, each transferred 50 shares of stock and the two grandchildren transferred 15 shares each, making a total of 280 shares which were transferred to Bean, which he accepted in payment of his fee. Naturally, Bean received dividends along with the other stockholders. He was elected president, treasurer and director of said corporation and has held those offices since then, for which services he charged no salary.

In August, 1931, the United States gave notice of a levy of a tax in the amount of $15,723 as taxable income against said Anchor Corporation arising from alleged profits or gain on the sale of certain property to Joseph G-aravelli for $170,000. Bean was authorized by the board of directors to oppose said tax. Bean appeared as attorney for said Anchor Corporation before the collector of internal revenue in opposition to said tax and caused the same to be reduced to $11,488, which was paid under protest. Thereafter, on September 13, 1932, Bean filed suit in the United States District Court at St. Louis, Missouri, and upon trial the court entered a judgment in favor of said Anchor Company, which was appealed to the United States Circuit Court of Appeals, where the judgment of the district court was affirmed. Bean tried the case in both courts, made arguments, and collected the judgment in the amount of $13,150, from which he was paid a fee of $3,750 for his services, which was authorized by the other two directors.

In May, 1931, E. J. Bean negotiated for Mrs. Drumm a $5,500 loan from the Mississippi Valley Trust Company in St. Louis, evidenced by her promissory note and secured by her 220 shares of Anchor stock and the Rafferty note and trust deed foreclosed upon in this action. Bean received $250 for his services. Subsequently, on demand from the bank, Mrs. Drumm executed an assignment of the dividends from said pledged stock as additional collateral. There were subsequent renewals and Bean handled the renewals to accomodate Mrs. Drumm, but he was not retained.

In December, 1932, Mrs. Drumm came to St. Louis with a Mr. Goldsmith who asked Bean to cash a check signed by Mrs. Drumm for $125. Bean went with Goldsmith to the bank where Bean indorsed the check. The check was not honored by the bank on which it was drawn because of no funds. Thereafter, Mrs. Drumm gave Bean another check dated December 19, 1932, on the same bank for the amount of the original check, plus protest fees, which was also dishonored and was protested. Bean then drew a draft on Mrs. Drumm which was not paid. After this time, it is admitted that Bean had no further negotiations or contacts with Mrs. Drumm, nor did Mrs. Drumm request Bean to attend to further renewals.

It further appears that Bean, as the representative and on behalf of the Anchor Realty and Investment Company, arranged with the Mississippi Valley Trust Company to procure a loan for the purpose of purchasing this collateral, giving the note of the Anchor Company and depositing the identical collateral to secure it. The price bid at the sale was $145.82 in excess of the amount due on the note, plus interest and costs, and that much in excess of the next highest bid. Bean, thereupon, garnished the bank and thus procured payment to himself of the amount due on the protested check of Mrs. Drumm.

It also appears from the evidence that on January 23, 1933, a new note was given to the bank, which was a renewal of her former note, which became due April 23,1933. Bean had nothing to do with this note. When this note matured the bank corresponded with Mrs. Drumm, and after several months of useless negotiations proceeded to sell the collateral. . The bank advertised the sale to be held on September 11, 1933, and sent a copy of the advertisement to Mrs. Drumm on August 29, 1933, which letter was not returned to the bank. The bank also notified Bean who cut out the advertisement from the paper and showed it to Lewis Balsón, at whose suggestion Bean put the notice in an envelope and mailed it to Mrs. Drumm. Mrs. Drumm had knowledge of the sale before September 11, 1933. A meeting of the board of directors of the Anchor Company was held September 7, 1933. The directors at that time were Lewis Balsón and E. J. Bean. Mrs. Hayes had been a. director but had returned to California and had submitted her resignation. There is a conflict of testimony as to whether written" notice of this meeting was sent to Lewis Balsón. Both Bean and Balsón were desirous of preventing an outsider from becoming a stockholder. The directors passed a resolution authorizing Bean to bid the sum of $5,500 on behalf of the corporation. At the sale the Anchor Company bid the sum of $5,310, being $145.82 more than the amount due on the amount bid at the sale and took the collateral. A loan was negotiated by the Anchor Company at the bank of a sufficient amount to pay the bid, which loan was secured by the purchased collateral. This loan has since been paid by the Anchor Company, together with $801.67 interest.

As we have already indicated, after this sale, Bean brought an attachment suit and garnisheed the bank for the surplus, which it held for Mrs. Drumm. In this manner, Bean collected the debt due him on account of the dishonored check of Mrs. Drumm.

The account of cross complainant, Mrs. Drumm, is as follows:

May 28, 1931---Mrs. Drumm obtained loan from Mississippi Valley Trust Co. of . . . $5,500.00 Secured by the following collateral :
(1) 220 Shares Anchor Realty
(2) Principal note of the Raf-f ertys ’ in the sum of $5,500.00
February 1, 1930 — Rafferty paid $3,000.00, reduc- • ing his $5,500 note to $2,500, which, as reduced, was extended for 2 years (or until 2-1-34), which is the note being foreclosed.
At this time another note of the Raff ertys’ for $3,000 (secured by trust deed on other Chicago Property) was deposited with the Mississippi Valley Trust Company as collateral for Mrs. Drumm’s note.
September 7, 1933 — Meeting of directors of Anchor Realty Co. — resolution authorizing Bean to bid “not in excess” of $5500.00 for Drumm collateral.
September 11, 1933 — Sale held — Bean bid in for $5310.00, thereby buying the following collateral:
(1) 220 shares of Anchor Realty
(2) $2,500 balance on Rafferty note (herein being foreclosed) .
(3) $3,000.00 Rafferty note (secured by trust deed on other Chicago property).
In order to procure the money to make the purchase, the Anchor Realty & Investment Co. borrowed $5310.00 from the Mississippi Valley Trust Company and gave its note therefor, secured by the identical collateral of Olive A. Drnmm which it had just purchased.

The proceeds of the sale were applied by the Mississippi Valley Trust Co. as follows:

Amount received at sale................$5310.00
Applied on principal............$5,057.07
Advertising cost ............... 61.22
Federal Transfer tax .......... 8.80
Interest ....................... 37.09
Balance remaining on hand..............$145.82
November 20, 1937 — Anchor Realty Co. paid $1,120.00 on its note of $5310.00, leaving balance of $4190.00.
December 27, 1937 — Rafferty paid $3100.00 (in full of principal and interest of his $3000 note), which payment was credited on Anchor Realty $5310.00 note, leaving balance of $1,090.00 on said Anchor Realty note.
July 13, 1938---Anchor Realty paid $200 on its $5310.00 note.
August 15, 1938--Anchor Realty paid balance of its $5310.00 note. At this time the Mississippi Valley Trust Company turned over to the Anchor Realty Company, the following collateral:
(1) 220 shares of Anchor Realty.
(2) $2,500 (balance) Rafferty note, which is being herein foreclosed.
April 1, 1934---Dividend of 20^ per share paid; 220 shares at 20fS... $ 44.00
Sept. 4, 1934---Dividend of $6.00 per share paid; 220 shares at $6.00.. 1320.00
Sept. 16, 1936---Dividend of 50^ per share paid; 220 shares at 50^---- 110.00
Total.... $1474.00
April 1, 1940---Dividend paid April 1, 1940, on said 220 shares ......... 880.00
Computation
Advanced by Anchor Realty & Investment
Co. for purchase of Drumm collateral...... $5,310.00
Interest paid by Anchor Realty & Inv. Co.. 879.21
Total paid by Anchor............ $6,189.21
Credits;
December 7, 1937, By cash from Raf-ferty in full of principal on his
$3,000.00 note.....$3,000
Dividends allowed:
April 1, 1934............................$ 44.00
Sept. 4, 1934............................. 1320.00
Sept. 16, 1936............................ 110.00
1,474
Dividend paid April 1, 1940 880 5,354.00
Amount that Anchor Realty actually paid out in excess of credits • $ 835.21

The counterclaimant, appellant in this case,' has suggested that her account with the Anchor Realty & Investment Company had not been credited with a number of payments that had been made on account of the note that was signed by her. However, it is to be noticed from an examination of the figures that are in this record that all the amounts that were received in payment of the note were received subsequent to the sale, at which the Anchor Realty & Investment Company purchased and received the collateral.

The counterclaimant contends that the evidence shows a violation by E. J. Bean of his fiduciary relationship to her, by which he made use of knowledge gained by him as her attorney, to his own financial advantage and to her detriment; and that the purported resolution under which he acted in purchasing her collateral for the Anchor Realty & Investment Company was void because (a) the meeting was not called nor held according to law, and (b) Bean was disqualified to vote on the resolution by reason of the fact that one of its purposes was to further his own financial interests.

In discussion of the questions that have been called to our attention, it appears that the counterclaimant contends that .there was a fiduciary relationship between herself and the counterdefendant existing at the time of the collateral sale because she claims that there was such a relationship existing between herself and E. J. Bean; and that since Bean was an officer and director of the Anchor Company, that said Anchor Company therefore had notice of the relationship. The facts as appear in this record are that E. J. Bean procured a loan for Mrs. Drumm in May, 1931, from the Mississippi Valley Trust Company, for which he received a fee of $250 for his services. It appears from the argument that we have before us that Bean obtained the loan, his fee was paid and that ended the relationship of attorney and client. Mrs. Drumm renewed her note several times and Bean saw the bank on occasions in that connection, but merely as a favor and accomodation. However, after the incident of the bad check that was issued by Mrs. Drumm in Decern-ber, 1932, it is admitted that there was no communication of any kind between Mrs. Drumm and Bean. Mrs. Drumm did not look to Bean for any advice or assistance in connection with the renewal note dated January 23, 1933, or in connection with her difficulties when that note matured on April 23, 1933. She had all of her dealings direct with the bank. The sale did not take place until September, 1933, and she was, therefore, dealing directly with the bank for at least 9 months — as contended by counterdefendant; she did not write Bean or tell the bank that Bean would represent her. In spite of this she contends that there was a fiduciary relationship existing. The burden of proof in this respect is on her. (Continental Ill. Nat. Bank & Trust Co. v. Continental Ill. Nat. Bank, 87 F. (2d) 934.)

The counterclaimant further contends that she was entitled to notice of the termination of the relationship of attorney and client and in support of this contention cites authorities on the question of withdrawing from a pending case. The • counterdefendant admits that these authorities state the rule of law, but states that in this case there was nothing to withdraw from. Bean was employed to get the loan and when he did so, his work was done — the matter of his employment had ended. “The relationship of attorney and client is terminated by the accomplishment of the purpose for which it was created . . . .” Thornton on Attorneys at Law, vol. 1, p. 248. Mrs. Drumm had a man named Goldsmith who handled her affairs, who wrote letters for her in connection with her affairs, and who picked up her bank statements. He would turn the bank statements over to her if he were so inclined. That is how she explains not getting any notice about the bad check or the draft that Bean drew on her. If her agent — as is suggested — had notice, then she, too, must be held to have had notice. It is contended, therefore, by the counterdefendant, that the relationship of attorney and client terminated when the loan was procured.

It does not appear from anything in the evidence that Bean used any knowledge or influence that he had acquired while acting as her attorney. He did not acquire anything except the payment of his debt from Mrs. Drumm when he instituted the garnishment proceeding to collect the amount of money that was due him upon the dishonored check.

When we come to consider the law that is pertinent on a question of the character that we have before us, the court in Harrison v. Murphey, 39 Okla. 548, in denying recovery to the plaintiffs, said: “There was no fraud; no false statements; no overreaching' of plaintiffs ; ... It cannot be that an attorney, in the absence of fraud or an abuse of confidence in some way is forever barred from acquiring property, honestly and in good faith, solely because it had formerly belonged to a person who at some time in the past had been his client.” This language, of course, could apply with equal force to the present case. It does not appear from anything which we have in this record that Bean was a party to this litigation or that in his actions in appearing at the sale of the property in question he acted other than in behalf of the Anchor Realty & Investment Company; and, of course, there. was no obstacle to Mrs. Drumm to meet this obligation when it matured. There would have been no trouble if she had paid her loan to the Mississippi Valley Trust Company. It appears from the record that Mrs. Drumm had notice of the sale; that both Bean and Mr. Walter of the bank sent her notice. Mrs. Drumm testified that “Mr. Goldsmith very likely got it” and “I didn’t know . . . that the bank was going to proceed with the collection of the note. I knew one or two days before the sale . . . .’’It does not appear that it was through the fault of the bank or the Anchor Company or any of its officers or directors that she did not attend the sale or have someone represent her. She did not request Bean to represent her and had no contact with him for more than 9 months prior thereto. It is impossible to reach the conclusion — as contended by the counter-claimant — that Bean should have represented her. There was nothing required of Bean to finance Mrs. Drumm in purchasing the collateral, nor was there a duty on the Anchor Company to extend credit on behalf of one of its stockholders who was in financial difficulties with the bank.

Counter claimant contends that there was a fiduciary relationship existing because Bean had represented her and other beneficiaries in securing an accounting in the Balsón Trust. It appears from the evidence that after a settlement was made, the assets of the trust were distributed and the trust terminated according to its terms. The beneficiaries, including Mrs. Drumm, transferred stock to Bean for his fee and Bean, therefore, had to wait until dividends were declared from income or sale of assets until he could realize anything. It further appears that he was elected a director and officer and the by-laws provided that the officers would be paid no salaries without the approval of the board of directors. The payment that Mr. Bean received was the stock that was issued to him at the time of the organization of the Anchor Company as a corporation. But the counterclaimant contends that these facts show Bean is still representing her in connection with the trust. As we have already indicated — and as suggested by counterdefendant— Bean was paid when he got the stock — that was his fee. The fact that he might have to wait until he could liquidate it, has no bearing.

The counterclaimant argues that because she gave Bean a bad check that Bean became antagonistic with her and devised a method not only to satisfy this indebtedness but also to deprive her of her entire holdings in the Anchor Company as well as the pledged mortgage. The only evidence that appears in this record is that the directors of the Anchor Company, Bean and Balsón, “thought it would he to the advantage of the Company to purchase the stock . . . .” Lewis Balsón testified as witness for the counterclaim-ant, his sister, “I was without funds to help her, and fearing' that some outsider would step in and buy the stock. I thought the best way would be to have the corporation buy it . . . .”

The counterclaimant in her brief sets forth figures to show that the Anchor Company received property more than twice the value of her total indebtedness. The Anchor Company paid more than $6,000 for principal and interest. The Rafferty mortgage is figured at the bid price plus the deficiency, but there is no evidence of the value of either the property or the deficiency — nor is there any evidence that the fee paid to Bean in the income tax suit was illegal as stated, and the question cannot be litigated in this suit because Bean is not a party to the action.

It is contended that Mr. Bean and Mr. Balsón, as officers and directors occupied a fiduciary relation to counterclaimant, and a case is cited by counter-claimant stating the rule that directors of a corporation occupy the position of trustees for the collective body of stockholders. That is the rule that applies where all or a majority of the stockholders are so involved as to justify applying such a rule. However, “. . . a director is not a trustee in a technical or unlimited or universal sense. Moreover, he is not a trustee as to individual shareholders, so as to preclude him according to- the weight of authority from dealing with individual shareholders in respect to the sale or purchase of their shares.” 19 C. J. S., sec. 761. A director or officer of a corporation may be a trustee for stockholders for certain purposes, but certainly not for all purposes and not to the extent of protecting stockholders in- their dealing with third persons and where a stockholder pledges some of the corporate stock to secure the stockholders’ personal indebtedness. “The relation of shareholders to a corporation is contractual .... There is no fiduciary relation between shareholder and corporation such as is found in all express trusts.” Bogart on Trusts and Trustees, vol. 1, 55 sec. 16. It must be admitted, of course, that for certain purposes a corporation, its officers and directors are trustees for the stockholders, but not for all purposes. “The officers of a corporation are trustees for the stockholders as a body with respect to the business and property of the corporation, which is under their control and management for the benefit of stockholders generally, but an officer has no control over the shares of the individual stockholder and is not a trustee for such stockholder with respect to his stock. Officers of a- corporation may purchase the stock of stockholders on the same terms and as freely as they might purchase of a stranger.” Bawden v. Taylor, 254 Ill. 464, 467. ‘ ‘ The rule as to a director is stated in Cook on Stock and Stockholders, (sec. 320) as follows: ‘There is no confidential relation between him and a stockholder, so far as a sale of the stock between them is concerned, and so long as he remains silent and does not actively mislead the person with whom he deals the transaction cannot be set aside for fraud.’ ” Hooker v. Midland Steel Co., 215 Ill. 444.

It does not appear from the record that Mrs. Drumm was defrauded. No representations were made to her as to the value of her shares by the officers and directors of the Anchor Company, nor did they withhold any information from her. The Mississippi Valley and Trust Company sold the collateral at a public sale where anyone could bid. Mrs. Drumm could have bid at the sale but she did not elect to do so. The directors of the Anchor Company were of the opinion that it would be beneficial to the corporation to have these shares rather than have some outsider bid them in, and authorized a bid up to $5,500. This did not in any way prevent anyone, including Mrs. Drumm, from bidding at the sale. As we have stated, Mrs. Drumm did not attend the sale or have anyone to represent her there.

It is also contended by the counterclaimant that because Mr. Bean was her creditor and procured the satisfaction of the debt by having the corporation bid more than the amount due the bank, was such an act that the corporation should not be permitted tó retain the stock. As suggested by counterdefendant — if there was anything wrong in including this amount in the bid, it is for the present stockholders to complain and not Mrs. Drumm, the debtor.

A further suggestion that is offered by counter-claimant is that the meeting of the board of directors held on September 7, 1933, was invalid, her theory being that because the Anchor Company acquired the legal title by its purchase at the collateral sale a constructive trust arises. Counterdefendant contends that this argument is inconsistent, and that the sale cannot be good and bad at the same time, and suggests that counterclaimant is not trying to set aside the sale.

It is further urged that the Anchor Realty and Investment Company had the power to purchase the collateral without the necessity of the resolution of the board of directors; that it had power in its charter to purchase its own shares and the mortgage, and, therefore, did not need a resolution of its board of directors to give it any power; and that the Mississippi Valley Trust Company wanted a resolution to show authority to make the loan and not authority to purchase. The only personal interest that any of the directors had was Bean’s claim against Mrs. Drumm and because the corporation bid enough to leave a small surplus subject to garnishment she wants to have the meeting declared illegal. There is no evidence that she ever made an attempt to do so before, nor that any of the other stockholders attempted to have the transaction set aside. Mr. Bean took np the matter of the purchase with the majority of the stockholders and sent them a notice of the sale. Any complaint should come from the present stockholders and not Mrs. Drumm, and any action would be at law against Bean and not against the corporation.

There is a further complaint by counterclaimant that the circumstances that the bank was not willing to renew Mrs. Drumm’s note, although it was willing to loan the Anchor Company over $200 more with the same collateral, indicates collusion. So far as we have found from the record, there is not a scintilla of evidence to substantiate such an inference. On the contrary, the bank was having difficulties with Mrs. Drumm long before the sale. The two officers of the bank who handled the matter testified that Mr. Bean never requested that the bank sell the collateral. The loan was an impersonal transaction with the bank and it took steps to collect. The bank was familiar with the assets of the Anchor Company and apparently considered the company a good credit risk. Mr. Bean made inquiry from the bank if it would make a loan in the event the corporation decided to bid and Bean was later notified that a loan could be arranged. The Anchor Company purchased the collateral at a public sale. It paid for the same with its check, and gave its note in the regular course of business to the bank to obtain the money. That note has since been paid, including interest thereon.

Counsel for counterclaimant directs our attention to the provisions of the will of William L. Balsón, who died on the 3rd day of December, 1914, and contends that this court should declare a trust to be in existence, which trust — as suggested — had terminated by its own terms; and further contends that this court is also to declare that a spendthrift trust exists under the will of the late William L. Balsón. The will provided that the trust was to terminate and the estate be distributed upon the death of Ella Balsón, widow, who died subsequent to the death of her husband. The provisions of this will that provide for a trust are found in the fifth paragraph, which provides in effect for a trust and that if testator’s wife should survive him, the trust should continue for and during her natural life. Using the language of the last will and testament, “In the event of the death of my wife before my decease, or in the event of the death of my wife after my decease and before five (5) years from the date of my death, then and in that event said trust shall continue to the end of the period of five (5) years from the date of my death. After the death of my wife the trustees shall apportion the net income of the trust estate and pay one share to each of my surviving children and one share per stirpes to any descendants of any of my deceased children. On the termination of said trust as aforesaid the trustees shall divide the then trust estate into as many shares as necessary and convey, transfer, deliver and pay one share of the principal of the then trust estate to each of my then surviving children and one share per stirpes to any descendants of each of my children then deceased.”

It appears from the record in this case that the widow passed away on February 6, 1929, and that the estate was distributed to the children and grandchildren — as we have indicated in the statement of facts — and subsequently they conveyed their interest to a corporation that was organized and formed for the purpose of liquidating the assets of the estate. Therefore, from the provisions of the will, it would seem that the trust had ceased upon the death of the widow; and, therefore, the distribution that was had justified the division of the trust property between the children and grandchildren. Under the circumstances as we find the facts in this case, the trust was at an end at the death of the widow, and did not carry with it the spendthrift trust provisions of the last will and testament of William L. Balsón. We are, therefore, of the opinion that there was no continuation of the trust after the distribution was made by the trustees to the beneficiaries, and that the shares of the counterclaimant were not impressed with a spendthrift trust as contended by her.

After having considered the questions that were called to our attention, we are of the opinion that the court in passing upon the counterclaim of Olive A. Drumm was justified in dismissing this counterclaim for want of equity.

For the reasons stated the court’s order should be affirmed.

Affirmed.

Denis E. Sullivan and Burke, JJ., concur.


text:
    People of the State of Illinois ex rel. David Wilson, Defendant in Error, v. David Mills, Plaintiff in Error.
    Gen. No. 41,462.

      Opinion filed February 26, 1941.
    Ditchburne & Lounsbury, of Chicago, for plaintiff in error; Harry S. Ditchburne and Nicholas J. Bohl-ing, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of. the court.

The defendant was charged, by information filed in the municipal court of Chicago,- with feloniously, unlawfully, wilfully and maliciously destroying a front porch on premises alleged to be located at 4814 North Bernard street, in the city of Chicago, a-nd it was further alleged in the information that the “goods and chattels of David Wilson of the value of $15.00” were destroyed without the consent of said David Wilson. Defendant pleaded not guilty, waived a jury, and the case was tried by the court without a jury. Defendant was found guilty in manner and form as charged in the information, value of the property-destroyed found to be $14.50, and judgment on the finding was that defendant was ‘1 guilty of the criminal offense of unlawfully and maliciously destroying or damaging the property of another without the consent of the owner thereof.” Defendant was fined $75 and costs, and now prosecutes this writ of error.

The evidence presented by the plaintiff consisted of the testimony of Harold Wilson, son of David Wilson, David Wilson, the prosecuting witness, and his daughter, Pauline Wilson, and 2 photographs. Defendant’s evidence consisted of the testimony of the wife of the defendant and that of the defendant himself.

The facts, as they are called to the attention of this court, are that the defendant was charged with maliciously destroying the front porch on the premises of the complaining witness. Defendant lived with his family at 4818 North Bernard street, and David Wilson, complaining witness, lived with his family at 4814 North Bernard street, which was immediately adjoining. On March 7, 1940, defendant tore or broke down portions of the front porch of the complaining witness’ house which, defendant contended, encroached over the line of defendant’s property. Harold Wilson, son of complaining witness, testified that he heard a loud noise, looked out of the window and saw defendant using a sledge hammer knocking away the pickets and tearing down the posts. That defendant knocked down the posts and destroyed the pickets, threw the debris into the yard, and said to the witness “there you are with your law.” The complaining witness, David Wilson, testified that the porch fence was a 40-foot fence made of fancy pickets joining the top and bottom rails and in removing the posts defendant had cracked some of the concrete, and that the value of the posts was $10 and the rails and pickets $65 to $75. Pauline Wilson, daughter of complaining witness, testified similarly to the act of the defendant in breaking down portions of the porch.

The defendant, in his testimony, limited the amount of property removed to “four posts and banister,” and swore that the same posts that were claimed to have been broken were later placed back where they had been. Defendant testified “that is all I removed. I removed not a thing from his side of the line.” Defendant denied making the statement to Harold Wilson of “there goes the law” or any such statement.

As the trial progressed, defendant’s counsel was asked by the court to state the theory of the defense, defendant’s counsel stating that the porch was over defendant’s property line and that if the prosecuting witness’ posts were over defendant’s line, defendant had a right to remove them. The court stated that a case had been made out and that the defendant had no reason for taking the law into his own hands, and said that “even if the.porch was over his line, . . . his remedy would be to go into court and ask to have those posts removed.”

During the trial, the court was shown three orders in case numbered 36S 10765, of the superior court of Cook county, entitled Mills v. Wilson, which orders were not introduced into evidence nor made part of the record, excepting that the court said with reference to the first order, “this finds encroachment there and to remove all that stuff. ” It is clear from the record that the property line had been the subject of civil litigation for some time past. The defendant contends that the trial court erred in denying the defendant an opportunity to present evidence as to the respective property lines of defendant and complaining witness and in holding as a matter of law that it made no difference whether or not the property alleged to have been destroyed was over the line of defendant’s premises. The defendant contended that the trial court deprived him of an opportunity to show by a survey made August 21, 1939, that the porch was over his property line.

It appears, as suggested by defendant in error, that the prosecuting witness and not the defendant was in peaceable possession of the property, which was not newly erected property but had been there since 1935, signifying that defendant acquiesced in its erection. Furthermore, the orders entered in the civil suit appertaining to the encroachment show that the claim of defendant had been litigated.

Defendant cites the case of Sattler v. People, 59 Ill. 68, which involved a prosecution for maliciously breaking down a fence in process of erection by the prosecuting witness, across a lot of ground in the actual possession of defendant, and which he claimed he was entitled to as lessee. The Supreme Court, in holding that a refused instruction — to the effect that if the jury believed from the evidence that the defendant was in possession of the premises and paying rent, they should find him not guilty — should have been given, said as follows:

“The statute in regard to malicious mischief does not apply to cases of this kind, where opposition is made by a claimant of premises of which he is in actual possession to the erection of a fence across the same without his consent.” Defendant in error contends that the Battler case (supra) cannot stand as an authority for the present case, and that the case of Koch v. People, 71 Colo. 119, 204 Pac. 332, also cited by plaintiff in error, likewise shows that a new fence, supposedly to replace an old one, was built by the complaining witness beyond the line of the old fence on a line claimed by him, the prosecuting witness. It appears in the last-mentioned case that the property line had been in dispute for years. Defendant in error urges again that the cases cited are of no aid to this court in the instant case, since the dispute in the instant case as to the property line had been litigated. The defendant was not in possession nor was there any threat to the peaceable possession of his property. It is, therefore, obvious — urges the defendant in error — ■ that the facts are not even remotely similar in the two situations. There are other cases cited, but the cases just considered seem to be pertinent on the questions involved.

The People contend that the record shows that an objection was made to the introduction of the survey, which defendant sought to introduce in evidence, on the ground that there was no showing that it was true and correct and for the further reason that the man who made it was not present as a witness to testify in reference to it. It further appears that no ruling was made on the objection and nothing appears to show that the defendant attempted to make proper proof. The survey not being a public record it was necessary to make the adequate proof as to its correctness before it could be considered for introduction. ■ It is urged that even if the proof was adequate, still the survey would not have been received in evidence, and cite the case of Commonwealth v. Taylor, 65 Pa. Super. Ct. 113, in support of their contention, which was a prosecution for destroying a gate of the prosecuting witness over a right of way claimed by the defendant. There it was held that evidence of defendant’s title to the way was inadmissible if it appears that the destruction of the gate was not essential to the use of the right of way by defendant. The case of State v. Pike, 33 Me. 361, is further cited, as holding to a like effect, which was a criminal prosecution under the statute for wilfully and maliciously destroying property of a person without his consent. There the court held that it is immaterial whether the property came rightfully into the possession of the defendant or not, and evidence on that point is not admissible.

It is further contended by the defendant in the action that there was a fatal variance between the information and the evidence in the case. Two photographs are in evidence, one showing a quantity of lumber on the ground, near the scene of action, undoubtedly taken immediately after the episode ■ complained of. The second photograph shows an apparently side view of the porch, and the porch is intact except for the absence of whatever was removed from that section immediately in front of the camera. The porch was not destroyed, the defendant argues. The statute on malicious mischief (sec. 425, ch. 38, Smith Hurd Ill. Ann. Stat. [Jones Ill. Stats. Ann. 37.378]) makes it an offense to maliciously destroy, injure or deface any building or fixture attached thereto. The information charges only one of the three acts — destruction. Having laid the charge upon the act of destroying, the defendant urges that' proof of injuring or defacing is not sufficient, and that the proof showed, if anything, that nothing but injury was accomplished. However, when we come to examine the facts in this case, it is apparent that this man attempted to destroy the porch by knocking off the parts as testified to. It appears from the record that defendant acted with malice and that there was no justification for him forcefully disturbing the peaceable possession of the property of the prosecuting witness. This conclusion is more forcefully shown in Carter v. State, 18 Tex. App. 573, wherein it was held that “one may be guilty of malicious mischief in pulling down a fence even though he claims title if another was in peaceable possession.” It was also held that “the title to the property upon which the pen was built is of no importance. The inquiry should be: Was Beckwell in the quiet and peaceable possession of the fence broken or pulled down? 9 9

In answer to defendant’s contention of fatal variance between the information and the evidence, the plaintiff contends that this complaint is not properly before this court for the reason that it was never raised in the trial court. In the case of People v. Ascey, 304 Ill. 404, and in Dyer v. People, 84 Ill. 624, our Supreme Court held that a claim that there was a material variance between the indictment and the proof cannot be raised for the first time in a reviewing court.

It is a rather unusual contention that is made by the defendant- — -that it is necessary upon a charge of destroying a porch that before the defendant could be guilty the evidence must show that there was a complete and total destruction. It is evident that defendant destroyed property which was a part of this porch, which was in the peaceable possession of the complaining witness. From the facts as they appear in this record, the court was justified in finding him guilty and assessing a fine of $75, as was done in this case.

From this record we are of the opinion that the court did not err in the punishment inflicted on this defendant as guilt was proved beyond a reasonable doubt. There seems to be no doubt that defendant wrecked a part of the porch by the use of a heavy sledge hammer.

For the reasons stated the judgment is affirmed.

Affirmed.

Burke and Denis E. Sullivan, JJ., concur.