text:
    Winnie Pinkstaff Benson, Appellant, v. Charles Gerhart and Rosa Gerhart, Appellees.
    1. Courts — power of court to amend order during term. A term of court is regarded as a unit of time, and any order entered during a term may be changed or amended during such term, but may not be amended thereafter, except in matters of form or for the correction of clerical errors.
    2. Appeal and error — jurisdiction of court to extend time for filing bond and to approve same after expiration of original time for filing but during term. Where the court, during the term in which a judgment appealed from was rendered, extended the time to file an appeal bond, it had jurisdiction to grant such extension and thereafter to approve said bond, filed within such extended time, notwithstanding said time was extended and said bond was approved after the time originally fixed for the filing of the same.
    3. Appeal and error — waiver by appellant of right to object to extension of scope of review by failure to object below. Where a hearing was had in the circuit court, without objection on the part of appellant, upon all of appellee’s objections to appellant’s report as executrix which had been overruled by the county court, the appellant was precluded from contending, on appeal from the circuit court, that such court was without jurisdiction to consider objections to such report other than those involved in appellant’s appeal on the ground that appellee had failed to perfect his appeal.
    4. Appeal and error — nonpayment of filing fee as ground for dismissal of appeal from county tO' circuit court. ' Cahill’s St. ch. 79, If 116, requiring the payment of the fee for filing appeals from justices of the peace to the circuit court within twenty days after entry of judgment, in order to perfect such appeals, has no application to appeals from the county court, the same being governed by Cahill’s St. ch. 3, j[ 69.
    5. Wills — bequest of certain amount in liberty bonds as general or specific. Under a bequest reading: “I devise and bequeath to * * * and to Winnie Pinkstaff Benson One Thousand Dollars in Liberty Bonds * * held that the bequest of the liberty bonds was a general legacy and not a specific one.
    6. Estates of decedents — sufficiency of evidence to warrant reduction of allowance to executrix for funeral expenses. Evidence on a hearing of objections to the final report of an executrix held to warrant the judgment of the circuit court reducing the credit claimed for funeral expenses from $2,032.75 to $1,500.

      7. Estates of decedents — sufficiency of evidence to warrant reduction of allowance to executrix for monument. Evidence on a hearing of objections to the final report of an executrix held to warrant a judgment reducing the credit claimed for the erection of a monument from $2,500 to $750.
    Appeal by plaintiff from the Circuit Court of Lawrence county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    Gee & Gee, for appellant.
    Philip W. Barnes and Shaw & Huffman, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Rosa Pinkstaff, of Lawrence county, died testate on October 11, 1921, seized of some 406 acres of land in said county, valued at $39,975, and of personal estate valued at $9,738.18. The second and third clauses of her will are as follows:

“Second. I will devise and bequeath to Ida Norton $500 in cash and to her and her heirs I devise and bequeath Southeast Quarter of the Southeast Quarter of section twenty-four, town five, range eleven west, Crawford county, Illinois.
ieThird. I will devise and bequeath to John R. Pink-staff $300 in cash, to Dora Gerhart $300 in cash, Hershal Pinkstaff $500 in cash, Oka Pinkstaff $1,000 in cash, Rising Sun Christian Church $200 in cash and to Winnie Pinkstaff Benson One Thousand Dollars in Liberty Bonds and after all expenses and a simple monument has been paid for, whatever money remains together with my remaining Bonds and War Stamps to be divided equally between Rose and Charles Ger-hart.”

By the, last clause of said will appellant was appointed executrix thereof, to serve without bond. Appellant qualified as such, and administered upon said estate. A final report was filed by appellant in the county court of said county, to various items of which appellees filed written exceptions, numbered from 1 to 8 inclusive. Certain of said exceptions were sustained by the court, among which was exception No. 3, as follows:

“3. Excepts to a credit of $2,500 for a monument. The will provides for a simple monument; and this monument does not comply with the requirements of the will or the intention of the. said Eosa Pinkstaff, deceased, and destroys the distribution of the personal property under the will and defeats the rights of these objectors, and no permission or authority was asked from the Court or given.”

The county court, on hearing, reduced said credit from $2,500 to $750. Appellant prayed an appeal to the circuit court from the order of the county court sustaining said exception. Said appeal was allowed, upon appellant filing a bond in the sum of $100 within twenty days, which said bond was filed within the time specified, and was duly approved by the court.

On the hearing in the circuit court, the said exception No. 3 was sustained, and the. allowance for said monument was reduced from $2,500 to $750. In other words, the circuit court affirmed the county court as to its ruling and order thereon. The court also, upon objection by appellees, entered an order reducing the amount of the credit asked for funeral expenses, from $2,032.75 to $1,500, and also held that the bequest to appellant of $1,000 in Liberty Bonds was a general and not a specific legacy. From the judgment of the circuit court sustaining said exceptions, appellant prayed an appeal to this court.

A motion was made in this court by appellees to dismiss said appeal on the ground that the bond fixed by the circuit court was not approved within the time provided in the order granting the appeal.

The record discloses that the judgment of the circuit court was entered on May 16,1925, and on that day an appeal was prayed by appellant to this court, and was allowed, upon filing bond in the sum of $500 in 30 days from said date. Said court was adjourned on the 16th day of May until the 27th day of July. On June 20, and without having filed said appeal bond, appellant filed a motion to modify the decree or order of the court of May 16. Upon the convening of court on July 27, the court, on motion of appellees, struck from the files the motion of appellant filed on June 20. Thereupon appellant asked further time, in which to file an appeal bond. Said motion was granted by the court, and on the same day said appeal bond was presented and was approved by the court. It is the contention of appellees that inasmuch as appellant did not file her appeal bond within 30 days from May 16, that the court thereafter lost jurisdiction to extend the time in which such appeal bond could be filed.

Inasmuch as the time to file said appeal bond was extended during the term of court in which the judgment appealed from was rendered, the court retained jurisdiction to grant such extension and to approve said bond, notwithstanding that said time was extended and said bond was approved after the expiration of the time originally fixed for the filing of the same.

A term of court is regarded as a unit of time, and any order entered during the term may be changed or amended at such term, but may not be amended after the term, except in matters of form or for clerical errors. Cook v. Wood, 24 Ill. 295; Bushnell v. Cooper, 289 Ill. 260; Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369; Chapman v. North American Life Ins. Co., 292 Ill. 179; People v. Wells, 255 Ill. 450, 453. The Supreme Court has gone so far as to hold that a trial court retains control over its judgments, during the term in which they are entered, to the extent that Where an appeal bond has been filed as provided in the order of the court allowing an appeal, and the same has been approved, that it may set aside the order approving such appeal, and may vacate the judgment and grant a new trial. Finkelstein, v. Lyons, 250 Ill. 27.

Practically the same question here involved was passed upon by the Supreme Court in Plotke v. Chicago Title & Trust Co., 175 Ill. 234, and in Pitsch v. Continental & Commercial Nat. Bank, 305 Ill. 265. In Plotke v. Chicago Title & Trust Co., supra, the court, after holding that the approval of an appeal bond and the settling of a bill of exceptions are judicial acts, at page 236 says:

“Neither the bond nor the bill of exceptions was filed within the time limited by the order of February 23, but, as before, stated, the court, acting judicially, on the 28th of the same month, and during the same term, approved the bond and sureties after examining the same, and ordered the bond to be filed. The contention, in effect, is, that the court had no power to do this, — that it had lost jurisdiction of the matter. We cannot so conclude. The term had not ended, and the court had the power to set aside the orders which it had made at the same term and enter others. If the court had no power to enter the order approving the bond and ordering it filed bn the 28th, it had no power on the 23d to extend the time which had expired on the 17th. The effect of the order entered on the 28th was to extend the time, limited by the previous orders, to the 28th, and to approve the bond as then presented. (Railway Conductors’ Benefit Ass’n v. Leonard, 166 Ill. 154.) It was discretionary with the trial court to extend the time or not, and had it refused to do so appellant would have been too late to perfect his appeal, but having made and entered the order which we hold operated as such extension, the bond was filed* within the time limited.”

Appellees rely on the case of Hill v. City of Chicago, 218 Ill. 178, as sustaining their contention. An examination of this case will disclose that while the court used language which in a measure supports appellees ’ contention, it was not necessary for the decision of the matter before the court, and the. Supreme Court so held in Pitsch v. Continental & Commercial Nat. Bank, supra. The court there says, page 267:

“The case of Hill v. City of Chicago, 218 Ill. 178, is cited in support of the last proposition. In that case an order allowing an appeal at the February term of the county court fixed the time for filing the bond at thirty days from the date of the order, February 28. The time expired on March 30, after the expiration of the February term. No bond was filed within the time, but on March 31 a bond was approved by the judge and filed with the clerk, and it was held that the court was without power to extend the time and the right of appeal was lost by failure to comply with the condition. In this case the term at which the decree was entered and at which the statute authorized an appeal to be allowed was still continuing. The court had not lost jurisdiction of the cause, and the order approving the filing of the appeal bond and permitting it to be filed was in effect an extension of the time for filing the bond, which was within the power of the court, and this court has jurisdiction of the appeal.”

We therefore hold that the motion to dismiss the appeal should be denied.

It is next contended by appellant that the circuit court was without jurisdiction to pass on any of the exceptions to appellant’s report as executrix, other than item 3, for the alleged reason that appellees failed to perfect their appeal.

The original record as filed in this court failed to show that any appeal bond was filed by appellees, appealing from the decision of the county court. Diminution of the record having been suggested, by order of this court a certified copy of the bond filed by appellees in the county court, praying an appeal from the order of said court overruling certain of the exceptions made by them to said report, was filed as a part of the record in this case. There is no contention by appellant that the bond was not in due form and filed in time. It is contended, however, that said bond is not properly a part of the record here, for the reason it is not shown to have been filed in the circuit court. It is also contended that the record fails to show that appellees had advanced the filing fee.

We do not believe that appellant is in a position to raise this point, for the reason that, without objection on the part of appellant, a hearing was had in the circuit court on all the exceptions made by appellee, and which were overruled by the county court.

In Grier v. Cable, 159 Ill. 29, the court at page 31 says: “The circuit court, being a court of general original jurisdiction, is vested by law with jurisdiction of the subject-matter of suits against executors to recover claims against the estates of testators; and it would seem that, where a controversy of that character is brought before that court by the express or tacit agreement of the parties, the court has jurisdiction of both the subject-matter and of the persons of the parties litigant, wholly irrespective of the fact that the litigation was originally commenced before the county court. While consent can not give jurisdiction of a subject-matter to a court not vested by law with such jurisdiction, yet, where the parties appear before a court of competent jurisdiction, and submit to it their controversies for adjudication, the court acquires full power to try the case and render judgment, wholly independent of the character of the original process by which the case is nominally brought within its jurisdiction. ’ ’

The record in this case discloses that appellant offered her evidence first on the hearing in the circuit court, and it went to the amount and the propriety of the expenditures for funeral expenses, to which exception No. 2 related, as well as to the item of $2,500 for a monument. The same thing may be said as to the item of $1,000 in government bonds, to which exception No. 1 relates. At no time was any objection raised in the circuit court as to the hearing of any of these matters on the ground that they were not properly before that court on appeal.

On the question of the necessity of payment of the filing fee on an appeal of this character, the Appellate Court for the Third District, in Brenner v. Baker’s Estate, 223 Ill. App. 470, held that it is not ground for the dismissal of an appeal that the filing fee was not paid within 20 days. In referring to the amendment with reference to appeals from justices of the peace, passed in 1919, the court at page 472 says:

“It is true that by an amendment to this law concerning appeals from justices of the peace, passed in 1919 (section 115, art. X, ch. 79, Rev. St. 1919, Cahill’s St. ch. 79, ¶ 116) it has been made necessary to pay the fee provided by law for filing appeals from justices of the peace as well as the filing of the bond with security to be approved by the justice, within 20 days after judgment in order to perfect an appeal, but this amendment was not made applicable to appeals taken from the county court. Appeals from the county court are therefore still governed by the requirements of the law of 1872 referred to.”

We therefore hold that the circuit court had jurisdiction of said cause as to the items appealed from by appellees, as well as to the item to which appellant’s appeal related.

Exception No. 1 raised the question as to whether the $1,000 given to appellant in Liberty Bonds was a general or a specific legacy. A reading of the provision contained in clause 3 of the will of said deceased clearly discloses that the court ruled properly in holding said legacy to be a general and not a specific one.

In connection with the amount allowed for funeral expenses in connection with the burial of said deceased, we are of the opinion and hold that under the evidence in the record the circuit court was warranted in reducing said amount from $2,032.75 to $1,500.

We have carefully examined the testimony offered by the respective parties in connection with the amount paid for the monument to be placed at the grave of said deceased, and are of the opinion and hold that the court did not err in reducing the amount allowed therefor to $750. The provision in the will of said deceased directed that a simple stone should be erected at her grave, while the evidence clearly shows that the monument so erected was not of that character, but was elaborate and expensive and not in keeping with the estate left by said deceased.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Barry

license: Public Domain

text:
    The People of the State of Illinois for Use of John A. Cockrum, Conservator of the Estate of J. H. Cockrum, Insane, Appellee, v. Southern Surety Company, Appellant.
    1. Insane persons — liability of surety of conservator upon transactions antedating execution of bond. Where following the filing and approval of the report of a conservator he filed a second bond, which was duly approved, the surety on such second bond was liable, on the failure of the principal to account, not only for the funds in his hands at the time such bond was executed, but also for the proceeds of a sale of the real estate of the ward made under order of court twelve years prior to the making and approval of such report and the execution of such second bond.
    2. Insane persons — waiver by surety of defense to action on bond based upon uxmt of order for filing thereof. The surety on the bond of a conservator cannot escape liability for a default of its principal upon the ground that there was no order of court requiring the filing of its bond, where it made no objection upon that ground when the bond was introduced in evidence and the record showed that such bond had been duly approved by the court.
    3. Insane persons — waiver by surety of defense in action on bond based upon want of proof of legality of principal’s removal and successor’s appointment. The surety on the bond of a removed conservator cannot escape liability to his successor for its principal’s failure to account on the ground that the evidence fails to show that the former conservator was lawfully removed and hence that his successor was legally appointed, where such surety made no objection when the successor conservator introduced in evidence the minutes from the docket of the county judge showing that upon petition the conservator was removed and that his successor was appointed.
    4. Insane persons — right of successor conservator to elect upon which of predecessor’s bonds to maintain action. A surety upon the bond of a removed conservator cannot escape liability for the failure of its principal to account to his successor in respect of funds coming into such removed conservator’s hands through the sale of real estate of his ward, by reason of the fact that at the time such sale was authorized such removed conservator had given the additional bond required by statute, it being the right of the successor conservator to elect which bond to sue upon.
    Appeal by defendant from the Circuit Court of Franklin county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    Nealy I. Glenn, for appellant.
    Hart & Hart, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

E. E. Cockrum was appointed conservator for J. H. Cockrum on the 15th day of November, 1905, and filed his bond in the sum of $800 which was duly approved by the county court. A few months later he filed a petition to sell his ward’s real estate, and an additional bond in the sum of $6,000 was approved by the court.

On May 11, 1917, he filed a report showing that he then had on hand the sum of $4,258.68. On February 15, 1918, the court heard evidence on that report and approved the same, and on March 18, 1918, the conservator filed another bond in the sum of $9,000' with appellant as surety thereon. This latter bond was afterwards approved by the court. On October 5, 1918, the conservator was removed and John A. Cock-rum was appointed in his place. E. E. Cockrum having failed and refused to account to his successor for the funds in his hands this suit was brought upon the $9,000 bond. A jury was waived and the trial resulted in a judgment in debt for $9,000 and damages $5,716.63.

When appellee offered in evidence the conservator’s report of May 11, 1917, and which was approved by the court on February 15, 1918, the only objection offered thereto by appellant was that it did not show that the items of $3,406.48 and the interest thereon $817.55 were the proceeds derived from personal property or the rents, issues or profits of real estate. So far as the record shows appellant’s sole contention in the trial court was that the conservator having given the additional bond required by the statute upon a sale of real estate in 1906 there could be no recovery under the bond in question except for so much of the personal property and rents which were in the hands of the conservator at the time the bond in question was executed; in other words, that appellant assumed no liability whatever for any portion of the proceeds of the sale of the real estate that was made about twelve years prior to the execution of the bond sued on.

We are of the opinion that under the circumstances of this case when appellant executed this bond it became liable for all of the funds in the hands of the conservator including the proceeds from the sale of the real estate.

Appellant argues that there is no proof that the court entered an order requiring the conservator to file this bond. When the bond was offered in evidence appellant made no objection thereto and offered no suggestion that it should be first shown that the bond was required by an order of the court. It was shown that the bond was approved by the court and in the state of the record we would not be warranted in reversing the judgment on the ground that there was no order of the court requiring the giving of an additional bond.

It is argued that there was no sufficient evidence to show that the conservator was lawfully removed and that by reason thereof it does not appear that his successor was legally appointed. Appellee offered in evidence the minutes from the docket of the county judge showing that upon petition the conservator was removed and that his successor was appointed. No objection was made by appellant. In the absence of objection we are of the opinion that a sufficient showing was made. From what we have said it necessarily follows that the court did not err in refusing appellant’s first proposition of law.

The fact that the conservator gave the additional bond required by the statute at the time he sold the real estate in 1906 does not relieve appellant from liability on the bond in question. The present conservator had a right to elect to sue upon the last bond. Pinkstaff v. People, 59 Ill. 148. Finding no reversible error in the record the judgment is affirmed.

Affirmed.


text:
    Mollie Moore, Plaintiff in Error, v. The Ohio Oil Company, Defendant in Error.
    1. Negligence — when express allegation of existence of duty on p.art of defendant not required. In an action for damages for negligence it is not necessary that the declaration shall in express terms allege that it was the duty of the defendant to do or not to do a particular thing when the facts are alleged in such declaration from which such duty appears.
    2. Negligence — liability of landowner for injury to licensee upon premises resulting from owner’s affirmative act. Where a landowner has for some time knowingly permitted licensees to use a well-defined path or roadway across his premises he will be held responsible to such licensees for injury resulting from any affirmative act of such landowner rendering the roadway dangerous, if he has failed to give notice of the changed conditions.
    3. Negligence — extent of landowner’s duty towards mere licensee. An owner of land assumes no duty towards one upon the premises by permission, as a mere licensee, except to refrain from wilful or affirmative acts which are injurious to such licensee.
    4. Negligence — liability of lamdowner for injury from wire stretched across private roadway in absence of notice to licensee injured. Where a landowner has for a considerable period knowingly permitted use of a private road across its premises by persons visiting its employees resident upon such premises, its act in stretching a wire across such roadway was such an affirmative act rendering the use of the premises dangerous as imposed upon it liability for an injury resulting to such licensees, if it failed to give warning of the changed conditions.
    5. Negligence — when negligence of landowner stretching wire across roadway upon premises question for jury. In an action for injury to a licensee resulting from striking a wire stretched across a private roadway, negligence of the landowner held a question for the jury.
    6. Negligence — when contributory negligence of licensee injured by wire across private road question for jury. In an action for injury to a licensee resulting from driving an automobile against a wire stretched across a private driveway, the contributory negligence of the plaintiff held a question for the jury.
    Error by plaintiff to the Circuit Court of Lawrence county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed and remanded.
    Opinion filed July 9, 1926.
    Sumner & Lewis, for plaintiff in error.
    Gee & Gee, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.

In an action to recover for personal injuries plaintiff averred, in her declaration, that on October 17, 1924, and for a long time prior thereto defendant was in possession of a farm upon which it maintained a house for the use of one of its employees and also a certain roadway leading from the public highway to said house; that said roadway had been used for a long time, with the knowledge of defendant, by all persons going to and from said house; that on the day aforesaid defendant wrongfully, carelessly and negligently stretched a wire cable across said roadway at a point where it could not be readily seen; that it wrongfully, carelessly and negligently left the said wire so stretched as aforesaid without placing a flag or other signal at or near thereto and without providing any warning to persons who might have occasion to use said roadway; that on the day aforesaid plaintiff was riding in an automobile upon the said roadway on her way to said house to call upon the wife of defendant’s said employee, and while plaintiff was in the exercise of due care and caution for her own safety said automobile struck the said wire and plaintiff’s head and right hand were severely injured and she was otherwise cut, bruised and wounded. At the close of all the evidence the court directed a verdict for defendant.

The record discloses that the averments of the declaration were substantially proven. It further appears that the only way to reach the house in question from the public highway was over the roadway aforesaid. Plaintiff is an aunt of the wife of defendant’s employee who lived in the house aforesaid and had frequently visited her niece. In doing so she always used the said roadway as that was the only means of ingress and egress. Defendant’s foreman testified that the company built the roadway and kept it in good condition; that it made no attempt to keep people from using the same and that it never objected to people driving over the roadway to visit its employee or for any other purpose.

Defendant insists that plaintiff was a mere licensee to whom it owed no duty other than to refrain from inflicting a wilful injury upon her, and that by reason thereof the court properly directed a verdict in its favor. We cannot agree with that contention. In an action for damages for negligence it is not necessary that the declaration shall allege in express terms that it was the duty of the defendant to do or not to do a particular thing when the facts are alleged in the declaration from which such duty appears. Ramsay v. Tuthill Building Material Co., 295 Ill. 395.

The view founded in natural justice, which has the approval of many courts, is that when a landowner has knowingly permitted licensees to use a well defined path or roadway across his premises for some time he should not by any affirmative act make the roadway more dangerous for such licensees without giving them notice of the changed conditions, and if he fails to give notice of the fact that he has made the way more dangerous he will be held to respond in damages for the resulting injury. 20 A. L. R. 202, note; Corby v. Hill, 4 C. B. N. S. 556; Morrison v. Carpenter, 179 Mich. 207, 146 N. W. 106; Sage’s Adm’r v. Creech Coal Co., 194 Ky. 415, 240 S. W. 42; John v. Reich-McJunkin Dairy Co., 281 Pa. St. 543, 127 Atl. 143.

Where the public has been accustomed to travel a well defined road across one’s land, he is liable to a licensee for personal injuries occasioned by a wire or rope stretched across the road if he has given no warning of the changed condition. Morrow v. Sweeney, 10 Ind. App. 626, 38 N. E. 187; Carskaddon v. Mills, 5 Ind. App. 22, 31 N. E. 559; Nashville, C. & St. L. Ry. v. Blackwell, 201 Ala. 657, 79 So. 129; Holliday v. Hewitt, 15 N. S. W. St. Rep. 257, 8 British Ruling Cas. 573.

The courts of this State have frequently said that the owner of land assumes no duty to one who is on his premises by permission, as a mere licensee, except that he will refrain from wilful or affirmative acts which are injurious. Gibson v. Leonard, 143 Ill. 182; Eckels v. Maher, 137 Ill. App. 45; Jacobs v. Michel, 137 Ill. App. 221; Bousch v. Oblong Gas Co., 179 Ill. App. 600-604; Volluz v. East St. Louis L. & P. Co., 210 Ill. App. 565-569. So far as we are advised they have never had occasion to consider what “affirmative acts” would be sufficient to impose a liability upon the landowner. We are of the opinion that when defendant stretched the wire across the roadway without giving any warning of the changed condition it was such an affirmative act as would create a liability to one who was thereby injured while in the exercise of due care.

Defendant contends that the court properly directed a verdict because the evidence failed to show that it was guilty of negligence. In the state of the proof and the law as we understand it, the question of negligence was a question of fact for the jury.

Defendant contends, also, that the peremptory instruction was proper because plaintiff was guilty of contributory negligence. There was some evidence that one of defendant’s servants attempted to warn the plaintiff but in view of all the evidence the court was not warranted in assuming, as a matter of law, that plaintiff was guilty of contributory negligence. That question should be submitted to the jury.

For the reasons aforesaid the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Jennieve Craig, Appellee, v. William Boudouris and George Colovos, trading as Ideal Restaurant, Appellants.
    1. Workmen’s compensation — when business “mercantile establishment" within act. Persons operating a restaurant and in connection therewith selling at retail various articles of food, tobacco, candy and chewing gum, held conducting a “mercantile establishment” within the meaning of the Workmen’s Compensation Act.
    2. Workmen’s compensation — when business subject to statutory and ordinance regulation of machinery within act. A restaurant in the kitchen of which was an exhaust fan 3 or 4 feet in diameter, run by a motor of 3-horsepower, and a dough-mixing or meat-grinding machine operated by a 6-horsepower motor, and in the main room of which were ceiling fans, an electric sign and electric lights, all of which installation was subject to an ordinance imposing regulations governing the placement and safeguarding the same, held an establishment as to which statutory and municipal ordinance regulations were imposed for the regulating, guarding, use and placing of machinery and appliances for the protection and safeguarding of employees and the public within the Workmen’s Compensation Act.
    3. Workmen’s compensation — employee not worleing in part of premises containing power-driven machinery as within act. Where there was in an employer’s establishment power-driven machinery subject to statutory and ordinance regulation, an employee in such establishment was under the Workmen’s Compensation Act notwithstanding his employment did not require the performance of any duties in the part of the plant occupied by such machinery.
    4. Saving questions for review — when, motion for directed verdict sufficient to save question as to whether injured employee and one causing injury were fellow-servants. Where a declaration in an action for personal injury to an employee did not allege that the injured employee and the servant, whose negligence was alleged to have caused the injury, were not fellow-servants, and it did not appear from the averments of the declaration that such relation did not exist, the question as to whether such employees were fellow-servants was properly saved for review by the motion of the employer for a directed verdict, made at the close of the evidence.
    5. Masteb and servant — when question whether co-employees were fellow-servants one of law. In an action for injury to an employee through the alleged negligence of another employee of the same master, the question as to whether the employees in question were fellow-servants held one of law for the court, the facts in regard to the matter being undisputed.
    Appeal by defendants from the City Court of East St. Louis; the Hon. Sílas Cook, Judge, presiding. Heard in this court at the March term, 1926.
    Reversed.
    Opinion filed July 9, 1926.
    A. A. Alexander, C. E. Pope and H. F. Driemeyer, for appellants.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

Appellee, a waitress in appellants’ restaurant, in East St. Louis, sued to recover damages for a personal injury alleged to have been caused by the negligence of a colored porter in the employ of appellants. In addition to the general issue appellants pleaded specially that at the time in question they were conducting a mercantile establishment, an enterprise in which statutory and municipal regulations were imposed for regulating, guarding, use and plac- . ing of machinery and appliances, and for the protection and safeguarding of their employees and the public therein; that by reason thereof they and appellee were automatically under the Workmen’s Compensation Act [Cahill’s St. ch. 48, ¶ 201 et seq.]. Issues were joined and the trial resulted in a verdict and judgment for $1,500.

Appellants contend that the court erred in refusing to direct a verdict in their favor because they and appellee were subject to the Workmen’s Compensation Act. Section three (3) of that act provides that it shall apply automatically to all employers and to all their employees engaged in any department of any enterprise in which statutory or municipal ordinance regulations are imposed for the regulating, guarding, use or placing of machinery or appliances or for the protection and safeguarding of the employees or the public therein. Cahill’s St. (1925) ch. 48, ¶ 202.

Another statute provides: “That all power driven machinery * * *; all projecting set screws on moving parts; all * * *, belting, shafting, tables, * * *; all * * * and machinery of every description; all systems of electrical wiring or transmission; all dynamos and other electrical apparatus and appliances * * * in any factory, or mercantile establishment * * * shall be so located wherever possible, as not to be dangerous to employees or shall be properly enclosed, fenced or otherwise protected. All dangerous places in or about mercantile establishments, * * * near to which any employee is obliged to pass, or to be employed shall, where practicable, be properly enclosed, fenced or otherwise protected.” Cahill’s St. (1925) ch. 48, ¶ 143. By paragraph 164 [Cahill’s St. ch. 48, ¶ 164] of the same statute it is provided that it shall be the duty of every person, firm or corporation to which the provisions of said act applies, to carry out the same, and make all the changes and additions necessary therefor, and in every way to comply with all the provisions of the act. Paragraph 170 of the act [Cahill’s St. ch. 48, ¶ 170] declares that the term “mercantile establishment” shall include all concerns or places where goods, wares or merchandise are purchased or sold, either at wholesale or retail.

The undisputed evidence is that appellants conducted a restaurant in which they sold at retail oysters in bulk, fish, meat, cereals, milk, vegetables, pies, cakes, bread, olives, jelly, cigars, cigarettes, tobacco, candy and chewing gum, in addition to serving meals and lunches. In the kitchen of the restaurant there was a circular exhaust fan three or four feet in diameter, consisting of many steel blades, which was located in the west wall and used for the purpose of drawing the smoke and odors out of the room. The fan was operated by a 3-horsepower electric motor and they were attached by means of a shaft, pulley, belt and set-screw. There was a dough-mixing or meat grinding machine operated by a 6-horsepower electric motor. There were ceiling fans, an electric sign and electric lights. The wiring for the motors carried 440 volts, and the other wires 110 volts.

Appellee proved by the city electrician that there was a city ordinance which imposed regulations for the guarding and placing of electric motors, wires and other apparatus; that permits were required for the installation of motors; that it was his duty to see that the wiring was done in a safe and proper manner for the protection of employees and the public; that the wires had to be placed in conduits; that if the wires were exposed or the fan was near the floor and not properly guarded a permit to install the motors would not be granted; that the electric current in appellants’ place of business was strong enough to kill the average person. He also testified that he inspected appellants’ premises and found that the wires, motors and machinery were properly placed and guarded as required by the city ordinance, and that a permit was issued to appellants to use the same.

We see no escape from the conclusion that app ellants were conducting a “mercantile establishment,” as that term is defined by the statute, in which both statutory and municipal ordinance regulations were imposed for the regulating, guarding, use and placing of machinery and appliances for the protection and safeguarding of their employees and the public therein. That being true, the parties were subject to the Workmen’s Compensation Act regardless of the fact that appellee’s duties did not require her to work in the room where the power driven machinery was used. Marshall Field Co. v. Industrial Commission, 305 Ill. 134; Ascher Bros. Amusement Enterprises v. Industrial Commission, 311 Ill. 258. It follows, necessarily, that the court should have directed a verdict in favor of appellants.

Appellants also contend that even if the porter was guilty of negligence which caused the injury, yet the court should have directed a verdict in their favor because the uncontradicted evidence shows that the porter and appellee were fellow-servants. . Appellee does not argue that the relation of fellow-servants did not exist, but simply insists that appellants have not preserved that question for review. It has been held that a count in a declaration filed by a servant against the master which alleges that the plaintiff’s injury resulted from the negligence of other servants of the defendant should further allege that such servants were not fellow-servants of the plaintiff (Schillinger Bros. Co., v. Smith, 225 Ill. 74), but if it otherwise appears from the averments that such a relation did not exist the declaration is sufficient. Chicago & Alton R. Co. v. Swan, 176 Ill. 424; Bennett v. Chicago City Ry. Co., 243 Ill. 420. The declaration in the case at bar does not aver that appellee and the porter were not fellow-servants, nor does it appear from the averments that such a relation did not exist.

Appellants, at the close of all the evidence, moved the court to direct a verdict in their favor. It does not appear from the record that they did not contend that appellee and the porter were fellow-servants. We are of the opinion that the question as to whether the relation of fellow-servants existed between appellee and the porter was properly preserved by the motion for a directed verdict.

The question as to whether servants of a common master are fellow-servants within the meaning of the law is usually a question of fact. But if the facts are not in dispute and all reasonable men would readily agree as to the conclusion which should be drawn from the admitted facts, the question whether the relation of fellow-servant exists in a given case becomes a question of law. Kaminsky v. Chicago Rys. Co., 286 Ill. 271-277. In the case at bar we are of the opinion that the question as to whether the relation of fellow-servant existed was a question of law for the court, as there was no dispute about the facts in regard to that matter. The peremptory instruction should have been given for that reason.

The court did not inform the jury as to the meaning of the term “mercantile establishment.” By the first instruction given for appellee the court told the jury that the Workmen’s Compensation Act did not apply if her place of employment was being operated by the defendant merely as a restaurant and not as a mercantile establishment having dangerous place or places near to which any employee is obliged to pass or to be employed. We have no doubt that a restaurant in which there is power driven machinery and where goods, wares and merchandise are sold at retail is also a mercantile establishment within the meaning of the statute hereinabove referred to. The giving of this instruction was reversible error.

Appellants further contend that the court erred in refusing their first refused instruction. We have already held that their, peremptory instruction should have been given and for that reason it is unnecessary to pass upon this instruction. For the reasons aforesaid the judgment of the city court is reversed.

Reversed.

The clerk will incorporate in the judgment the following: “The Court finds that appellee and appellants were subject to the Workmen’s Compensation Act and that appellee is not entitled to maintain an action at law for damages; that appellee and the porter, through whose alleged negligence she claims to have been injured, were fellow-servants.”


text:
    Frank Hormberger, Appellee, v. Mamie Blackwell et al., Appellants.
    1. Fraudulent conveyances — effect of conveyance for less than true value. Where the consideration for a conveyance by an insolvent to his creditor is small as compared to the real value of the property, the conveyance will be regarded as voluntary as to the difference between the stated consideration and the real value, and to that extent it will be treated as fraudulent as against other creditors.
    2. Fraudulent conveyances — effect of conveyance of real estate hy insolvent to he held in trust for grantor. A conveyance of real estate by a debtor to another, to be held wholly or partly in trust for the grantor, is a fraud on his other creditors whether so intended or not, since it places beyond their reach a beneficial enjoyment of what rightfully belongs to them.
    3. Fraudulent conveyances — when evidence sufficient to show conveyance hy insolvent to creditor fraudulent as to other creditors. Where an insolvent conveyed property worth in excess of $7,500 to one to whom he was indebted in the sum of $3,000, for a stated consideration of $5,000, and it was agreed that the grantees would pay $1,000 to a son-in-law of the grantor and permit the grantor to occupy the demised premises, at a rental of $30 a month, until a second $1,000 was exhausted, in addition to canceling the indebtedness aforesaid, such conveyance was fraudulent as to other creditors.
    Appeal by defendants from the City Court of Bast St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    Kramer, Kramer & Campbell, R. E. Costello and Ralph F. Lesemann, for appellants.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

Appellants, Mamie Blackwell and Aurie E. Blackwell, her husband, on October 16, 1918, conveyed to appellee by warranty deed certain premises in the city of East St. Louis. At that time there was a mortgage on the premises for $1,800, which should have been satisfied by the Blackwells. Appellee sued them for a breach of the covenant against incumbrances and, on June 20, 1924, recovered a judgment for $2,440 and costs of suit.

The Blackwells owned a certain other house and lot at 2919 Caseyville Avenue in East St. Louis, and on September 14, 1922, they made a deed to appellant Wolzendorf, a sister of Mrs. Blackwell, which deed recited that the consideration therefor was $1.

Appellee filed a bill in the nature of a creditor’s bill to the May Term, 1925, of the city court in which he averred the recovery of the judgment aforesaid, the issue of the execution thereon, and the return of the sheriff showing that there was no property found; that the Blackwells conveyed their property to appellant Wolzendorf on September 14, 1922, as aforesaid, with the fraudulent intent of hindering, delaying and defrauding appellee; that the Blackwells retained some right, title or interest in the premises; that the said conveyance was a fraud upon the rights of appellee and the same should be set aside and the premises subjected to the payment of his said judgment, and the bill prayed that appellants be required to answer the same under oath.

Appellants filed verified answers to the effect that appellant Wolzendorf loaned the Blackwells about $3,000, which was used by them for the purchase of materials used in the erection of the building upon the premises in question; that shortly after the building was completed appellant Aurie E. Blackwell became sick and was unable to longer perform manual labor and was unable to repay Mrs. Wolzendorf, and that he agreed with her that he and his wife would deed the property to her in full satisfaction of her claim aforesaid. Issues were joined and the cause referred to the master in chancery, who recommended . a decree as prayed in the bill. Objections and exceptions to the master’s report were overruled and a decree entered as recommended.

If we accept the answers of appellants as absolutely true there is no escape from the conclusion that the conveyance was fraudulent and void as to appellee, to whom the Blackwells were indebted at the time of the conveyance. The answers show that the only consideration for the deed was $3,000 alleged to have been owing by the Blackwells to Mrs. Wolzendorf. The undisputed evidence is that at the time of the conveyance the premises were worth from $7,000 to $7,500. That being true it clearly appears that the Blackwells, while indebted to appellee, made a gift to Mrs. Wolzendorf of more than $4,000, and at a time when they were insolvent. Where the consideration is small compared with the real value of the property, the conveyance will be regarded as voluntary to the extent of the difference between the actual consideration and the real value of the property, and to that extent, will be treated as fraudulent and void as to existing creditors. Bartel v. Zimmer man, 293 Ill. 154; Keady v. White, 168 Ill. 76; Mathews v. Reinhardt, 149 Ill. 635-343; Snyder v. Partridge, 138 Ill. 173-186.

Appellants testified that at the time of the conveyance in question they fixed the value of the premises at $5,000; that $3,000 of the purchase price was to reimburse Mrs. Wolzendorf for money loaned by her to the Blackwells; that it was agreed that Mrs. Wolzendorf would pay $1,000 to Mr. Johnoff, a son-in-law of the Blackwells; that for the remaining $1,000 of the purchase price the Blackwells were to be permitted to occupy the premises in question at the rate of $30 per month until the $1,000 was exhausted. That testimony cannot be considered because the alleged facts were not relied upon in the answers. Appellants cannot rely on facts not set up in their answers even though the proof shows their existence. Millard v. Millard, 221 Ill. 86.

Even if we were at liberty to consider the testimony aforesaid, there is another reason why the decree should stand. The deed, in form, was an absolute conveyance of all the right, title and interest in the premises. The testimony shows that the Blackwells retained a secret interest in the premises, that is to say, they reserved the use of the premises for about three years from the date of the deed. The agreed consideration for the conveyance, according to the testimony, was $5,000, whereas the evidence shows the premises were worth from $7,000 to $7,500, so that on the basis that the testimony is true the Blackwells made a gift to Mrs. Wolzendorf of more than $2,000 and at the same time retained an interest in the premises to the extent of $1,000. A conveyance of real estate by a debtor to another, to be held wholly or in part in trust for him, is a fraud on the creditors whether so intended or not, as it places beyond their reach a valuable right and gives to the debtor a beneficial enjoyment of what rightfully belongs to them. McKey v. Cochran, 262 Ill. 376-384; Davidson v. Burke, 143 Ill. 139; Beidler v. Crane, 135 Ill. 92. In any view of the case the conveyance to Mrs. Wolzendorf was fraudulent and void as against appellee to the extent of more than $3,000. His judgment against the Blackwells is for $2,440. The decree is in accordance with the law and the evidence and must be affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    E. S. Hickman, Appellant, v. Grover Thacker, Appellee.

      Highways — liability of highway commissioner, for injuries due to insecurity of bridge where he is uÁthout funds to repair it. A highway commissioner who in good faith and to the best of his ability has employed the means at his command to keep a bridge under his jurisdiction in good condition cannot be held liable for injuries caused by the insecurity thereof, where it is neither alleged nor shown that he had funds with which to make repairs, even if he knew that it was in need of repair.
    Appeal by plaintiff from the Circuit Court of Fayette county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    F. M. Guinn, for appellant.
    Arthur Roe, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an action brought by appellant, E. S. Hickman, in the circuit court of Fayette county, to recover damages alleged to have been sustained by the falling in of a bridge in Bear Grove township in that county on the 28th day of July, 1924, while appellant was driving over it with a truck. Appellant and his family were at the time on a camping trip. The suit was originally brought against Grover Thacker, appellee, the highway commissioner of that township since April, 1924, Boy Atwood, his predecessor, and J. V. Waddell, county superintendent of highways. At the close of appellant’s evidence the suit was dismissed as to Boy Atwood and J. V. Waddell. On motion by appellee Grover Thacker, the court peremptorily instructed the jury to find for appellee. This appeal was perfected from the judgment entered on the verdict returned pursuant to that instruction.

In our view of the case it is not necessary to discuss the evidence in detail. While it tends to show that the bridge was not in a good condition of repair, and also that this fact had been brought to attention of appellee and his predecessor, yet there is no evidence whatever that either appellee or his predecessor had sufficient funds with which to make repairs. Neither is there any allegation in the declaration that appellee or his predecessor, Atwood, had sufficient funds or any funds, to make such repairs. If the declaration alleged and the evidence established that appellee had under his control the necessary funds to make the needed repairs or could have procured such funds by using the official means at his command, and that he under such circumstances knowing of the needed repairs negligently failed to make them, and by reason of such condition of the bridge and negligence on the part of appellee by failing to do the same, appellant suffered the injuries alleged, a different question would be presented.

The clear weight of authority applicable to this case is that a highway commissioner who in good faith and to the best of his ability has expended the means at his command cannot be held liable for the injuries caused by the insecurity of a bridge, which he did not have the funds to repair, even though he knew the bridge was not in a good condition of repair. Nagle v. Wakey, 161 Ill. 387; Pearl v. King, 179 Ill. App. 562.

In our opinion in the absence of any allegation in the declaration, or evidence, that appellee had the necessary means at his command to make the needed repairs or could have procured the same, appellant did not show any right of action and it was not error for the trial court to give the peremptory instruction in favor of appellee.

Judgment affirmed.


text:
    E. S. Bundy, Appellee, v. Nellie Hoyt and Celia Juda, Appellants.
    1. Estoppel — allegations of answer as precluding inconsistent defense. Where the answer of defendant to a bill to set aside a conveyance as in fraud of creditors expressly admits the validity of the judgment to which, complainant asks that the property so conveyed be subjected, defendant cannot be heard to contend that the judgment is invalid.
    2. Fbaudulent conveyances — right of subsequent creditor to attack conveyance by debtor as in fraud of creditors. It is not necessary for a creditor to prove, in order to sustain his bill to set aside a conveyance by the debtor as in fraud of creditors, that the indebtedness for which he seeks protection was in existence at the time of such conveyance.
    3. Fbattottlent conveyances — sufficiency of evidence to show conveyance in fraud of creditors. Evidence in a bill to set aside a conveyance held to support a finding that the conveyance was a fraud upon creditors.
    4. Fbattoulent conveyances — necessity that insolvency result from, conveyance to render same fraudulent as to creditors. Where it appeared, upon a bill to set aside a conveyance as in fraud of creditors, that the conveyance in question was fraudulent in fact, it was not necessary for the complainant, in order to be entitled to a decree subjecting the property to his debt, to show that the conveyance had rendered the defendant insolvent.
    5. Fraudulent conveyances — when knowledge of grantee of fraudulent intent of grantor not essential element. It is not a prerequisite to a decree for complainant on a bill to set aside a conveyance as in fraud of creditors, that there be proof that the grantee knew of the fraudulent intent of the grantor in making such conveyance, where the evidence did not show that such grantee was a purchaser for a valuable consideration.
    Appeal by defendants from the Circuit Court of Franklin county; the Hon. Junas C. Keen, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    J. E. Carr and George Sawyer, for appellants.
    Trobaugh & Church and Hart & Hart, for appellee; L. A. Cranston, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a bill in equity brought by E. S. Bundy, appellee, in the circuit court of Franklin county against appellants, Nellie Hoyt and Celia Juda, to set aside an alleged fraudulent conveyance executed on April 30, 1922, whereby certain lots in West Frankfort, Illinois, were conveyed by said Nellie Hoyt to said Celia Juda.

The bill also prayed that the property might be subjected to sale upon an execution issued upon a judgment which appellee had recovered against appellant Nellie Hoyt on October 18, 1923.

The bill alleges in substance that on October 18, 1923, appellee recovered a judgment in the circuit court of Franklin county against appellant Nellie Hoyt and E. C. Peters in the sum of' $720.60; that previous to the rendition of the judgment appellant Nellie Hoyt was the owner of certain real estate in the city of West Frankfort; that on March 7, 1924, appellant caused an execution to be issued on the judgment and delivered to the sheriff of that county, and that on May 13, 1924, the execution was duly levied upon the property.

The hill further alleges that on April 30, 1922, appellant Nellie Hoyt executed a pretended deed conveying the premises in question to Celia Juda for a pretended consideration of $7,000; that the conveyance was not real, but was made with the intention of defrauding appellee and other creditors of appellant, and that no consideration was paid by Celia Juda for the premises; that the same are now held by Celia Juda in trust for Nellie Hoyt, and for the purpose of preventing a levy and sale of the same under said execution; that prior to the pretended conveyance appellant Nellie Hoyt had occupied the premises as a homestead for many years, and has continued to occupy the same since such conveyance, and has continued to pay all taxes and assessments thereon; that ■Celia Juda is a sister of appellant Nellie Hoyt; that appellant Nellie Hoyt is a person of no financial responsibility and possessed of little or no other property, and that E. C. Peters the other judgment debtor is a person of no pecuniary responsibility, and has no property out of which said judgment may be made.

To the bill appellants filed a joint and several answer admitting that a judgment was entered in the circuit court of Franklin county on October 18, 1923, in favor of appellee and against appellant Nellie Hoyt and E. C. Peters for the sum of $720.60, and that before said judgment was entered Nellie Hoyt was the owner of premises described in the bill. The answer neither admits nor denies the issuance and service of execution as alleged in the bill. It admits the execution of the conveyance as alleged in the declaration prior to the rendition of the judgment, but denies that there was any indebtedness due appellee at that time, and alleges that any indebtedness appellee had against Nellie Hoyt accrued to him long after said conveyance was made. It further admits that the appellant Nellie Hoyt is occupying the premises in question, but alleges that she is occupying the same as a tenant of Celia Juda. It denies that appellant Nellie Hoyt has paid the taxes on the premises since the conveyance, but states that whatever taxes appear to have been paid by her were paid out of money furnished to her by Celia Juda and that Celia Juda is a near relative of said appellant.

The answer further admits that at the time the execution was served on her appellant Nellie Hoyt had no property and was in financial embarrassment, but alleges that at the time the conveyance in question was made she owned and was in possession of property and effects sufficient to meet all her obligations existing at that time. Other allegations of the bill are specifically denied.

It appears from the record that on the 25th day of November, 1922, one W. A. Kelly obtained a judgment in the circuit court of Franklin county by confession against E. C. Peters and appellant Nellie Hoyt for the sum of $720.60. On February 26, 1923, Peters filed his motion to open up this judgment, and for leave to plead, which motion was granted on the 5th of April, 1923, and at the same time leave was given to amend the declaration by making appellant' E. S. Bundy plaintiff, instead of W. A. Kelly. Various rules were entered upon Peters to plead and some pleas were filed, but it appears that on the 18th day of October, 1923, Peters having failed to plead further pursuant to the order of court was defaulted and judgment was entered against him in the sum of $720.60. A writ of scire facias was issued against appellant Nellie Hoyt who did not appear and she, upon default, was made a party to that judgment. That is the judgment mentioned in the declaration and upon which it is alleged the execution was issued.

Attorneys for appellants devoted a considerable portion of their argument to present a contention that the judgment in question was not a lien against the premises at the time the bill was filed for the reason that the second judgment, that is, the one entered October 18,-1923, did not do away with the one entered November 25, 1922. In other words it is contended that the first judgment was never set aside as to appellant Nellie Hoyt nor reversed, and that it is the only judgment upon which a bill to set aside the conveyance in question could have been predicated.

In our opinion appellants are in no position to raise this question for the reason that their answer expressly alleges “it is true the judgment was entered in the circuit court of Franklin county against defendant, Nellie Hoyt, and E. C. Peters on the 18th day of October, 1923, for the sum of $720.60 in favor of complainant as is alleged in the bill herein.” Appellant cannot be heard to deny this allegation of the bill which is expressly admitted by her answer and for the purposes of this suit it must be taken for granted that the judgment in question was a valid judgment. Since the evidence shows that an execution was issued on this judgment within one year and returned wholly unsatisfied, it necessarily follows that if the judgment is a valid one, it was a lien at the time the bill was filed.

Another reason urged by appellants for a reversal of this decree is that the evidence does not show that the debt in question was in existence at the time the conveyance was made by appellant. Neither of appellants testified in their own behalf nor did they introduce any evidence whatsoever. Although they were subpoenaed by appellee as witnesses they did not appear. The evidence does not clearly establish when the debt was contracted, but it tends to show that the son-in-law of appellant, Nellie Hoyt, purchased an automobile about May 31, 1921, for which he gave a note with said appellant, as surety, and this appears to be the indebtedness for which judgment was taken. If the conveyance was a fraud on creditors it was not necessary for appellee to prove, in order to sustain Ms bill, that the indebtedness in question existed at the time of the conveyance. In a case, substantially the same in principle as this, our Supreme Court said: “In such a case the conveyance is void as to existing and subsequent creditors. The fraud is a continuing one, and may actually operate as such as well in reference to debts contracted after as before the conveyance.” McKey v. Cochram, 262 Ill. 376, and cases cited. Under these authorities it was not necessary that appellant should have owed this indebtedness at the time the conveyance was executed to make such conveyance fraudulent as against creditors. In view of all the facts and circumstances in the evidence, we are not prepared to say that the chancellor erred in holding that the conveyance in question was a fraud upon creditors. Counsel for appellants state as another ground for a reversal of this decree that the proof does not show the grantee Celia Juda had any notice or knowledge of any fraudulent intention on the part of appellant Nellie Hoyt. Had the evidence shown that appellant Celia Juda was the purchaser of the premises in question for a valuable considera,tion, then the conveyance as to her would not have been void unless it was further shown that she had notice of the fraudulent intent of Nellie Hoyt, but such was not the case here. (Cahill’s St. ch. 59, ¶ 5.)

It is also claimed by appellants that the evidence ■ does not show that the conveyance of the property in question rendered appellant Nellie Hoyt insolvent. It was alleged in the bill that the conveyance was fraudulent in fact, and we cannot hold that the court was not justified in so finding. Under these circumstances it was not necessary for appellee to establish that the conveyance made appellant insolvent. State Bank of Clinton v. Barnett, 250 Ill. 312. The decree will therefore be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Gridley

text:
    L. J. Bartlett, Appellee, v. Earl Sullivan and John Sullivan, Appellants.
    Gen. No. 30,714.
    1. Hastes and servant — joint and several liability of master and servant. Where the liability of an owner of an automobile for injuries due to the negligent operation thereof by his servant is predicated solely upon the doctrine respondeat superior, a judgment against them jointly cannot stand, unless the evidence shows that the act complained of was directed or adopted by the master.
    2. Master and servant — sufficiency of evidence to show adoption by master of alleged negligent act of servant. Evidence in an action for injury by an automobile driven by a servant, the master not being present, held not to show that the master, after the fact, assumed responsibility for the alleged negligence of the servant.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. David A. Hebel, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed July 13, 1926.
    Orville D. Stuart and Edmond W. Pottle, for appellants.
    Garrett, McKenna & Harris, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In a fourth-class tort action commenced in the municipal court of Chicago for damage to plaintiff’s automobile, occasioned by another automobile, owned by John Sullivan and driven by Earl Sullivan, running into it on October 18, 1924, on the Dixie Highway, near Beecher, in Will County, Illinois, there was a finding and judgment for $482.30 against the defendants jointly, and they appealed.

It is alleged in plaintiff’s statement of claim in substance that his automobile at the time and place mentioned was standing still, facing south, on the right-hand side of the highway, with its left wheels a few feet west of the pavement; that the defendant, John Sullivan, “through his agent or servant, one Earl Sullivan,” so negligently drove and operated his automobile in a southerly direction along and upon said highway that, in consequence thereof, it ran into plaintiff’s automobile, thereby greatly damaging the same, etc.

We deem it unnecessary to discuss the evidence or the happenings upon the trial, further than to say that the evidence disclosed that John Sullivan was not in his automobile at the time and did not direct the alleged negligent acts of Earl Sullivan, his servant, and that before the finding and judgment were entered against both defendants they moved for a directed verdict in their favor upon the ground that it appeared that the plaintiff had “joined master and servant and there is no theory of the law under which a recovery can be had against both,” which motion the court denied.

The main contention of defendants’ counsel in this Appellate Court is, that the judgment against both defendants cannot stand, and for the reason that a master and servant are not jointly liable for the tort of the servant unless such tort is committed in the presence of the master or by his direction. Under the decided weight of authority, we are of the opinion that the present judgment against both defendants must be reversed and the cause remanded to the trial court, and plaintiff there be allowed to dismiss his action as to such defendant as he may elect, and make proper amendments.

The question arose and was elaborately discussed in the case of Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 637, where an action had been brought by a party injured, by reason of the alleged negligence of a locomotive engineer, against the railroad company and the engineer jointly. The syllabus, fully sustained by the opinion, says (p. 638): “When a master is made liable for the negligent or wrongful act of his servant solely upon the ground of the relationship between them, under the doctrine of respondeat superior, and not by reason of any personal share in the negligent or wrongful act, by his presence or express direction, he is liable severally only and not jointly with the servant.” The writer of the opinion, Circuit Judge Taft, after stating (p. 641) that the question was one upon which the authorities did not agree, reviewed a number of cases, and finally reached the conclusions (p. 647): “On principle, we have no hesitation in taking the view so logically upheld by the Massachusetts courts, and in deciding that a suit against a principal and the agent, by the mere negligence of the agent, in the absence of the principal, is a misjoinder, and that the causes of action are not joint, but several. * * * The engineer in this case was improperly joined as a defendant with the railway company.”

The question has several times been before the Appellate Courts of this State. In Johnson v. Magnuson, 68 Ill. App. 448, it appears that plaintiff in the trial court had recovered a verdict and judgment in an action of case brought by her against two defendants jointly, Johnson and Anderson, for being run over and injured by a horse and sleigh, owned by Johnson and driven by Anderson, the former’s servant. The judgment was affirmed. This decision was not followed by a majority of the court in Herman Berghoff Brewing Co. v. Prsbylski, 82 Ill. App. 361. In the last-named case it appears that a small boy, playing in a street, was run over by a team and wagon, owned by the Brewing Company and driven by one Loseniecki, servant of the Brewing Company. Suit was brought to recover damages for the boy’s injuries against the Brewing Company and Loseniecki and a verdict and judgment were rendered against them jointly. The judgment was reversed and the cause remanded on the sole ground that the defendants were not jointly liable for the injuries sustained by the boy. In the opinion, after making an exhaustive review of the authorities, it is said in conclusion (p. 374): “A judgment cannot be sustained against the master and servant jointly in a case where the master is liable only upon the doctrine of respondeat superior. The act of a servant is not the act of the master unless the act complained of is directed or adopted by the master.” This Przbylsld case has been cited with approval in McNemar v. Cohn, 115 Ill. App. 31, 36, and in Scherrer v. Foster, 5 Fed. (2d) 236, 237; The Warax case, supra, has been cited with approval in several cases decided by United States courts, among which may be mentioned: Gableman v. Peoria, D. & E. Ry. Co., 82 Fed. 790, 792; Helms v. Northern Pac. Ry. Co., 120 Fed. 389, 394.

Counsel for plaintiff in his printed brief directs our attention to the sentence in the opinion in the Przbylslci case, supra, viz.: “The act of a servant is not the act of the master unless the act complained of is directed or adopted by the master.” He then states that the evidence in the present case shows that “John Sullivan assumed the responsibility for the acts of Earl Sullivan,” and refers to a portion of the testimony of plaintiff, wherein he testified that on the day following the accident he telephoned John Sullivan, and that the latter said that “his son had explained the accident * * * and his son accepted responsibility for it entirely.” Even assuming this testimony to be competent, it does not show that John Sullivan “assumed” or accepted any responsibility for the acts of Earl Sullivan.

In view of the foregoing, it is unnecessary for us to discuss the other ground urged by defendants’ counsel for a reversal of the judgment, viz., that plaintiff did not prove by competent evidence his damages.

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

Reversed <md remanded.

Fitch and Barnes, JJ., concur.


author: Mr. Justice Barnes

text:
    Lillian Noble Keene, Appellant, v. William J. Keene, Appellee.
    Gen. No. 30,229.
    1. Divorce — prerequisites to jurisdiction to entertain petition for modification of alimony allowance. Under the provisions of Cahill’s St. ch. 40, fl 19, the court is without jurisdiction to consider or act upon a petition for modification of an allowance of alimony unless such allowance was made at the time the decree of divorce was entered, or jurisdiction of the subject was reserved therein.
    2. Divorce — construction of divorce decree as to intention of court to reserve jurisdiction to modify alimony allowance fixed l>y agreement between parties. Where an agreement between the parties to a suit for divorce touching the matter of alimony was not incorporated in the divorce decree, the fact that the court recited, in its findings, “that adequate provision has been made by the defendant for the support and maintenance of complainant * * * evidenced by a written agreement between the parties exhibited to this court,” does not show an intention on the part of the court to reserve jurisdiction to modify the allowance of alimony made by such agreement, especially where the court, on making the decree, struck therefrom a provision expressly reserving such jurisdiction.
    3. Divorce — construction of divorce decree as to intention of court to reserve jurisdiction to modify alimony allowance fixed 6y agreement of parties. No intention on the part of the court, in decreeing a divorce, to reserve jurisdiction of the subject of alimony, can be inferred from the fact that the decretal order, after decreeing that the bonds of matrimony between the parties are wholly dissolved and the parties forever freed from the obligations thereof, adds, “and that, except as provided for by statute, all duties, titles, rights, claims and obligations accruing to either of said parties by reason of said marriage shall henceforth cease and be determined and they are hereby forever terminated,” especially where it appears that the court struck from the decree a provision thereof expressly reserving jurisdiction of the subject of alimony.
    4. Divorce — when want of jurisdiction to entertain petition for modification of alimony allowance not waived. Want of jurisdiction in the court to consider a petition to increase an allowance of alimony, arising from the fact that the decree contained neither a provision for alimony nor one reserving jurisdiction of that subject, is not waived by taking issue on the averments of the petition for such increase, where such course on the part of the defendant resulted from the erroneous ruling of the court upon defendant’s demurrer to the petition, induced by the form of the averments thereof.
    5. Divorce — averment of fraud in procuring agreement fixing alimony allowance as giving jurisdiction to entertain petition to modify allowance, notwithstanding want of jurisdictional requirements fixed by Cahill’s St. ch. JjO, fl 19. Absent the jurisdictional prerequisites to a consideration of a petition for modification of an allowance of alimony pursuant to Cahill’s St. ch. 40, ff 19, the court is without jurisdiction to take cognizance of averments in such petition to the effect that the signature of the complainant to the agreement providing for such alimony was procured by fraud, notwithstanding the petition included a prayer for “any other equitable relief.”
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Thomas Lynch, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed July 13, 1926.
    Taylor, Miller, Dickinson & Smith, for appellant.
    Good, Childs, Bobb & Wescott, for appellee; Dwight S. Bobb and F. M. Hartman, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is a divorce suit. By a decree entered therein June 23, 1921, appellant (the complainant) was granted a divorce from appellee.

On the theory that the court still retained jurisdiction of the subject of alimony appellant at a subsequent term, December 7,1923, filed her petition in the case, setting forth an agreement between the parties for the support and maintenance of appellant, which was made outside of court before entry of the decree, and by which she was to receive an annuity of $2,000 and a trust fund was to be established for their minor child. The rights of the latter are not here involved. The petition avers that by such agreement appellee agreed and “was ordered to pay” petitioner the sum of $2,000 per year as alimony allowance, and, after setting forth in substance that she was induced to sign said agreement by false representations and fraudulent concealment of appellee’s financial condition, prays that appellee may be ordered to pay her a sum of money “in excess of $2,000 per year” and for such other relief as shall seem just and fair.

A demurrer to the petition, alleging, among other things, that the decree and said agreement constituted a bar to the maintenance of the petition and the relief prayed for, was overruled. Respondent then filed a plea, which was also overruled and need not be discussed. Under rule of the court he then filed his answer, and among other denials took issue on the averments in the petition, that in and by the final decree for divorce the court “ordered payment of the sum of $2,000 as alimony allowance,” and that he made false representations and fraudulent concealment of his financial condition when the agreement was entered into. The answer pleaded many immaterial matters, and, in substance, that pursuant to petitioner’s agreement not to ask for or receive alimony in said divorce suit, a provision reserving jurisdiction of the allowance of alimony was stricken out of the draft of the decree finally consented to.

After a hearing on these issues the court entered a decretal order finding that it was without jurisdiction to modify the decree of divorce, and dismissed the petition. From such order this appeal is taken.

It has been settled beyond controversy that before an allowance for alimony can be considered or modiv fied, under the provisions of section 18 of the Divorce Act [Cahill’s St. ch. 40, ¶ 19], such allowance must have been made at the time the decree was entered. (Kelley v. Kelley, 317 Ill. 104; Herrick v. Herrick, 319 Ill. 146; Smith v. Johnson, 321 Ill. 134.) In the instant case the decree of divorce neither made an allowance for alimony nor reserved jurisdiction of the subject. Mere inspection of it should have led the court to sustain the demurrer to the petition. But it evidently viewed the petition as presenting questions of fact on that subject, and required the parties to take issue accordingly, petitioner alleging, and respondent denying, among other things, that the decree provided for the payment of $2,000 a year alimony. The agreement providing for such payment was not incorporated in the decree nor in any way made a part thereof. The only reference in the decree to the agreement or the subject of alimony is in the recital of the court’s findings, “that adequate provision has been made by the defendant for the support and maintenance of complainant * * * evidenced by a written agreement between the parties hereto exhibited to this court.” It is mainly upon this recital that appellant bases her contention that the decree provides for alimony. But such reference is entirely consistent with the frequent practice of settlement for alimony out of court and tends to explain why no provision for alimony, as prayed for in the bill, was made by the court. The court, notwithstanding such agreement, could have exercised its power to grant alimony if it saw fit to do so, or by consent of the parties have incorporated the agreement in the decree as a provision for alimony, as was done in the Herrick case. It did neither but left the matter resting in contract between the parties, as manifestly intended by the terms of the instrument itself.

In People v. Spring Lake Drainage & Levee Dist., 253 Ill. 479, it was held that a decree dismissing a suit as per a stipulation therein and made a part of the record of the court did not make such stipulation a part of the decree of the court. But here there is even no semblance of such an understanding. As we read the decree in the instant case it is unambiguous, and no necessity, therefore, arose for resort to aid for its construction. After finding the necessary jurisdictional facts and that adequate provision has been made for the support and maintenance of both the wife and minor child by agreement between the parties, the decree, without any further reference to the agreement or the subject of alimony, proceeds in its decretal part merely to order a dissolution of the marriage.

Appellant argues that a part of the decretal order “gives color” to an intention to reserve jurisdiction of the subject of alimony, because after expressly decreeing that the bonds of matrimony are wholly dissolved and that the parties are forever freed from the obligations thereof, it adds, “and that, except as provided for by statute, all duties, titles, rights, claims and obligations accruing to either of said parties by reason of said marriage shall henceforth cease and be determined and they hereby are forever terminated. ’ * This language is mere surplusage. It adds nothing to the decree. To construe it as an intention to reserve jurisdiction of the court over the subject of alimony with no words of express reference to the subject, ignores the element of certainty which should characterize all decrees. It cannot reasonably be supposed that the court in dealing with such a common and important subject would not have employed more direct and explicit language to express such an intention. It would not be left to conjecture or remote implication.

But if it could be said that there is ambiguity in the decree as would authorize the court in looking to the record to construe it, yet the facts appearing in the certificate of evidence that the court struck from the draft of the decree an express provision reserving jurisdiction of the subject of alimony, and was told by complainant while on the witness stand that she was satisfied with the financial arrangement that had been made for her “outside of court,” confirm the conclusion that the above-quoted language of the decree was not intended to reserve jurisdiction of the subject of alimony. “A decree for divorce is like a final decree in any other case and cannot be changed except in so far as the statute granting the power to award alimony to the wife authorizes the court to alter it to meet new conditions.” (Herrick v. Herrick, supra.) As, therefore, the decree made no provision for alimony it was not subject to modification under section 18 of the Divorce Act, and the court, therefore, had no power to entertain a petition therefor. The cases above cited are conclusive on that subject.

The contention of appellant that appellee waived the question of jurisdiction by taking issue on the averments of the petition and going to a hearing thereon is untenable. True, appellee was led by the court’s rulings in support of the petitioner’s contention to make an issue of fact of what could have been decided by an inspection of the decree, and the court accordingly heard extrinsic evidence bearing on its construction. As the form of the averments in the petition apparently led the court into this error, we think appellant is in no position to charge the consequences thereof to appellee. The authorities relied on to support appellant’s contention of waiver of jurisdiction are not pertinent. The court finally and properly decided, even on the evidence, that it did not have jurisdiction to entertain the petition, as the decree did not contain any provision or order for the payment of alimony or any provision reserving the question of alimony, and was binding as a final decree upon the parties and upon the court.

But appellant’s counsel also contend that the case having gone to a hearing on the issue of fraud, appellant was entitled to a decision on that subject. The charge of fraud has no place in a petition of this kind except as it might bear on the question of a change of conditions that would authorize the exercise of the court’s power,to modify a decree that provides for alimony. While the petition prayed for “any other equitable relief” its function was not that of an independent bill in equity, and could not be so treated. The court could not entertain it on any other theory than as an application to change the decree as provided by section 18 of the Divorce Act, and had no jurisdiction under that form of procedure to inquire into the claim of fraud in the procuration of the contract. (Smith v. Johnson, supra.) The court manifestly considered the question of fraud only so far as it had a bearing on its authority to modify the decree as to alimony, if the decree was to be construed as making an allowance therefor. Whether, therefore, we view the court’s order as based on a conclusion of law or of fact as to its jurisdiction its order dismissing the petition was the only one it could properly make. Accordingly it is affirmed.

Affirmed.

Gridley, P. J., and Fitch, J., concur.


text:
    John Jucker, Appellee, v. Dorsey E. Crowe and Stephen A. Crowe, Jr., Appellants.
    Gen. No. 30,762.
    Accounts stated — evidence admissible to impeach account stated where improbability of defendants’ agreement to same appears. Where the issue raised between the parties in an action based upon the furnishing of labor and material was solely as to the existence of an account stated, and there was evidence indicating a specific contract between the parties on a cost plus basis and that the alleged account stated was for a sum approximately double the estimated cost of the work, but no evidence as to what the work consisted of or as to the cost of the same, there was a sufficient improbability of defendants’ agreement to pay the account alleged to have been stated to entitle them to prove the actual contract and actual cost of the work, or the reasonable cost of the work if the actual cost could not be shown.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. H. L. Chapman, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed July 13, 1926.
    Rehearing denied July 24, 1926.
    McCormick, Kirkland, Patterson & Fleming, for appellants; Joseph B. Fleming, W. H. Symmes, R. D. Hathaway and Allan W. Cook, of counsel.
    Harris, Reinhardt & Russell, for appellee; John T. Murray and John A. Russell, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

John Jucker, a contractor, filed his statement of claim alleging performance of a contract between him and defendants to furnish labor and materials in connection with the altering, repairing and decorating of a building belonging to them, claiming as the sum due him $10,018.32. In their affidavit of merits filed thereto defendants admitted entering into an agreement, but alleged it was on an estimated cost of $4,070, and denied the terms of the contract as alleged in the statement of claim. They also alleged that the material was defective and the work poorly performed. Afterwards plaintiff amended his statement of claim by adding thereto a claim or count for an account stated for said sum, and a promise to pay the same. Defendants filed an amended affidavit of merits adding to the averments already filed a denial of an account stated.

Plaintiff made no attempt to prove the contract or specific performance thereof but rested his case on evidence tending to prove an account stated, and it is agreed that the real question in issue at the trial was whether an account stated was had between the parties. The only point we need consider is whether the court erroneously rejected evidence bearing on that issue.

In support of his claim of a stated account plaintiff introduced letters from plaintiff addressed to defendant Dorsey B. Crowe. In the one of October 6, 1924, he inclosed a statement of account for work done up to that time, purporting to be on the basis of the cost of the work plus the actual overhead of 5 per cent, amounting to $2,920.49. Another letter under date of January 27, 1925, inclosed a final statement purporting to be on the same basis, for the sum of $9,147.16. Apparently according to some previous understanding to both statements was added and then deducted “10% profits.” These statements and accompanying letters indicated a previous agreement on such a basis. Under date of March 10,1925, plaintiff addressed a letter to S. A. Crowe, Jr., inclosing copies of invoices and estimates not submitted with the original statements, and referred to the fact that the estimate first made was for $4,680.50 but limited to certain work. Other letters from- plaintiff to defendant Dorsey B. Crowe, dated February 7 and March 2, 1925, respectively, reminded him of the account as previously submitted, and that it had not been paid.

After proving receipt of these letters plaintiff testified to conversations had in the month of January, 1925, with Stephen Crowe, to the effect that the latter would have Dorsey send a check for the account. Plaintiff never discussed the final bill with Dorsey Crowe. Plaintiff’s employee, Horgan, testified that he took the letter of January 25, 1925, and the statement of account attached thereto to defendant’s office and saw defendant Stephen Crowe, and that the latter said he would take the matter up with his brother Dorsey, and send a check, and not receiving a check he had subsequent conversations with Stephen, practically to the same effect. There was evidence tending to show that after reaching an understanding on an original submitted estimate of cost on the basis above stated the parties agreed to additional work, the amount of which does not appear from the statements or proof.

Both defendants testified. Dorsey Crowe testified that in January, before the submission of the final statement of account and after he had viewed the premises, and evidently after additional or extra w;ork had been done, he asked Jucker what the bill was going to be and Jucker said it would be about twice the amount of the bill for $2,290.49 already submitted; that he asked for bills on the extra work and produced at that time the original estimate prepared by plaintiff detailing the cost of the work, amounting to $4,070, to which was added an overhead expense of 5 per cent, and a profit of 10 per cent, a total of $4,680.50. He further testified that after receiving plaintiff’s statement of account rendered January 25, 1925, not being able to; reach plaintiff personally he talked with his office manager over the telephone and protested against the amount of the bill, and denied that he ever told Jucker he would pay the bill. Stephen testified that after receiving said final statement of account he told plaintiff he would not pay it; that it was entirely out of reason; that his brother Dorsey had told him to tell plaintiff that he would not pay it, and that he could not accept $9,100 for work estimated at about $4,000, aside from a few reasonable extras. He also denied making a promise to Horgan that he would pay. His version of the conversation with plaintiff was corroborated in substance by two other witnesses who claimed to have been present. In rebuttal plaintiff denied having the conversations testified to by Dorsey Crowe, and Horgan denied the conversations testified to by Stephen Crowe.

As to whether there was an express or implied promise to pay the account as submitted in said final statement the evidence is so conflicting it can hardly be said to preponderate either way. It is therefore important to determine whether the court erred in rejecting evidence offered by appellants.

The court rejected evidence offered by defendants to the effect that the value of the work done and the materials furnished by the plaintiff in connection with the repairing, altering and decorating of defendants’ home was in a sum less than $6,000. It is urged that such evidence was admissible on the theory that if the value of such work and materials was in a sum less than $6,000' it is highly improbable that defendants would have expressly assented to a bill for over $9,000. The court also rejected evidence offered by defendants that there was a contract between the parties to the suit under the terms of which plaintiff agreed to do the work and furnish the materials in question for the sum of $4,070, plus a small amount for extras, and certain additional percentages. It is urged by appellants that the evidence last offered was admissible not only for the purpose of showing that it was highly improbable that defendants subsequently agreed to pay a higher amount than that agreed upon in the contract, but for the further and additional purpose of showing that the defendants were already completely bound to pay a specific sum, to wit, the sum of $4,070, plus a reasonable amount for extras, and “5% overhead,” and therefore there was no consideration for a promise on their part to pay a sum in excess thereof.

The case- at bar was tried wholly upon the theory of an account stated and its existence was put in issue. In Coffee v. Williams, 103 Cal. 550, 37 Pac. 504, the existence of a stated account as alleged by the plaintiff was denied, and defendant in corroboration of his own statement offered evidence of a character to show that it was highly improbable that there could have been an' account stated. The evidence was rejected by the trial court, but the court of review decided that the ruling was error. While the court recognized the general rule that when there is an account stated parties cannot go back and attack the original items of the account except where a party has been misled by fraud, mistake or manifest error, the court held that the defendant had the right to show, if he could, the inherent improbability of his agreement to such an account, and, to that end, evidence was admissible of at least the' general nature of the circumstances and of the business between the parties, and the character of the objections made by the defendant to the items of the alleged account stated. (See also 1 Corpus Juris, p. 738.) There were like rulings on somewhat similar facts in Kaminsky v. Mendelson, 25 Misc. 500, 54 N. Y. Supp. 1010; Clare v. Kelley, 188 App. Div. 665, 177 N. Y. Supp. 212; Field v. Knapp, 108 N. Y. 87, 13 N. E. 829.

Plaintiff saw fit to abandon proof of the contract itself and of performance thereunder, and relied wholly on evidence of a stated account and an express promise to pay the same. Not only was the express promise denied by equally cogent evidence, but defendants made proof of their protest and refusal to pay because of the excess of charges over the sum agreed upon, which was so great as to render it highly improbable that defendants would have acquiesced in the final statement, or have expressly promised to pay it, unless the “extras” make up the excess. But there was no proof as to their cost or value, and according to the testimony of Dorsey Crowe the entire cost was not to exceed, or was to be, approximately, $6,000.

In view of these facts and of evidence indicating a specific contract between the parties on a cost basis and an additional percentage, and of the absence of proof of what the work consisted or cost of the same, we think there was sufficient improbability of defendants ’ agreement to pay the account to entitle them to make proof of the actual contract and the actual cost of the work, if that was the basis of the contract, or the reasonable value thereof if the actual cost could not be shown.

There are also authorities to the, effect that an account stated will not be permitted to be substituted for a specific agreement as to the price, particularly where the agreement is in writing. It has been held that the action in such a case must be upon the original promise in writing and not upon an account stated. See Bennett v. Potter, 180 Cal. 736, 183 Pac. 156, and cases there cited. Other cases having some bearing on the principle are Gallinger v. Lake Shore Traffic Co., 67 Wis. 529, 30 N. W. 790; Valley Lumber Co. v. Smith, 71 Wis. 304, 37 N. W. 412; Kusterer Brewing Co. v. Friar, 99 Mich. 190, 58 N. W. 52. They recognize the principle that where there is a contract in writing between the parties as to price, it is higher evidence of the amount due and cannot be supplanted by an alleged controverted stated account for which there is no additional consideration.

Reversed and remanded.

Gridley, P. J., and Fitch, J., concur.