text:
    People of the State of Illinois ex rel. Oscar Nelson, Plaintiff, v. West Town State Bank, Defendant. Margaret O’Neil Lawson et al., Appellants, v. Charles H. Albers, Appellee.
    Gen. No. 40,287.

      Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    John O. Wagner, of Chicago, for appellants.
    William J. Flaherty, of Chicago, for appellee; John F. Cashen, Jr. and James Conger, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree entered in the circuit court on the intervening* petition of Margaret O’Neil Lawson in reference to her claim as such petitioner. A claim was filed by her against the insolvent estate of the West Town State Bank. Petitioners’ claim was referred to a master who found that petitioners were the owners of improved property on West Madison street and had entered into a lease with the West Town ’ State Bank, on April 9, 1919, for a period of 45 years; : that the lease terminated April 30, 1964.

It appears from the petition and evidence that the lessee agreed to pay all taxes, special assessments, insurance and all other charges that might be placed against the said premises, and in addition thereto, agreed to pay the lessor a rental of $1,600 per year over and above any and all charges against the property or cost of operation by virtue of said lease, so the lessor would have a net profit each year from said premises of $1,600; that the lease provided that the lessee was to remodel the building' then on the premises and the building was to be complete in every detail whenever the lessee vacated the premises, and the lease also provided that the lessee would pay 7 per cent interest on any moneys expended by the lessor that should have been paid by the lessee; that the lease further provided that the lessee would pay the lessor’s attorney’s fees if same were necessary to enforce any clause of the lease.

The petition and answer were referred by the court to a master in chancery who found that the bank had consummated the lease by taking possession of the premises and by virtue thereof had remodeled the premises in question and also occupied adjoining premises and that the bank had cross-connected the two properties so that one water system, heating system and light system operated for the benefit of the two buildings and that thereafter when the bank failed and abandoned the premises it was necessary for the lessor of the building in question to have the light, heat and water disconnected from the adjoining building.

It further appears that on July 21, 1931, Thomas B. Roberts was appointed receiver of the West Town State Bank which had ceased doing business. The receiver continued to occupy the premises and paid the rent until December 31, 1931.

It further appears that on December 1,1931, an order was entered by the court on the petition of the receiver to disaffirm the lease for the property in question. This order was entered without notice to petitioner. The lessor contested the said petition, after hearing of its entry, but the court entered an order over the protest of the lessor that the receiver of the West Town State Bank disaffirm the said lease, which disaffirmance was to be effective December 31, 1931. Thereupon said receiver paid the rents, taxes and special assessments, etc., up to and including December 31, 1931.

The lessor and petitioners, appellants here, then took possession of the premises involved on January 1, 1932. The master further found that on January 1, 1932, and subsequent thereto the lessor-petitioner used all possible diligence to rent the premises to the best advantage and paid all costs to operate the property; that after allowing all credits for receipts of rents the lessor suffered a loss from January 1, 1932 to December 31, 1936, in the sum of $7,846.85, and, in addition thereto the sum of $250, paid as a commission to a real estate man for obtaining a lease for a store.

The master further found that from January 1,1932, to December 31, 1936, the cost to the lessor in connection with the premises, such as taxes, maintenance, etc. amount to $1,374, per year; that the gross receipts per year from said property was $1,920, leaving a net difference of $546 per year.

The master further found that the lessor was entitled to a net rent per year of $1,600 and that the lessee was to pay all costs of operating and maintaining the building* and to pay all taxes or other charges against the building; that therefore the lessor suffered a net loss per year of the difference between $546 per year realized and the $1,600 the lessor should have received, or a net loss from January 1, 1932 to December 31, 1936, of $1,054 per year, which makes a net total for this period of $7,846.85.

The proof of loss tendered by petitioners and not denied by the respondent bank is that the loss or damages each year amounts to $1,054, which for the remaining 27 years of the lease, being the period from December 31, 1936 to April 30, 1964, would amount to $28,458.

The master further found that the $708.66 claimed as damages for altering the building* could not be recovered because no claim was set forth in the petition filed by the petitioner.

The claimant’s theory of the case is that the rents for the period from January 1, 1932, to December 31, 1936, are for damages suffered and sustained in the past and are in no way anticipatory damages; that the rents for the period from 1936 to 1964 presents an entirely separate and distinct question of law and that the law on this question is also in favor of the petitioner.

Respondent’s theory of the case is that the petitioner is not entitled to damages because the lease makes no provision for damages in case of an abandonment of the premises by the lessee.

The petitioner divided her claim into three divisions, namely, — first, for $708.66 damages paid out by her to alter the building remodeled by the West Town State Bank. As to this claim the master found that the petitioner is not entitled to recover because no such claim is set forth in the petition filed herein by petitioner.

The second division of petitioner’s claim is for damages from the termination of the lease to December 31, 1936, in the sum of $8,096.85.

The third division is for anticipatory damages for the balance of the term in the sum of $28,458, based upon the experience of the first five years.

The master’s report came before the court, and the objections were made exceptions thereto, and the court after full argument, entered a decree on the intervening petition of Margaret O’Neil Lawson. In substance the decree allowed some of the exceptions and overruled others, the effect of which was that:

“4. That petitioners should be, and they hereby are, allowed a claim against said West Town State Bank in the amount of $708.66, as their damages for the moneys paid out by them to alter the building in question and certain fixtures affixed thereto after the surrender of said building by said Receiver in order to put the same in a tenantable condition.

“5. That said petitioners should be, and they hereby are, allowed a further claim against said West Town State Bank in the amount of $200.00 as reimbursement for the costs and attorney’s fees expended and incurred by them in enforcing the covenants, agreements, terms and provisions of the lease which is the subject matter of this suit.

“6. That said petitioners should be, and they hereby are, allowed a further claim against said West Town State Bank in the amount of $250.00 as reimbursement for the commission paid to a real estate agent for his services in obtaining a lessee for the premises in question.

“7. That all other claims and liabilities asserted by said original petition and by said first amended petition and by said second amended petition, or any one of them, are hereby denied, and said West Town State Bank and the respondent, Charles H. Albers, Receiver of West Town State Bank, are under no liability to petitioners therefor.

“8. That the claims for $708.66, for $200.00 and $250.00, hereinabove allowed, are general claims against the estate of said bank and are entitled to no preference or priority over other general claims against estate of said bank and should be paid by said Receiver pro rata in due course of administration, out of the assets of said bank applicable to the payment of claims of like kind and character.

“9. That the costs of this proceeding, incurred to date, except the fees and charges of said Master in Chancery, shall be borne by petitioners; that two-thirds (2/3) of the fees and charges of said Master in Chancery, Leonard C. Reid, which includes court reporter fees, shall be paid by the petitioners herein, and one-third (1/3) of said fees and charges shall be paid forthwith by the respondent, Charles H. Albers, Eeceiver of West Town State Bank, out of the assets of the estate of West Town State Bank.”

The primary question here to be determined is whether or not anticipatory damages may be recovered where the lessee abandons the premises. To determine this question is not without its difficulties. Different courts in different jurisdictions have taken various views relative to the subject as has been done in this State.

In Smith v. Goodman, 149 Ill. 75, the Supreme Court held that a lessor has a valid claim for damag’es in case of abandonment of the lease by the lessee which may be proven against said estate. In that case, Meyer & Sons Company, a corporation, made a general assignment for the benefit of creditors. About three months prior thereto, said corporation became the lessee in a lease for a term beginning September 1, 1889, and ended April 30, 1892. When the assignment was made, the assignee took possession and paid rent to April 30, 1890, at which time the assignee vacated the premises, which was exactly two years prior to the expiration of the term specified in the lease. Shortly thereafter the assignee vacated the premises and the lessor filed a petition asking that the lessor have leave to re-rent the premises and that the assignee pay the difference between the amount specified in the lease and any deficiency which might arise from the reletting.

In the Smith case, supra, the court entered an order to prevent unnecessary loss to the estate, in which order it directed that both petitioner and assignee should secure a tenant for the remainder of the term at the highest and best possible rent. This, without prejudice to the rights of either party.

On October 16, 1890, almost five months after said order of May 28, 1890, just referred to, was entered, on petition of the assignee, the court ordered that the premises be rented from October 6, 1890 to April 30, 1891, at $125. Some misunderstanding evidently arose, because later the lessor, under order of court, rented the premises from February 1, to May 1, 1891, at $125 per month and from May 1, 1891 to April 30, 1892, the remainder of the term, at $250 per month.

On February 16, 1891, lessor filed a supplemental petition setting forth that lessor had received no rent from May 1, 1890, the day after the assignee had vacated the premises, to February 1, 1891, when the new lease just mentioned, began. The petition asked for $2,250, being $250 per month from May 1, 1890 to February 1, 1891, and the sum of $375, being the difference between the rent called for by the new lease, from February 1, to May 1, 1891, at $125 per month, as above stated, and the rent reserved in the old lease. The lower court dismissed the petition and the supplemental petition, but that ruling was briefly reversed by the Supreme Court, which held:

“Where a lessee makes a general assignment for the benefit of creditors, any damages resulting to the lessor for a breach of the covenants of the lessee will become a claim against the assignee, which may be proven against the estate the same as other claims, but such claims will not be entitled to priority over other claims. ’ ’

The difference between the Smith-Goodman case and the case at bar is that in the former case at the time of the hearing a lease had been made at a certain figure for the balance of the term and that the measure of damages was provided for in the lease, which was the difference between the amount received upon a reletting and the rent reserved, whereas, in the case at bar leases had been made for a period of five years. In the said Smith-Goodman case, the lease provided for a shorter term. In the instant case no stipulation appears in the lease as to what amount would be considered as damages upon abandonment of the lease as was set forth in the Smith case. However, we do not think such omission should prevent recovery of damages, if the same were actually suffered.

In making his report the master relied upon the case of Kroch v. B. G. Operating Co., 286 Ill. App. 301, which was a case for damages upon the abandonment of a long term lease. The court in substance sustained the position of the objector in that case and stated that the claim was for future rents and not for damages. The court found that the lease in the Kroch case called for graduated monthly instalments; that the sum provided for in that lease to the expiration of the term equaled exactly the amount of Kroch’s claim; that it was Kroch’s own theory to claim the full amount of the rent to accrue in the future and not for damages for breach of the lease.

The court further found in the Kroch case that the master made no finding, nor is there any statement in the court’s order, indicating* that the amount allowed Kroch is for damages for breach of the covenants of the lease; also, the court stated that counsel’s earnest insistence that the superior court was fully warranted in allowing both claims upon the theory of an anticipatory breach merits consideration, holding that the doctrine of anticipatory breach of contract does not apply to leaseholds.

In the instant case the evidence shows the lease is a contract partly executed and partly executory. Damages have resulted and in the future further damage may or may not result, according to the uncertainties of the future. We think the damages sustained are principally a question of proof. The damages which had been sustained up to the time of the hearing can be proven with certainty. What the future damages may be is very speculative.

In the case of Filene’s Sons Co. v. Weed, 245 U. S. 597, a case that came before that court on a writ of certiorari upon a bill for instructions filed by the receivers of William S. Butler & Company, incorporated, the receivers were appointed upon the prayer of a creditor, assented to by the corporation, in a bill brought for continuing the business until the assets could be applied in satisfaction of the company’s debts. Instructions were asked as to the amount to be paid to the petitioner, Wm. Filene’s Sons & Company, under a lease of the premises that William S. Butler & Company occupied. The lease covered five parcels of land held by the petitioner, also as lessee, and ran for the terms, less one day, of the respective original leases, which expired at different dates, from December 30, 1917, to February 28, 1921. It provided for a re-entry in case of a failure to perform any covenant, of bankruptcy, etc., or of a receiver being appointed and not discharged within 90 days. These proceedings were begun on November 7, 1912. On December 5, 1912, the receiver elected not to assume the lease and left the rent due December 1, unpaid; on December 9, the petitioner re-entered in pursuance of leave granted by the court, and on December 17, made demand upon the receiver for the sum that it alleged to be due. The receiver filed a petition for instructions on April 7, 1913. On September 30, 1913, the petitioner filed a formal claim, the time for proving claims not having-expired.

The circuit court of appeals seems to have considered also that the filing- of the bill had the same effect as a petition in bankruptcy in stopping claims that like this were not provable at that date.

Continuing in the Filene case, the court said:

“We are driven to different conclusions. In the first place, whether a letter showing that the payment of $20,000 a year was a substitute for a bonus of $340,000 was-admissible or not, United States v. Bethlehem Steel Co., 205 U. S. 105, 120, we are of opinion that on the face of the lease and the figures it was dealt with as a separate item and as the inducing consideration for the sublease, the right to the whole of which was earned when the sublease was made. The summary of the clauses referring to it that we have given shows that the whole amount was to be paid in any event, whether the overleases were cancelled, or a part of the rent was abated, or the leases were terminated, as well as if they ran their full course. It is true that in the reddendum the words ‘as rental’ might be construed to embrace the later clause ‘together with a further sum of twenty thousand dollars,’ but the sentence does not compel that construction and the dominant intent and obvious fact seems to us to override any argument upon that ground. See Cox v. Harper, [1910], 1 Ch. 480. Bent issues from the land, is not due until the rent day, and is due in respect of the enjoyment of the premises left. The twenty thousand dollars a year was to be paid whether the premises were enjoyed or not, upon a personal covenant that created a present debt, with no contingency except those possibly and lawfully accelerating the time in which it was to be paid.

“We perceive no ground that would justify the rejection of the petitioner’s proof for the whole sum subject to the discount agreed. Certainly the fact that the termination of the lease happened after the filing of the bill has no such effect, although the sum was not presently payable until then. When a statutory system is administered the only question for the Courts is what the statutes prescribe. But when the Courts without statute take possession of all the assets of a corporation under a bill like the present and so make it impossible to collect debts except from the Court’s hands, they have no warrant for excluding* creditors, or for introducing supposed equities other than those determined by the contracts that the debtor was content to make and the creditors to accept. In order to make a distribution possible they must of necessity limit the time for the proof of claims. But they have no authority to give to the filing of the bill the effect of the filing of a petition in bankruptcy so as to exclude any previously made and lawful claim that matures within a reasonable time before distribution can be made. Pennsylvania Steel Co. v. New York City Ry. Co., 198 Fed. 721, 740, 741. Of course it does not matter that the claim was perfected by the petitioner’s act, after a default in the rent. The receivers would not, and Butler & Company could not pay it, so that all agree that the petitioner’s course was the prudent and only possible course to take, as it was the course that was contemplated by the covenant in the lease. Wilder v. McDonald, 63 Ohio St. 383, 397.

“The rest of the claim is for damages ultra the twenty thousand dollars a year — the difference between the rental value at the date of entry and the rent reserved, less the amount received under the twenty thousand dollar clause. This also was contracted for and we see no reason why it should not be paid. The contract was not that all the rent for the term should become presently due, it was not for rent at all, but was a personal covenant that liquidated the damages upon a footing that was familiar and fair. [Citing many cases]. The claim divides itself into two items: one from January 1,1913, until April 1,1913, when the whole premises were relet, put by the master at $39,829.80 ; the other from April 1, 1913, to the end of the term, put at $34,433.47. The other disputed item for expenses of reletting is disallowed.”

As before stated, we do not see how in a case of this kind an allowance can be made in the present settlement of assets of the bank of amounts to become due in the future, and we think the language used in the case from which we have just quoted, is applicable, wherein the court said: “In order to make a distribution possible they must of necessity limit the time for the proof of claims. But they have no authority to give to the filing of the bill the effect of the filing of a petition in bankruptcy so as to exclude any previously made and lawful claim that matures within a reasonable time before distribution can be made.”

We think it would be unreasonable to postpone the final distribution in this case for over 30 years in order to find out how much would be coming to all the claimants. We are quite convinced that such a postponement would result in confusion and possible injustice.

In the instant case we think the trial court should have allowed all damages proven up to and including the time of hearing, and provided they should be paid in the order of distribution. Future damagus, if any, because of their uncertainty and lack of proof, must await their accrual. In the meantime a distribution of the assets of the receivership estate would be justified.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded with directions to enter a decree in harmony with the views herein expressed.

Decree reversed and cause remanded with directions.

Hebel, J., concurs, and Burke, J., takes no part.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Martin Shapiro, Plaintiff in Error.
    Gen. No. 40,295.
    Opinion filed March 29, 1939.
    Grenville Beardsley, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This cause comes before us on a writ of error from the municipal court wherein the defendant was found guilty of attempting by false pretenses to obtain $200 from Riverview Park Company, of doing overt acts in furtherance thereof and having failed and been intercepted in such attempt.

Motions for a new trial and in arrest of judgment were overruled and the defendant Martin Shapiro was sentenced to jail for six months.

The theory of the case on behalf of the People is that defendant falsely, fraudulently and designedly represented to officers of Eiverview Park Company that the claim for damages for personal injuries of one Sylvester Bialkowski was false and fraudulent, in that Bialkowski pretended to suffer from an injured spine, but had only been shaken up and bruised in an accident and to make it appear his injuries were serious had been taken to a hospital and placed in a plaster cast, that in reliance upon these representations the officers of the park gave $200 to the defendant, who put the money in his pocket and started to leave the office of the company; that he was arrested as he left the office, and the said money taken from him.

Defendant’s theory is that when, in reliance upon his representations, officers of Eiverview Park Company handed $200 to him and he placed the money in his pocket and walked away, defendant was guilty of either obtaining money by false pretenses or of no offense, depending upon the truth or falsity of his representations ; that the vital element of failure, interception and prevention was not proven and is completely disproved by the evidence; that his trial was unfair, the record disclosing that he was prejudiced in his substantial rights by unfair questions and statements of the assistant State’s attorney who prosecuted the case, and by erroneous rulings of the trial judge.

As to the evidence presented, there does not seem to be much difference between the position taken by the State and the defendant. Plaintiff’s brief states that three police officers arrived at the Eiverview Park Company offices prior to 2:30 p. m. on January 11, 1938, Sergeant Hannigan stayed in Mr. Botts’ office; that Mr. Botts is controller of the company,- that the other officers went into the next office where there was a thin partition between; that defendant came to Botts’ office at about 2:45 p. m. and Eckert introduced him to Botts and Hannigan and told them what the defendant had proposed; that defendant said he had talked to Eckert about the $75,000 case by Bialkowski and that he had some information that might be of value; that defendant said he wanted $200, that it was worth more, but that he would leave it up to them. Botts told him he didn’t know whether they wanted to give him anything for the information because his story might not be true. Defendant said, ‘ ‘I will take a chance on telling you the story. ’ ’ Defendant then related how, the morning after the accident at Riverview Park he took a list of those alleged to have been injured; that he called on Bialkowski at his work, as investigator, and that night took him to the Will Rogers Memorial Hospital. Bialkowski was put to bed and treated for back injuries in the six room suite they had in the hospital, under the charge of Dr. Kushner, where accident cases were to be built up. Bialkowski was put in a cast for five or six weeks although the X-ray showed no fracture of any kind and when the cast was removed Bialkowski slept with a nurse from whom he contracted gonorrhea, which produced “all kinds of bladder or kidney complications.” He further told them that although the X-ray showed there was no back fracture they were going to claim there was; that one Jackson was to get a third of any judgment procured and the hospital, the boy, and he, defendant, were to each get a sixth; that he, the defendant, told Bialkowski that there probably would be $5,000 in it if the case was built up, to which the boy agreed. After they argued back and forth about the price, Botts went to the vault and came out with $200 in five dollar bills, the funds of the Riverview Park Company, which he gave to the defendant in the belief that what he told him was correct. Botts testified he intended that defendant should keep the money.

When defendant was about to leave, Officer Hannigan gave a signal to the other officers and they came in from the other room where they were listening to the proceedings and arrested the defendant and took the money away from him.

The only question presented for our consideration is whether or not the complaint which charged an attempt to obtain money under false pretense, is sustained by the proof of actually obtaining* the money, which made it a completed transaction.

The evidence shows that defendant obtained the money, put it in his pocket and the police officers testified that they took it away from him after he had accepted it and had put it in his pocket and was walking away.

The case of People v. Lardner, 300 Ill. 264, cited by the People does not seem to sustain their contention. In that case it was said:

“The rule that a defendant may be convicted of a lesser offense which is included in an indictment for a greater crime cannot be applied to sustain a conviction for an attempt to commit larceny with which the defendant was charged where the evidence shows that the offense was complete, as the statute defines what constitutes. an attempt and includes as an essential element the failure to consummate the crime.

“If one feloniously takes the goods of another from their accustomed place, although he is detected before they are actually carried away, the crime of larceny is complete, and where a shoplifter, after taking goods from a show-case and putting* them in his overcoat pocket, runs away, leaving his overcoat lying on another show-case, the crime is larceny though his possession was brief and the goods were not removed from the store.”

In the instant case the offense of obtaining money under false pretenses was complete when the money was obtained, put in defendant’s pocket and reduced to his possession, and as the Supreme Court said in the case of People v. Miller, 278 Ill. 490, at page 505: “As used in both statutes the word ‘obtain’ means to get hold of; to gain possession of or to acquire. Under the Confidence Game statute the offense consists of the getting hold of or gaining the possession of money or property by means of some trick or device or swindling operation in which advantage is taken of the confidence of the victim reposed in the swindler. . . . Under the False Pretense statute, whoever, with intent to cheat or defraud, shall designedly, by color of any false token in writing, or by any other false pretense, obtain from any person any money or personal property is guilty of obtaining money or property by false pretenses. ’ ’

It therefore follows that, under the law, evidence proving a completed transaction of obtaining money under false pretenses, does not support a charge of attempted obtaining money under false pretenses, as is charged in the complaint. The conviction cannot stand and the judgment is hereby reversed.

Judgment reversed.

Hebel and Burke, JJ., concur.


text:
    Louis Kondrath, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,393.
    Opinion filed March 29, 1939.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Besa, L. Louis Karton and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    James H. Turner and Lloyd T. Bailey, both of Chicago, for appellee; Joseph W. Bailey and J. Theo. Kiggins, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

A judgment was entered in the superior court in favor of plaintiff for the sum of $7,500 and against defendant city of Chicago. The suit was one for personal injuries sustained by plaintiff while walking in the dark through a platted street at or near South Aberdeen and West 108th streets at a point where the streets would intersect, if the streets had been completely finished.

The injury to plaintiff occurred about one o ’clock on the morning of June 19, 1936, when plaintiff stepped into a certain uncovered sewer manhole, thereby sustaining the injuries of which he complains. The cause was tried before a court and jury.

No point is raised on the pleadings.

Plaintiff’s theory of the case is that he sustained the injuries complained of solely through the negligence of the defendant in permitting a certain sewer manhole at the intersection of South Aberdeen and 108th streets to be and remain uncovered and in a dangerous condition for a long space of time prior to the happening of the accident.

Defendant’s theory of the case is:

First, that the city is not liable for the injuries sustained by the plaintiff in stepping into a sewer manhole out in an open prairie at or near the hypothetical intersection of two streets which were not extended or improved, nor open to public use or travel; that the extent of the use made of the so-called path leading to and from the baseball diamonds and the wooded picnic grounds was not at the instance of the city of Chicago, but was by the invitation or permission of the owners of the private property in that particular area with which the city of Chicago could not interfere;

Secondly, assuming that the city may be liable, the plaintiff was guilty of gross negligence in going into a prairie studded with high weeds, tall grass and shrubbery about 1:00 o’clock on a dark night without any kind of light; and

Thirdly, that the city is not guilty of a violation or neglect of any duty in failing to keep an imaginary street in a reasonably safe condition for public travel, and that where there is no breach of a local duty there can be no negligence as charged in plaintiff’s complaint. ■

The photographs and maps referred to as exhibits, do not appear in the abstract, nor are they in the record.

Both parties to this controversy in referring to the place where the accident occurred, use the terms “hypothetical” or “imaginary” streets. The evidence shows that these streets, so-called were in contemplation or process of development. They had been platted and the city had accepted the platting and, as evidence of their ownership, had taken possession of them and had improved them to the extent of putting in a sewer. It is true the city had not as yet erected street signs, nor had they put in sidewalks, pavement, curbing or gutters or other improvements which comprise a completely finished street. However, there is no doubt that the one improvement which it did install was not so guarded by the city as to prevent the improvement from becoming a menace to persons walking over that portion of the street where the manhole was located, and part of the sewer. The street was in use by the public and was much traveled by persons walking to and from the playground and athletic fields close thereto. It was not the lack of other improvements' which caused or contributed to the accident, but the failure of the city to properly maintain the improvement which they had already installed, to wit, the sewer.

It is contended on behalf of the city that plaintiff was guilty of contributory negligence in having crossed the street where the accident occurred at night without having carried a light. Be that as it may, we think the evidence sufficiently establishes that he had a right to go on this street, and whether or not he should have carried a lig’ht with him and his failure to have one would be contributory negligence, was a question of fact for the jury. We believe under all the circumstances the jury was justified in finding that plaintiff’s failure to have a light was not the proximate cause of the accident. Whether or not plaintiff was guilty of contributory negligence was a matter, under the law, for the jury to determine and we think the jury was justified in their decision. The injuries were severe and permanent and the amount of the judgment was not excessive.

For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, J., concurs, and Burke, J., takes no part.


author: Mr. Justice Burke

text:
    Alma Le Pitre, Appellant, v. Chicago Park District, Successor to and Substituted Defendant for South Park Commissioners, Appellee.
    Gen. No. 40,284.
    Opinion filed March 29, 1939.
    Wiley W. Mills, Oscar E. Oarlstrom and Robert C. Pierce, all of Chicago, and Gf. E. Nelson, for appellant; Clarence Wm. Idarius, of Chicago, and Royce A. Kidder, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, and John O. Rees, for appellee; Joseph B. Fleming, Philip A. Lozowtck, David Jaoker, John M. O’Connor, Jr., all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On January 16, 1932, plaintiff filed her declaration in the superior court of Cook county against the South Park Commissioners, a municipal corporation, and charged that on February 2, 1930, she suffered personal injuries while riding in a motor vehicle being driven by her husband in Leif Eriksen drive. Issue was joined, and on May 27, 1936, the case was called for trial. The trial judge on his own motion, ordered the plea withdrawn and proceeded to rule on a demurrer that had theretofore been overruled. He sustained the demurrer and entered judgment for costs against plaintiff. Plaintiff appealed and this court, in Le Pitre v. Chicago Park District, 290 Ill. App 345, held that the action of the court was unwarranted. The judgment was reversed and the cause remanded. The case was redocketed and again came on for trial. Plaintiff filed an amended declaration in which the Chicago Park District was substituted as defendant. At the close of plaintiff’s evidence, the court directed a verdict of not guilty and entered judgment against plaintiff, to reverse which this appeal is prosecuted.

Leif Eriksen drive, sometimes referred to as the “Outer Drive,” is constructed on land formerly covered by the waters of Lake Michigan, and is located wholly within Grant and Burnham Parks, which, at the time of the accident, were under control of the South Park Commissioners, and are now under the control of the Chicago Park District. The evidence shows that at the time of the accident complained of, there was no light on the lightpost erected on a cement base in the middle of the drive at 30th street, and that there were no lights on the drive for approximately 20 minutes thereafter. There was also evidence that the lightpost in the center of the thoroughfare was hazardous, and that the drive was heavily used as a traffic artery and carried IT. S. routes 12, 20 and 41. The base of the unlighted post was approximately 2% feet in diameter. The car in which plaintiff was riding was driven by her husband. As the car entered Lincoln Park at Diversey avenue, the street lights were on, and as it was driven south on Michigan boulevard, the occupants observed that the streets were lighted all the way to 7th street, at which point, the car turned into the outer drive. There is evidence that the outer drive was dark from 7th to 30th streets, where the accident occurred; that plaintiff and her husband had never been on the outer drive south of Soldier Field; that the automobile in which plaintiff was riding struck against the lightpost and the concrete base where 30th street touches the drive; that both plaintiff and her husband were injured and taken to Michael Reese Hospital, which is located in that vicinity; that plaintiff’s injuries were serious and that she remained in the hospital until March 10, 1.930. The accident occurred between 5:30 and 5:45 p. m. The lights went on between 5:50 and 6:05 p. m. There is evidence that at the time of the accident, it was dark and misty, and that three lanes of automobiles were moving south at about 20 miles an hour, with their headlights and windshield wipers in use, and that the automobile in which plaintiff was riding* was in the inner lane, the one nearest the middle of the street, • following another car. Leif Eriksen drive is a 70 foot two-way drive, the west half for southbound traffic and the east half for northbound traffic. At 31st street there was a viaduct, and the drive, at a point approximately half way between the point of the safety island and 31st street, separated and became two driveways. The west driveway turned at a slight angle to the west and proceeded south under the viaduct at 31st street. That driveway was used exclusively for southbound traffic. The east driveway inclined upward to meet the grade of 31st street and carried traffic northbound on the outer drive as well as southbound traffic desiring’ to turn west on 31st street. On the safety island opposite 30th street, extended east, there was a sign directing through traffic to the south under the pass and traffic for 31st street to the east drive.

Defendant asserts that the South Park Commissioners constituted a public corporation which was an instrumentality of the State created for the sole purpose of performing essential governmental functions, and hence that it was the duty of the court to direct a verdict for the defendant.

Plaintiff insists that the defendant was a voluntary municipal corporation, having equal dignity within its scope with the city of Chicago, and with exclusive power and authority over the public thoroughfare known as Leif Eriksen drive, and with the exclusive burden to keep and maintain the same in a safe condition for public travel. Plaintiff states that when the defendant undertook to operate an electric light system and furnish the necessary transformers, equipment and fixtures for distributing electric current for lighting a public street, it was acting in a ministerial, private, corporate capacity and became liable in tort for injuries resulting* from negligence in the furnishing of such lighting service; also that when the defendant voluntarily assumed and undertook the exclusive control and maintenance of Leif Eriksen drive, it was acting in a corporate, private, ministerial capacity and was bound to use reasonable care to keep and maintain the said public drive free from dangerous obstructions and in a safe condition for public travel, and that negligence in the performance of such duties required it to respond in damages to the one injured. Plaintiff urges, therefore, that negligence of the servants and agents of the corporation in the discharge of its corporate ministerial functions, renders the municipality liable in tort to the persons injured thereby. The South Park Commissioners was established by the act of February 24, 1869, which provides that the land and premises acquired by the commissioners “shall be held, managed and controlled by them and their successors as a public park, for the recreation, health and benefit of the public, and free to all persons forever, subject to such necessary rules and regulations as shall from time to time be adopted by said Commissioners and their successors for the well ordering and government of the same.” (Laws of Illinois 1869, Private, Vol. 1, page 360.) Our courts recognize that in tort liability there is a difference between a municipal corporation proper, such as a city, village or town, and a municipality which is created for the sole purpose of performing functions which are essentially governmental. The West Park Commissioners, a municipal corporation, was organized at the same time and under a similar act as the South Park Commissioners. In Stein v. West Chicago Park Commissioners, 247 Ill. App. 479, this court said: “There is a line of decisions, of which several have been cited by counsel in their briefs, to the effect that a city maintaining a public playground or park is liable for the acts of its officers or agents in the course of their employment. There is another line of decisions holding to the contrary. The well-defined distinction between cases of this character necessarily resolves itself into the question of whether or not, in the management and operation of a public park, a municipal corporation is acting in a private or governmental capacity. Under the powers granted to the West Chicago Park Commissioners, they have no functions or duties other than those expressly provided for by the act, and those duties pertain only to the running and management of its park system. It is a municipality carved out of the city of Chicago, and created by the legislature for a definite and specific purpose, not only for those living within the West Park district but for the public generally, and its duties involved the question of providing outdoor spaces for the inhabitants of the city and State, for the benefit of the guneral public, and for its health, comfort and enjoyment, and in this regard we believe that its duties bring it well within the definition of a municipal corporation acting for the benefit of the public generally. ’ ’

In Devine v. South Park, Commissioners, 182 Ill. App. 402 (Abst.), the court had before it the record of an action based upon the alleged negligence of the South Park Commissioners in maintaining a swimming pool in Palmer Park, a small park under the jurisdiction of the commissioners. A demurrer was sustained and an appeal followed. The question presented for determination was whether the commissioners, as a corporate body, is liable for negligence in connection with the administration of its powers and duties. We answered in the negative and affirmed the judgment, citing as authority People ex rel. Bransom v. Walsh, 96 Ill. 232; Wilcox v. People ex rel. Lipe, 90 Ill. 186; Brandt v. West Chicago Park Commissioners, 162 Ill. App. 371; Backer v. West Chicago Park Commissioners, 66 Ill. App. 507. In the Backer case, supra, this court said:

“The West Chicago Park Commissioners is a municipal corporation, having certain limited powers granted to it by the legislature. The members of the Board of West Chicago Park Commissioners are agents, by whom, in part, the people of the State carry on the government. Their functions are essentially political and concern the State at large, although they are to be discharged within the town of West Chicago. ’ ’

Plaintiff argues that the Illinois cases on which defendant relies are distinguishable by reason of the fact that Leif Eriksen drive is controlled, operated and lighted by the commissioners as a voluntary act, the same as the city streets are controlled by the corporate authorities of the city. A careful study of the reported cases and of the text books convinces us that the same rule that has been laid down by our Supreme and Appellate Courts as to the liability of municipal corporations for the maintenance and operation of swimming pools, applies to the maintenance and operation of driveways, lighting systems and safety islands by defendant. (See Gebhardt v. Village of La Grange Park, 354 Ill. 234; Love v. Glencoe Park District, 270 Ill. App. 117.)

Since this case was argued orally, plaintiff, pursuant to leave given, cited as additional authority the recent case of Costello v. City of Aurora, 295 Ill. App. 510. William Costello, a boy, was playing in a public park and playground maintained by the city of Aurora. A cannon ball which, with other cannon balls, had been imbedded in concrete on a pyramid, became loose and fell upon his finger, crushing it, so that a part of the finger had to be amputated. The city insisted that in the operation of the park, it was acting in its governmental capacity and was not liable for the injury. The Appellate Court concluded, however, that the city of Aurora, in maintaining the pyramid, was acting in its private corporate capacity, and was liable for the negligence of its employees in not keeping the pyramid in a reasonably safe condition. The view expressed in the Costello case is not in accordance with the rule that has been applied by our courts of review in this State under like factual situations. After reading that opinion we adhere to the statement of law expressed in the preceding* paragraph.

Other points have been urged and considered. However, as the point that we have passed upon is controlling, it is unnecessary to extend the opinion. For the reasons stated, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    Elizabeth Jane Replogle, Appellee, v. Harry Scott et al., Defendants. Appeal of Frances E. Jones, Appellant.
    Gen. No. 40,304.

      Opinion filed March 29, 1939.
    Tags Joranson, of Chicago, for appellant.
    Gaylord A. Toft, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On February 27, 1936, plaintiff filed a complaint in the circuit court of Cook county for the purpose of foreclosing the lien of a trust deed on real estate in Chicago. Defendant, Frances E. Jones, filed an answer in which she relied on the defense of usury. The other maker of the note, Harry Scott, defaulted. The cause was referred to a master in chancery, who recommended a decree in accordance with the prayer of the complaint. Exceptions to the master’s report were overruled and the decree was accordingly entered and this appeal follows.

On August 22, 1929, Harry Scott and Frances E. Jones executed a trust deed to the Chicago Title & Trust Company as trustee, on real estate in Cook county, Illinois, securing the payment of the sum of $16,000, evidenced by seven promissory notes of that date. Defendants, in order to procure the loan, applied to Richard M. O’Brien, a loan agent in Chicago. The latter thereupon procured the loan through J. A. Schmidt & Company, a corporation, also engaged in the mortgage and loan business. The loan was for a period of five years with certain prepayments and bore interest at 7 per cent per annum, payable semiannually. A broker’s commission of 5 per cent for procuring the loan was deducted from the amount of the loan. This commission in the sum of $800, was divided so that J. A. Schmidt & Company received $480 or 3 per cent, and Richard M. O’Brien, $320 or 2 per cent. When the notes and the trust deed were delivered by O’Brien to Schmidt & Company on September 12, 1929, the former received the check of Schmidt & Company for $15,520, payable to his order. O ’Brien, in turn, deducted $320 as his commission and paid the balance of $15,200 to the defendants. The lender of the $16,000 was the Academy of Our Lady of Lourdes at Rochester, Minnesota. The only compensation to Schmidt & Company for negotiating the loan was the 3 per cent commission. No part of the commission was paid to the lender. The defendant, Frances E. Jones, contends that the loan was usurious.

The answer averred that the Academy of Our Lady of Lourdes was the actual owner and holder of the notes and trust deed sought to be foreclosed; that plaintiff brought the complaint in her name solely as agent for the academy; that at the time of the execution of the trust deed and notes sought to be foreclosed, it was “corruptly and unlawfully agreed between the said Academy of Our Lady of Lourdes and this defendant that the said Academy of Our Lady of Lourdes should loan to this defendant the principal sum of $16,000.00 for a period of five years with prepayments . . . and that this defendant for such loan should pay to the said Academy a commission in the sum of $800.00, and also interest on said loan at the rate of 7% per annum during the entire term of said loan; that thereupon in pursuance of said corrupt and unlawful agreement the said Academy then and there made the said loan of $16,000.00, with interest at the rate of 7% per annum, and in further pursuance of said corrupt and unlawful agreement, this defendant then and there paid to the said Academy the said commission in the sum of $800.00, and made and delivered to the said Academy 55 interest notes evidencing the said interest at the rate of 7 % per annum, as aforesaid, and the said Academy then and there received said commission and the said 55 interest notes pursuant to said corrupt and unlawful agreement for the purposes aforesaid; that the commission and interest aforesaid during the term of said loan exceed the rate of 7% per annum, contrary to the statute in such case made and provided, by means whereof and by force of the said statute, all interest on said principal notes, including all interest notes evidencing interest thereon, have become and are now void and the said Academy and the plaintiff herein neither had nor have any right to claim or sue for any interest on said principal notes for the reason that said interest is void and forfeited under the statute. ’ ’ The testimony and exhibits introduced before the master did not in any way tend to establish the above allegation. As one of the errors claimed to have been committed, defendant states that the court refused to permit the defendant to amend her answer. The case proceeded before the master, who rendered his report; exceptions were filed thereto and argued, and the court ruled on the exceptions. It was not until then that defendant asked to amend her answer. There is nothing in the record to show that the chancellor abused his discretion in refusing to allow an amendment at that time. Further, the point has not been argued in the brief, and is thereby waived.

The burden was on the defendant to establish her allegation of usury by a preponderance of the evidence. Whether the transaction was usurious, depends on the intention of the parties. We have examined the record and it discloses that J. A. Schmidt & Company and Richard M. O’Brien were acting as brokers in the negotiations, and that the makers of the mortgage lmew that they were acting as brokers. No part of the commission went to the academy, nor was the broker, J. A. Schmidt & Company, acting as the agent for the academy. The transaction was conducted in good faith by all parties, and there was no intention to circumvent the statute against usury. When the notes became due, the makers negotiated directly with the sisters in charge of the academy and obtained an extension for one year. At that time, the sisters did not make any charge for the extension, or require the intervention of a broker; nor did defendant then make any claim that the original transaction was in any way usurious. Clearly, defendant has failed to establish her plea that the loan was tainted with usury.

Finally, defendant contends that the plaintiff is not the legal holder or owner of the notes and trust deed, and, therefore, cannot maintain the complaint. Plaintiff testified that she was the legal holder of the mortgage papers and they were introduced in the evidence. The defendant had the opportunity of making any equitable defense that she possessed.

In Witting v. Claras, 274 Ill. App. 449, this court said:

“The notes and trust deed having been produced by complainant, and the defendants being entitled to interpose any defense they might have, and no defense having been interposed, they were in nowise injured. Plaintiff was the legal holder of the notes and entitled to maintain foreclosure.” Therefore, the criticism that plaintiff is not the proper party to bring the complaint, is not valid.

For the reasons stated, the decree of the circuit court of Cook county should be and it is affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    M. V. Coyne, Appellant, v. South Shore De Luxe Laundry, Appellee.
    Gen. No. 40,411.
    Opinion filed March 29, 1939.
    Levisohn & Levisohn, of Chicago, for appellant.

      Swanson & Dodge and Paul S. McCabe, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

In an action in forcible entry and detainer brought in the municipal court of Chicago for possession of the premises known as 4720-22 Cottage Grove Ave., in Chicago, the court found the issues for defendant and entered judgment against plaintiff for costs, and this appeal followed.

For a period of two years prior to April, 1936, a Chicago real estate man by the name of Milton Moses collected the rents and acted as the agent for the premises, which consisted of a one-story brick building located on the south side of Chicago. In all transactions he recognized Mr. H. C. Dana, engaged in the loan and insurance business at Kewanee, Illinois, as his principal. In the spring of 1936, the store was vacant, and there was correspondence between the agent and the principal with respect to securing a tenant. On March 11, 1936, Moses wrote Dana that he had an offer from a laundry concern to rent the premises for a term of five years at a rental of $50 per month for one year and $75 per month for the remainder of the term. In the letter he indicated that in addition to expenditures that the proposed tenant would make at his own expense, it would be necessary for the lessor to spend $1,196 in order to make necessary repairs. He added that while the proposal did not sound attractive, “it is apt to cost almost as much to keep the premises insured without an occupant.” He concluded by stating that the applicant required a prompt decision as the latter had to make up his mind whether to move or to renew the lease on his present location. On March 13, 1936, Dana replied by letter, as follows:

“I talked the matter over with Mrs. Scott this morning. We cannot see how the Scott Estate can raise the money to pay $1,196.00 for work on that building, as we haven’t any money on hand. Can you make a lease for five years — the man to do all the improving? In that way, perhaps we can get some fellow who will stick. We might be able to raise the $315 for the roof— he to do everything else — the rental per month to be applied on the repair bill.” On March 24,1936, Moses directed a letter to Dana, in which he stated that he had several conversations with Simon Yolk of the South Shore DeLuxe Laundry, the proposed tenant. The agent told Dana that he had been trying hard to get the proposed tenant to assume all of the repairs, and that on that day the tenant had agreed to do so, the rental to be $50 per month for five years, with rent abatement during the first six months of the first year and the first three months of the second year. He further stated that the difference between the proposal of the tenant and the original offer would about equal the estimated cost of the repairs which the landlord was asked to make. The letter concluded by stating that “I believe his offer should be accepted. Any one who would undertake to put this building in a good usable condition is doing the property a real service. This is a better lease than I have" anticipated getting, and I would not let it get away. Mr. Yolk is going to decide on a place within a few days, therefore, I must let him know not later than Thursday, tomorrow if possible, so I would suggest that you wire me if acceptable.” In chronological order, apparently there was a telephone conversation between Dana and Moses, for in a letter dated March 25, 1936, from Dana to Moses, the former referred to a telephone conversation, without disclosing the contents, and added that “some precaution should be taken to prevent a mechanic’s lien being placed on that building, if our new tenant did not pay the bills.” On March 30, 1936, Dana wrote Moses acknowledging the receipt of past due water bills which had been forwarded by the agent and inclosing- a check to the agent for the purpose of paying the bills. The letter continued as follows: “It does seem as if the property is going to drain the Scott Estate dry. There is no use of making a lease with this new man unless it is going to stick. Do the best you can for us, but if he is a man of no means and just a roustabout, it would be another case of throwing- it up, I am afraid. ” On April 4,1936, Moses wrote Dana and inclosed a check for $50 received from defendant to cover rent for the seventh month of the lease, being November, 1936. The letter concluded with the following paragraph:

“The new tenant is already at work on the building, and expects to be operating by May first. These people started in their present quarters six years ago, and have expanded as much as the building will permit. It is impossible to guarantee that any one will stick, all they can do is work hard and do their best. The last party overworked, had a nervous breakdown, and of course had to crash. In this case there are several partners, their references are satisfactory, and they appear well-intended, and far from being roustabouts. They will have a large investment in equipment, besides spending the large sum necessary on the building. Even if their rent were free, you would be money ahead by reason of their occupancy. The insurance has been cancelled, but will be restored because you now have a tenant. I believe they will make a good tenant. My charge to the Estate for the lease will be $25.00, as I had some expenses in connection with the deal. Otherwise, I would have let the last fee cover this deal also. ’ ’ On May 11, 1936, Dana wrote Moses as follows:

“Mrs. Scott was in the office this afternoon and asked me if I had received the lease on the Cottage Grove property. I promised her that I would write you and ask how you were getting along with it. You sent us one month’s rent, I believe for November. It seems to me that he should pay the six months’ rent during the first six months. We would then have some hold on it. Would be pleased to hear from you at your earliest convenience. ’ ’ On May 16, 1936, Moses wrote Dana, the last paragraph of this letter reading as follows:

“I am enclosing the lease on the property, which is according to the proposal I submitted to you under date of March 24th. You will recall that originally the tenant wanted you to spend about $1200.00 before he would rent it, and when you objected to this, I arranged to have the tenant spend this money, allowing him the first six months’ rent, and three months in the second year, also eliminating the increase in the rent after the first year. The extra allowance amounted to $1350.00, spread over five years. So far the tenant has fulfilled his obligation completely, in fact, appears to have had to do much more than he anticipated. He has told me it will take him five years to catch up on all the money he expended and I believe it. I think this is more hold on the tenant than you could expect. I do not think one tenant in a hundred would do what he has done, in fact, he had to make his decision so quickly that he missed noticing some of the damage, to your benefit.” On June 9, 1936, Dana wrote Moses and inclosed a check for $25 “for leasing the Cottage Grove Avenue property.” Thereafter, the lease was mailed to Dana on April 4,1936.

The lease which was admitted in evidence over plaintiff’s objection is on a printed form, and recites that it is between Milton Moses, agent, and defendant corporation, covering the premises for a term commencing May 1,1936, and ending April 30, 1941, at a rental of $50 per month. It provides that no rent need be paid to the lessor prior to November 1, 1936, and that no rent shall be paid for the months of May, June and July, 1937. It also contains a typewritten provision requiring the lessee to furnish the lessor with waivers of mechanic’s liens. It will be observed that the lease was drawn substantially in accordance with the instructions in the correspondence. The lease was signed by the corporation, by its officers, and by “Milton Moses, Agent.” On the reverse side of the lease appears the usual “Lessor’s Assignment” form, signed by “Milton Moses, Agent,” and dated April 1, 1938. Such assignment acknowledges the receipt of $1. The space for inserting the name of the assignee remains blank.

On the trial, counsel for plaintiff stated that there was no question about the title prior to the lease. Apparently, plaintiff became the contract purchaser of the property about April 1, 1938, at which time the assignment of the lease was executed by Moses, who thereupon delivered the lease with the assignment, in blank, to James B. Hood, then the attorney for plaintiff. At the trial, the lease was produced by plaintiff and introduced as an exhibit by defendant. At the commencement of the trial, defendant’s attorney demanded that plaintiff produce the contract under which plaintiff was purchasing the property. At that time, plaintiff’s attorney stated that he did not have the agreement. Counsel for defendant later renewed his demand that plaintiff produce the contract, to which counsel for plaintiff replied that the notice to produce was served on him at 4 p. m. the day before, and stated that “I haven’t such a contract here.” The evident purpose of defendant in demanding that the contract be produced was to show, as he inferred, that the contract contained a recognition of the lease. The trial concluded without the contract being produced. Hence, the record is silent as to whether the same did contain any language that would amount to a recognition of the lease. On April 11, 1938, a written notice directed to defendant as “Lessee of 4720-22 Cottage Grove Ave., Chicago, Ill.,” signed by M. V. Coyne, owner, by James B. Hood, duly authorized agent and attorney, was served on defendant, reading as follows:

“You are hereby notified that in consequence of your default in each of the following: 1. Failure to pay for plate glass insurance; (2) Failure to replace broken windows; (3) Failure to repair or replace roof; (4) Failure to repair or replace plastered walls and ceiling; (5) Failure to keep basement from being flooded; (6) Failure to keep the demised premises in repair; of the premises now occupied by you under a lease dated March 28th, 1936, demising the above mentioned premises at 4720-22 Cottage Grove Avenue, Chicago, Illinois, I have elected to determine your lease, and you are hereby notified to quit and deliver up possession of the same to me within ten days of this date.” Plaintiff testified that Mr. Hood was her attorney. The notice recognizes the existence and validity of the lease and seeks to terminate the same because of claimed breaches. On April 8,1938, Milton Moses sent the following letter to defendant:

“You are hereby notified that the lease dated March 28, 1936, demising the above premises to you from the first day of May, 1936, to the thirtieth day of April, 1941 and executed by me as agent has been assigned to M. V. Coyne, who has purchased the premises, and you are instructed to take up any matters concerning said lease with Mr. Coyne.

“Mr. James B. Hood, 188 West Randolph Street, is attorney for Mr. Coyne and is handling the property for him.”

On the trial, plaintiff called to the stand as a witness, the president of the corporation, and by her testimony, established the relationship of landlord and tenant between plaintiff and defendant. The witness stated that in April, 1938, defendant paid to plaintiff the sum of approximately $200, “to take care of rent and some interest in a distressed proceeding. ” Defendant introduced a receipt dated April 14, 1938, signed by plaintiff, which reads as follows: “Received of Paul S. McCabe, atty. for South Shore Laundry, the sum of $208, and for rent for the premises located at 4720-22 Cottage Grove Ave., being for the months of February, March and April, 1938, and in full of custodian fees by virtue of Distress of Rent. It is agreed that said suit, No. 953757, Municipal Court, M. V. Coyne v. South Shore DeLuxe Laundry, be dismissed no cost, and said matters adjusted between the parties regarding past due rent. Notice of April 11, 1938, is hereby withdrawn. ’ ’ Plaintiff then changed her position, and on April 26, 1938, served on defendant a notice that the tenancy would be terminated on June 1, 1938, and that defendant would be required to surrender possession of the premises to plaintiff on that date. Defendant paid the rent for April and May and tendered the rent for June. Plaintiff, however, refused to accept the June rent, and on June 3, 1938, instituted her action for possession of the premises under the forcible entry and detainer statute.

The chief criticism leveled at the judgment is that the lease cannot bind plaintiff because it is contrary to sec. 2, ch. 59, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 55.02], known as the statute on “Frauds and Perjuries. ’ ’ While the lease is in writing*, it is signed by “Milton Moses, Agent,” and plaintiff insists, is not signed “by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing signed by such party.” It is manifest that the lease is not signed by Dana, or by plaintiff. It is not entirely clear as to whether the Scott estate or Dana was the owner in the spring of 1936. There is no doubt, however, that in April, 1938, plaintiff became the contract purchaser of the premises, that she fully recognized the defendant as her tenant, and that she served notice on the tenant in an attempt to terminate the lease because of alleged breaches therein. At that time she clearly recognized that the defendant was in possession under the lease. At the trial the lease was produced by her. At the time she acquired her interest, on or about April 1, 1938, the lease was delivered to her. At that time the assignment on the reverse side of the lease was executed by Moses. Therefore, at the time the notice of April 11, 1938, was served on defendant, plaintiff was fully acquainted with the provisions of the lease. After the payment to her of $208 on April 14, 1938, plaintiff withdrew the notice to terminate, which had been served on April 11, 1938. Subsequently, she sought to change her position and proceeded on the basis that the lease was not binding on her, and that defendant was in possession under a month to month tenancy. Under sec. 2, ch. 57, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.264], defendant was permitted to establish any defense, legal or equitable, showing that its occupancy was rightful. The purpose of the statute of frauds is to prevent fraud. The application of the statute, under the factual situation shown by the record in the instant case, for the purpose of evicting defendant, would in effect perpetrate a fraud on defendant. There was a full and complete recognition and ratification of the lease by plaintiff. There is abundant evidence to warrant the trial court in finding that defendant was rightfully in possession of the premises. The action of the municipal court of Chicago in finding the issues for defendant and in entering a judgment for costs against plaintiff, was just and right. Therefore, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    People of the State of Illinois ex rel. Knowlton L. Ames, Jr., Plaintiff, v. George M. Marx, Trading as Marx Bros., and American Bonding Company of Baltimore, Defendants. American Bonding Company of Baltimore, Appellee, v. George M. Marx, Trading as Marx Bros., Appellant.
    Gen. No. 40,445.

      Opinion filed March 29, 1939.
    William Schulze and Louis David Friedman, both of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Frederic Burnham, David F. Rosenthal and Jacob X. Schwartz, all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On April 5, 1934, plaintiff filed a complaint in the circuit court of Cook county, based on the failure of defendant Marx to pay taxes collected by him as a motor fuel distributor, and asserted that the defendant, American Bonding Company of Baltimore, a corporation, was liable to the extent of $5,000 as a surety upon a bond furnished to the plaintiff. On December 21, 1937, in a summary judgment proceeding, the court entered a judgment against both defendants under the first count in the sum of $5,000 and against the individual defendant Marx under the second count in the additional sum of $3,096.52. However, before the judgment was entered, the surety, by leave of court, filed a counterclaim against the principal. The counterclaim was grounded on the proposition that the surety company, under its agreement with the principal, was entitled to be indemnified against any loss, and prayed that in the event of judgment against it, the principal be ordered to assign to it all his right in and to certain claims he had against a bank and the dividends that might be paid by the receiver of the bank. The judgment order concluded by continuing the cause “for trial on cross-complaint of Airierican Bonding Company filed herein this day by defendants.” Marx was given leave to file an answer to the counterclaim within 10 days. He filed an answer to the counterclaim on December 30,1937. The surety paid the judgment and costs. Thereafter, on February 25, 1938, by leave of court, an amended and supplemental counterclaim of the surety was filed. That pleading set up the preceeding proceedings and asked for a judgment against the principal for $5,017.60, being the portion of the judgment ordered against the surety, plus the costs, and also asked for $306.41, being attorney’s fees in the sum of $300, appearance fee of $5 and other expenses of $1.41. The principal filed his answer on March 7, 1938. The answer did not deny any of the material facts set up in the amended and supplemental counterclaim, and did not raise any objection to the jurisdiction of the court. The answer alleged that he filed a notice of appeal to the Supreme Court of Illinois for the purpose of reversing the judgment rendered against him on December 21, 1937. The notice of appeal was filed on March 7, 1938. The record does not show that any supersedeas was sought or granted. On March 18, 1938, the surety filed a reply to the answer. On March 26,1938, the attorneys for the surety served notice on attorneys for the principal that on April 5, 1938, they would appear in court and move for a summary judgment against the principal, and concurrently therewith served a copy of a motion for summary judgment and a copy of an affidavit for summary judgment. Attached to the affidavit were various exhibits. Such notice, motion and affidavit were filed in the court on March 28, 1938. The principal filed a counter-affidavit on April 5, 1938, in opposition to the motion for summary judgment. On April 4, 1938, attorneys for Marx served on the attorneys for the surety a notice that on the following day they would present a petition for a change of venue, a copy of which was attached to the notice. The notice and the petition were filed in the office of the clerk on April 5,1938. The petition for change of venue recites that the petitioner Marx, defendant, “fears that he will not receive a fair trial in said court on account that the Judge, Harry M. Fisher, before whom the said cause is set for hearing, is prejudiced against him, the petitioner, so that he cannot expect a fair trial in said court; that knowledge of said prejudice did not come to the petitioner until March 31, 1938. The petitioner therefore prays a change of venue in this cause pursuant to the statute in such case made and provided.” The record is silent as to whether the petition for a change of venue was presented to the trial judge, or whether he made any ruling thereon. On April 5, 1938, an order was entered finding the issues for the surety and against the defendant and entering judgment against him for the sum of $5,324.01 and costs. This appeal is prosecuted from the latter judgment.

The first criticism leveled at the judgment is that it was improper for the court to entertain the counterclaim in view of the fact that the original judgment was entered on December 21, 1937, against both defendants. Section 38, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.038], being sec. 38 of the Civil Practice Act, provides:

“Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more co-defendants, whether in the nature of set-off, recoupment, cross-bill in equity or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross-demand in any action, and when so pleaded shall be called a counterclaim.

“The counterclaim shall be a part of the answer, and shall be designated as a counterclaim.

“Every counterclaim shall be pleaded in the same manner and with the same particularity as a complaint, and shall be complete in itself, but allegations set forth in other parts of the answer may be incorporated by specific reference instead of being repeated.” Defendant argues that the second paragraph clearly indicates that it was the intention of the legislature that the counterclaim be filed at the same time as the answer. In construing* the Civil Practice Act, it is always well to remember that sec. 4 provides that “This act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto.” Paragraph 3 of sec. 33 provides that “pleadings shall be liberally construed with a view to doing substantial justice between the parties.” We also invite attention to the liberal provision as to amendments, contained in sec. 46, par. 1 [Ill. Rev. Stat. 1937, ch. 110, §170; Jones Ill. Stats. Ann. 104.046], which reads: “At any time before final judgment in a civil action, amendments may be allowed on such terms as are just and reasonable, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding* new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.” A reading of the entire act convinces us that it is within the discretion of the court to allow the filing of counterclaims subsequent to the filing of the answer. To hold otherwise, would be to give the act a narrow and restrictive construction.

It will be observed that the court gave the surety permission to file a counterclaim before the judgment was entered in the original case, and that in the judgment order the matter of the disposition of the counterclaim was reserved. We have examined decisions in other jurisdictions where similar provisions as to filing counterclaims were involved, and find that defendants in the same position as the surety in the instant case have been permitted to file counterclaims to recover against the principal in the same action in which the obligee has sued both of them. Moreover, defendant did not object to the action of the trial court in permitting the amended and supplemental counterclaim to be filed. In fact, the record shows that he proceeded before the trial court in full recognition of the right of the trial court to pass upon the issues involved in the case. Under the liberal provisions of the Practice Act, the court was right in permitting the filing of the amended and supplemental counterclaim. We have examined the pleadings and the affidavits presented to the court on the motion for a summary judgment, and find that there was no merit to the defense interposed, and that the court acted properly in entering a summary judgment.

The second and final criticism asserted against the judgment is that the court erred in not granting the petition for a change of venue. The surety points out that the petition was filed in the office of the clerk of the court on April 5, 1938, the day when the motion was heard, and that it shows on its face that defendant had knowledge of the alleged prejudice of the trial judge on March 31,1938. The surety argues that there was undue delay by defendant in presenting the petition, and cites authorities in support of its position. However, it is unnecessary for us to pass on that point because there is nothing in the record to show that the petition was presented to the trial judge, nor is there anything in the record to show that the trial judge made any ruling on the petition. We have examined the record and find the word “denied” written in ink on the copy of the petition. The writing appears to be the same as the writing of the two signatures to the petition. Apparently, the word “denied” was written by the same person who copied the name of the petitioner. The record here does not show that the court wrote the word “denied” on the petition. The burden is on the one who asserts error to point out in the record the ruling he wishes us to review. The record does not show a ruling by the court on the petition for a change of venue. It follows that there is no ruling for us to review.

For the reasons stated, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    Rae Symons Hoffman, Appellant, v. The First National Bank of Chicago, Successor by Consolidation to First Union Trust and Savings Bank and to Foreman State National Bank, Appellee.
    Gen. No. 40,244.

      Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    Erich E. Pacyna, of Chicago, for appellant.
    Amberg, Ott, Dahlin & Livingston and Nat M. Kahn, all of Chicago, for appellee; Nat M. Kahn, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order entered by the court on January 24, 1938, sustaining the motion of the defendant to strike for insufficiency the plaintiff’s third verified amended complaint. The action is one in trover for the illegal conversion of the proceeds of plaintiff’s check by the defendant bank. The plaintiff in her verified third amended complaint included in her action a count of assumpsit for the recovery of the proceeds of her check, plus interest thereon, and also a count for damages resulting to and suffered by.her because of the wrongful and illegal cashing and payment by the defendant of her check to another person. The check was dated July 22, 1931, and was drawn by J. H. Kraemer & Son in the. amount of $4,804.75 on the Foreman-State National Bank, the drawee, payable to Rae and Abe Symons. The check was deposited with the First Union Trust & Savings Bank after the names of the payees were indorsed on the check, and the First Union Trust & Savings Bank collected the amount of the check from the drawee, the Foreman Bank. The First National Bank of Chicago became successor by consolidation of the First Union Trust & Savings Bank, and the First National Bank of Chicago is the sole defendant in this action. The Foreman Bank, the drawee, at the time of the transaction was a separate entity. Plaintiff’s action is not as one payee, but as sole claimant to the proceeds of the check drawn on the Foreman Bank and cashed by the First Union Trust & Savings Bank, which was succeeded by the First National Bank of Chicago.

The verified third amended complaint sets forth that the plaintiff remarried one Harry Hoffman since filing this suit; that on July 22, 1931, J. H. Kraemer & Son signed the check, which was made payable to her for $4,804.75; that she was the owner of the check and was to have and receive the check and the proceeds thereof; that the check was not received nor indorsed by her nor by any other person at her request; that without her knowledge or consent J. H. Kraemer & Son delivered the check to one Abe Symons (her ex-husband) about the last mentioned date; that the defendant or its predecessors indorsed and cashed the check; that the First Union Trust & Savings Bank Cashed the check and paid the above sum; that the plaintiff did not know nor learn of the issuance and delivery of the check for more than two years after its date; that the check should have been delivered to her and to no other person, but it never was delivered to her; that the alleged name or signature of “Rae Symons ’ ’ appearing on the back of the check was and is not her signature nor indorsement but was written or forged thereon by some other person; that she never authorized nor empowered any other person to write, sign or indorse her name on the hack of the check at any time; that shortly after learning of the issuance, delivery, forging and cashing* of the check she notified the defendant thereof in writing; that upon defendant’s demand she made, furnished and delivered to it an affidavit wherein she stated she never received the check, that the name and signature of “Rae Symons” on the back of the check was not her signature nor indorsement but was forged thereon; that she never authorized nor empowered any person to sign or indorse her name on the back of the check, and that she never received any moneys or proceeds of the check at any time or place. That written demand on the defendant for payment of the amount of the check was made on July 18, 1935; that it refused payment and that the sum of money and check had been converted to its own use, to the damage of the plaintiff for the above sum and interest thereon from and after the date of the check.

The defendant urges that its motion to strike for insufficiency the third amended complaint and to dismiss the suit, tentatively admitted for the purpose-of testing* the pleading, the foregoing facts alleged by the plaintiff, namely, that she was to have the entire proceeds of the check, but never received the check, etc., but the main ground of defendant’s motion to strike for insufficiency plaintiff’s third amended complaint was that since the plaintiff claimed the check was never delivered to the plaintiff or to anyone in her behalf, the plaintiff had no right or title to the check, and that she was relegated to her original claim, if any, against the drawer of the check. The court sustained defendant’s motion and dismissed the suit.

In the discussion of this appeal from the order granting the defendant’s motion to strike for insufficiency the plaintiff’s verified third complaint, we are controlled by this questioned amended complaint. The facts alleged are that the check was dated July 22, 1931, and was drawn by J. H. Kraemer & Son in the amount of $4,804.75, on the Foreman-State National Bank, payable to Rae and Abe Symons. The check was deposited with the First Trust & Savings Bank after the names of the payees were indorsed on the check. It is further stated in the amended complaint that the check was delivered to Abe Symons, plaintiff’s ex-husband, by J. H. Kraemer & Son, and not to her. However, Abe Symons, being one of the payees named in the check, was entitled to receive the check, and, under the circumstances, retain possession thereof. The check was made payable to joint payees, and of course the actual manual possession of the check must be in some one of the payees, and on the face of the check the interest of Abe Symons is that of a joint payee. Therefore, he held the check for himself and the other payee. Upon a like question, as to the effect of the receipt of a note payable to a joint payee, the Supreme Court in the case of Ryhiner v. Feickert, 92 Ill. 305, said: “In all cases where notes are payable to joint payees, instead of partners, the actual manual possession of the notes must be in some one of the payees. It is impossible that it can be in all at the same time. The faces of these notes disclose the interest of the holder — that he is joint payee, and that therefore he holds for himself and for all the other payees — and rebut any presumption that might arise otherwise from the mere possession of the notes.”

Plaintiff alleges that there was a delivery of this particular check, payable jointly to the plaintiff and Abe Symons. Therefore as Abe Symons was in joint possession, he held for himself and for the other payee, as did the holder of the note in the case just cited.

It is true the plaintiff does allege that her name was indorsed on the check without her knowledge or consent ; that J, H. Kraemer & Son delivered the check to Abe Symons, her ex-husband; that she was the owner of the check and was to have and receive the check and the proceeds thereof, and that her alleged name or signature appearing on the back of the check is not her signature nor indorsement, but was written or forged thereon by some other person, and that for that reason she is entitled to recover the amount of this check.

The provision applicable to this case is par. 61, sec. 41, ch. 98, entitled Negotiable Instruments (Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 89.061]), which provides: “Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse unless the one indorsing has authority to indorse for the others.”

It is evident that one indorsing the name of a joint payee must have authority to do so. In Crahe v. Mercantile Trust & Savings Bank, 295 Ill. 375, in following this provision of the Negotiable Instruments Act, where a check was delivered to an attorney, who, representing the claimant, settled the judgment for $750 and took in payment thereof a check for $761, in which his client and the attorney were joint payees, and the attorney afterward presented the check to the Fort Dearborn National Bank for payment by the indorsement of his client’s name on the check, together with his own, the Supreme Court held that the attorney was without authority; that the indorsement of his client’s name was a forgery, and that he received the money evidenced by the check. The court also held that the liability of the bank to the payee for her share of the proceeds of the check drawn payable to the order of herself and her attorney and upon which her name was forged by the attorney, was not affected by the fact that the attorney had an interest in the proceeds of the check, where he had no authority to indorse the client’s name. So that, in the instant case the bank is liable to the payee for a share in the proceeds of the check which was drawn to the order of the plaintiff and her ex-husband, and upon which her name was forged. As we have already stated, the check was in the possession of her ex-husband, and he being a joint payee had an interest which he divested himself of by his indorsement, and the question here to be considered is whether the plaintiff is entitled to the full amount of the check.

We believe from an examination of the authorities, as well as of the allegations of fact, that the court erred in striking the third verified amended complaint, and the question of fact as to plaintiff’s interest in the check must be made an issue so that she may have an opportunity to prove what interest, if any, she had in the check which was payable jointly to her and her ex-husband, Abe Symons.

For the reasons stated in this opinion, the judgment for the defendant is reversed and the cause remanded for such further action as may be consistent with the views herein expressed.

Reversed and remanded.

Denis E. Sullivan, P. J., concurs, and Burke, J., takes no part.