author: Mr. Justice Hall

text:
    The People of the State of Illinois, Defendant in Error, v. Martin S. Furman, Plaintiff in Error. In re Commitment of Martin S. Furman, Plaintiff in Error, for Contempt of Court in the Case of People ex rel. Oscar Nelson v. Roseland State Savings Bank.
    Gen. No. 36,011.
    Opinion filed February 8, 1933.
    Benjamin H. Vanderveld, for plaintiff in error; Eugene E. Bruckner, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error; Angus Boy Shannon, Elwood Gr. G-odman and Edward B. Johnston, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

By this writ of error it is sought to review an order of the circuit court of Cook county, committing Martin S. Furman to the county jail of Cook county for an alleged direct contempt of court, based upon a charge of giving false testimony in a proceeding instituted in the circuit court of Cook county by one Beinecke, receiver of the Boseland State Savings Bank, to discover assets of this bank.

The record consists of the order of commitment, and the assignment of errors. The order of commitment recites the following:

“That the court finds it necessary in aid of the receivership estate and in aid of the rights and duties of said receiver to examine witnesses who the court finds have or had information and knowledge of the existence, whereabouts, and character of assets and property which rightfully belong to the receiver as part of the receivership estate, but which said receiver has not been able to find, locate, or reduce to his possession.

“That upon a hearing of said cause on the 27th day of April, 1932, and at hearings held thereafter in open court pursuant to said petition, said petitioner and receiver herein was duly represented by counsel, and that the respondent, Martin S. Furman, had been subpoenaed to be present as a witness to testify in open court at said hearings, and tendered himself for examination; and, after having been duly sworn, appeared and testified at said hearings.

“That at a hearing on April 27, 1932, the said Martin S. Furman testified that approximately eight months prior to April 27, 1932, he had collected the sum of $800, which sum he did not deposit in any bank for the reason that he feared the solvency of the banks, but did turn over said money in currency to his wife, Pauline Furman; that she kept said money for him in their home, but several months later returned said money to him, and he thereupon deposited said money in an iron safe in his office, and used said money with which to pay several items of indebtedness owing by him.

“That at a subsequent hearing, on the 28th day of April, 1932, the wife of said respondent, Pauline Fur-man, appeared as a witness at said hearing and testified that in the month of January, 1932, said respondent, Martin S. Furman, turned over and delivered to her the sum of $800 in currency; that she kept said sum of money in a clothes closet in their home, and returned it to respondent in two installments in the month of March, 1932.

“That at said hearing of April 28, 1932, respondent was recalled as a witness and admitted the said sum of $800 was collected by him on January 19, 1932, and. that delivery of said sum of money to his wife was made on or about the 19th day of January, 1932, and that said sum was returned to him by his wife in March of 1932, in installments, as had been testified to by his said wife; and said respondent admitted that his testimony in respect to the time of collection of said sum of $800 and the time of delivery thereof to his said wife, as given at the previous hearing on April 27, 1932, was untrue; and said respondent, Martin'S. Furman, did further testify that on and after the 20th day of January, 1932, he deposited substantial sums of money to his credit in the South Chicago Savings Bank, despite the fact that he had previously testified on the 27th day of April, 1932, he did not deposit said sum of $800 in a bank because he was afraid any bank might close.

“That the court finds from the testimony of Pauline Furman, as well as from admissions made by said respondent, said respondent, Martin S. Furman, wilfully testified falsely as to a material matter, the subject matter of investigation by the court, and has been guilty of a direct contempt, which was wilfully committed with the intent to embarrass and impede the administration of justice in said cause.

“That it is ordered that the respondent, Martin S. Furman, on the facts as above found, occurring in open court, be and he is hereby for said contempt committed to the County Jail for a period of ten days, or until otherwise discharged by due process of law.”

This order is erroneous for two reasons, viz.: no facts are set forth in the order showing how or why any of the matters or things inquired about were in the slightest decree material to the issue; neither does it appear from the order that Martin S. Furman was present in court when the order was entered. In general, the charge set forth in the order upon which the alleged perjury is based is that the respondent collected $800 from a person not named, and that on one occasion, in the hearing referred to, among other things, testified that he had turned it over to his wife on a certain date, and on another occasion testified that he had deposited Some of the money in the South Chicago Savings Bank on another date. Nowhere in the order does it appear that the Roseland State Savings Bank had any interest whatever in the fund about which respondent testified, or that respondent was indebted to Roseland State Savings Bank. Therefore, his testimony was not material to any issue before the court.

In People v. Bain, 268 Ill. App. 192, this court said:

“The order is fatally vulnerable in two respects. It does not affirmatively show that Robert A. Bain was present in court when the order was entered. That this is necessary has been repeatedly held. Rawson v. Rawson, 35 Ill. App. 505; People v. Saylor, 238 Ill. App. 142; Tunnell v. People, 253 Ill. App. 422; Barclay v. Barclay, 184 Ill. 471. It is argued that as the order recites that a hearing was had on November 18, 1931, the law will presume that the order of commitment was entered on that date and that Robert Bain was present in court at the time. In a criminal contempt proceeding no presumptions of law obtain. Cases involving civil contempt are not in point. The presence of the alleged contemnor cannot be inferred but must be shown affirmatively by the record. Harris v. People, 130 Ill. 457; People v. McGrane, 336 Ill. 404; People v. Moran, 342 Ill, 478; People v. Saylor, 238 Ill. App. 142; Tunnell v. People, 253 Ill. App. 422.

“The second reason for holding the order void is that no facts appear therein from which we can determine whether the alleged false testimony was material to the issues heard. The order must set forth the facts so fully and certainly as to show that the contempt was actually committed. People v. Hogan, 256 Ill. 496; People v. Rockola, 346 Ill. 27. The assertion in the order that it was material to ascertain what financial interest Robert A. Bain had in the South Side Agency & Loan Corporation, is merely a conclusion and does not show that this inquiry was material in an investigation of the assets of John Bain, Inc. People v. Freeman, 256 Ill. App. 233, is cited by counsel for the State as holding to the contrary, but an examination of the opinion and of the record in that case shows that the testimony is set forth in full in the form of questions and answers in the order of commitment. It was virtually a bill of exceptions, from which the reviewing court could ascertain the materiality of the testimony. The same is true in the case of People v. Rockola, 346 Ill. 27.”

For the reasons stated, and in view of the above holding, the order of the circuit court is reversed.

Reversed.

Wilsoh, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Sadie C. Schiavone et al., Appellees, v. Catherine Ashton, Appellant. Catherine Ashton, Appellant, v. Sadie C. Schiavone et al., Appellees.
    Gen. No. 35,694.

      Opinion filed February 8, 1933.
    L. F. Binkley and William E. Mooney, for appellant.
    Frederick A. Brown, for appellees; Wm. G. Worthey and Edward D. Lapperre, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

In this case Sadie C. Sehiavone and Michael F. Sehiavone brought their bill in equity against Catherine Ashton to set aside and hold for naught a contract dated September 25, 1924, in and by which they had agreed to sell a vacant lot in Chicago to Mrs. Ashton. Mrs. Ashton filed an answer and cross-bill to specifically perform the contract. A decree was entered by the court canceling the contract and denying specific performance. Upon an appeal to the Supreme Court, Schiavone v. Ashton, 332 Ill. 484, an opinion was filed and judgment entered at the December 1928 term, reversing and remanding the cause with directions to enter a decree dismissing the original bill and granting specific performance in accordance with the prayer of the cross-bill. In the instant case, after reversal by the Supreme Court, supplemental bills of complaint were .filed by Mr. and Mrs. Sehiavone and Mrs. Ashton, in which Mr. and Mrs. Sehiavone, in their supplemental bill, seek to prevent conveyance of the property until they are compensated for or permitted to remove improvements made on the property during the litigation, and Mrs. Ashton, in her supplemental bill, seeks to remove certain mortgages made during the litigation, cancel leases, obtain possession and damages for the loss which she has sustained because Mr. and Mrs. Sehiavone have refused to convey on time as agreed in their contract.

The case was again referred to a master, who made his report, together with an additional and supplemental report. Objections filed to the report by all parties were overruled and ordered to stand as exceptions to the master’s report.

On September 23, 1931, the final decree was entered, wherein the court finds that the execution of the original contract was not obtained by fraud or misrepresentation, and that the contract is fair and equitable; that Catherine Ashton in January, 1929, 'tendered Mr. and Mrs. Sehiavone $1,691, the entire balance due on said contract, with interest, and demanded a deed; that Mr. and Mrs. Sehiavone illegally and unlawfully repudiated the contract on January 26, 1925, and on the next day filed the original bill of complaint herein.

The court further finds that on November 28, 1927, Sadie C. and Michael F. Sehiavone made, executed and delivered their three promissory notes for $10,000, and interest, and secured payment by the execution of a trust deed on the premises in question; that said notes were sold, and are now owned by the Chicago Title and Trust Company, one of the defendants herein.

It further appears from said decree that after the filing of the report of the Honorable D. J. Normoyle, master in chancery, and beginning on or about the first day of November, 1927, Mr. and Mrs. Sehiavone, believing themselves to be the owners of said premises and in good faith relying upon the report of said master and the decree of the Honorable Harry M. Fisher, one of the judges of the circuit court, and having a right, as a matter of law to rely thereon, did in good faith erect upon said lot a brick building at a cost of $11,685.76, which enhanced the value of the premises to that extent, and for which Mr. and Mrs. Schiavone are entitled to credit with interest at five per cent in the aggregate -amount of $13,853.46; that the Schiavones also paid certain taxes and insurance for which they are entitled to credit with interest in the sum of $528.34.

The decree further finds that Mrs. Schiavone collected rents from Goodman Bros., a tenant in the premises, for which she should account to Mrs. Ash-ton, with interest, in the amount of $7,331.70; that Mrs. Ashton is entitled to credit for the costs taxed in the Supreme Court and interest aggregating $319.22; that Mrs. Ashton, the cross complainant as a matter of law, is not entitled to recover the depreciation in value of the property since the filing of the original bill by the complainants, Mr. and Mrs. Schiavone, and it is therefore unnecessary to determine such depreciation; that the statutory fees of the master in the sum of $349.50, which were paid by the cross complainant, should not be allowed to her as a credit for said sum so advanced.

The court further finds that the net balance due Michael F. and Sadie C. Schiavone is $8,421.88, which has been pledged to the Chicago Title & Trust Company by the notes and trust deed aforesaid; that the court denied any relief under the original bill filed by Mr. and Mrs. Schiavone; directed specific performance of the contract entered into with Mrs. Catherine Ashton, subject to a lien of $8,421.88 to the Chicago Title and Trust Company by virtue of a certain trust deed and notes executed by the original complainants.

The court further directed the furnishing of an abstract or-guaranty policy within 30 days, ordered that said sum of $8,421.88, be paid by the cross complainant with interest at five per cent after date and within 60 days, whereupon the Chicago. Title & Trust Company was directed to release the trust deed, otherwise the trust deed to become a valid lien for this amount at six per cent from date; ordered dismissal of the portion of the supplemental cross-bill seeldng damages for depreciation and directed all defendants to forthwith surrender up said premises to Mrs. Catherine Ashton. It is from this decree that this appeal has been perfected by the cross complainant Catherine Ashton.

The cross complainant contends that the chancellor erred in- refusing to dismiss complainant’s .original bill and the supplemental amendment thereto filed by the original complainants for want of equity.

The mandate of the Supreme Court in the case of Schiavone v. Ashton, 332 Ill. 484, directed the trial court to dismiss the original bill filed by the complainants, Sadie C. and Michael F. Schiavone for want of equity, and also directed the court below to grant the relief prayed for by Catherine Ashton in the cross-bill filed in that case.

It is well understood that the purpose of a supplemental bill is to bring before the court supplemental facts that occurred after the original bill was filed, so that- the court may grant the successful complainants relief on the facts as they appear at the date of the decree. The trial court should have followed the mandate of the Supreme Court, which directed that the bill be dismissed for want of equity. The court, however, finds in the decree in the instant case that complainants illegally and unlawfully repudiated the contract between the parties thereto. If the complainant is not entitled to relief based upon the charges contained in the original bill of complaint, snch bill cannot be aided by a supplemental bill such as was filed in this case. Brownback v. Keister, 220 Ill. 544. Therefore the court erred in not dismissing the bill of complaint and the supplemental bill thereto for want of equity.

The next point to be considered is, Did the chancellor err in finding and decreeing that Mr. and Mrs. Schiavone placed the improvements on the vacant lot in good faith, and in granting compensation therefor 1 From the cross-bill of Mrs. Ashton and the knowledge that Mr. and Mrs. Schiavone had of the terms of the contract which was executed, by them, and the finding by the chancellor that the complainants illegally and unlawfully repudiated the contract executed by them, would indicate lack of good faith. The fact that the master in chancery’s recommendations were approved, and the chancellor in the decree granted the relief prayed for by the complainants in their original bill does not sustain the theory of good faith of the complainants. The decree was not a final one, having been appealed from by the cross complainant to the Supreme Court and reversed, and is now pending before this court on a further appeal from the decree in the instant case. The cross defendants are chargeable and presumed to know of the errors in the record. The language used in the opinion of the court in Ure v. Ure, 223 Ill. 454, is applicable to the instant case. The court said:

“A party to a suit is presumed to know of all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not be abrogated by a subsequent reversal thereof.”

The case of Dart v. Hercules, 57 Ill. 446, is pertinent in the instant case upon the facts as they appear in the record. It appears in that case that the complainant, knowing that another held a contract to purchase real estate, procured a contract to purchase the same real estate, and when he could not enforce his contract, sought to be reimbursed for the improvements he had placed thereon. The court, in denying this claim, said:

“It must be held, therefore, that if appellant made improvements on the premises, he did so in his own wrong, for he had full knowledge of the prior equities of appellee in the lands. . . . We are, therefore, of opinion that the appellant acquired no rights under his alleged contract that he could assert against Hunt, the former purchaser, or any one holding under him.”

The complainants and cross defendants in the instant case made the improvements and constructed the building on the premises in question, with full knowledge of the equities of the cross complainant in and to this lot. It appears in the case of Cable v. Ellis, 120 Ill. 136, that the Supreme Court announced the general rule which applies to this question of improvements. The court in that case said:

“The general rule of law as to improvements unquestionably is that improvements made upon real estate, of a fixed and permanent character, and attached to the realty, by one who has no title or interest in the premises, and without the consent of the owner of the fee, become a part of the realty,” and the court then goes on to say: “There is, however, no principle of law permitting the owner or mortgagor, or his grantee, or a subsequent purchaser with notice of prior equities of first purchaser, to make improvements on the premises and have a prior lien therefor, but such improvements will pass upon sale of the premises.”

The question arises, Was the court justified in refusing to hold the notes and trust deed in the instant case void as to the cross complainant? The decree in the instant case in substance provides that there is a net balance for rents collected due from Mr. and Mrs. Schiavone to the cross complainant, which is credited by the court against the cost of the building improvements, leaving a balance of $8,421 to be paid to the Chicago Title & Trust Company by the cross complainant to satisfy the lien. These notes were delivered to the Chicago Title & Trust Company by the cross defendants secured by a trust deed. The notes so secured and delivered to the Chicago Title & Trust Co. were executed by the Schiavones and they used the money to pay for the building improvements which the Schiavones erected on the lot in question, pending the proceeding and cross complainant’s appeal to the Supreme Court of this State.

Cross complainant is not liable for the construction cost, and it necessarily follows that the cross complainant should not be held to apply the amount found to be due from the Schiavones to her in part payment of the construction cost of the building, and to pay the difference to the Chicago Title & Trust Company in satisfaction of the lien of the trust deed. If the rule were otherwise, it would subject this property to a lien created by the acts of the cross defendants with knowledge of the rights of the cross complainant to the premises, and without any knowledge on the part of the cross complainant.

The notes and trust deed held by the Chicago Title & Trust Company were executed by the cross defendants and delivered during the proceedings in the instant case. Knowledge of such pending proceedings is properly chargeable to the Chicago Title & Trust Company, one of the defendants herein, and being so chargeable, it takes the notes and trust deed subject to the rights of the cross complainant, and the lot in question is not subject to the lien of the trust deed. Par. 57, ch. 22, Cahill’s Ill. Rev. Stats. 1931.

The Supreme Court, in Moore v. Zelic, 338 Ill. 583, in passing upon the validity of the Act of 1917, which provides that the filing of a bill shall be constructive notice of the suit, held the act valid and that the act did not violate vested rights, and in the same case on the question of the doctrine of Us pendens, said:

“Lis pendens means a pending suit. Under the common law, while a suit was pending nothing in relation to the subject matter thereof could be changed, and one acquiring from a party to the proceeding an interest in the property involved in the litigation, where the court has jurisdiction of the subject matter and of the person of the one from whom the interest is acquired, takes such interest subject to the rights of the parties to the litigation as finally determined, and is as conclusively bound by the result of the litigation as if he had been a party thereto from the outset. (Norris v. Ile, 152 Ill. 190; 1 Story’s Eq. Jur. sec. 406.) The doctrine of lis pendens is based on questions of public policy and convenience as necessary to the administration of justice, in order that decisions in pending suits may be binding and of full effect and that an end be had to litigation. (Davidson v. Dingeldine, 295 Ill. 367; Norris v. Ile, supra.)

We have considered the question raised by the cross complainant in this case, that the court erred in not granting compensation for a depreciation in value of the premises during the pendency of these proceedings. The cross complainant frankly admits that there is no decision of a court of appellate jurisdiction where a claim for compensation for depreciation has been passed upon, but contends that equity is not limited to precedents, and that a court may devise and enforce new remedies, if necessary, to prevent a miscarriage of justice. The answer in our opinion is plain and free from doubt that if the cross complainant wished to recover damages for a breach of the contract, the proper remedy would have been by an action at law and not in equity. By the action of the cross complainant filed in the instant case she desired the enforcement of the contract, and called for specific performance in a court of equity, and that carried with it the improvements made by the cross defendants after full knowledge of the equities of the cross complainant in and to the lot in question. The conclusion thus reached by this court disposes of the question as to whether the court erred in not allowing the cross complainant compensation for the use of the property or interest on the value of the land from Jan. 26, 1925 to April 1, 1928.

The chancellor having found that Mrs. Sehiavone collected rent from the Goodman Bros., a tenant in possession of the improvements on the lot, she should account to the cross complainant with interest amounting to the sum of $7,331.70. The court erred, however, in applying this sum as a credit upon the building cost, which building was erected by the cross defendants, with knowledge of the equities of the cross complainant in the property in question.

The chancellor in entering the decree did not allow for payment made by the cross complainant of the statutory fees of the master for the sum of $349.50 in the instant case. We believe under the facts that this was inequitable, and that the cross complainant should be credited with this amount.

The decree is reversed and the cause remanded with directions to modify the decree in conformity with the views herein expressed by the court.

Decree reversed and cause remanded with directions.

Wilson, P, J., and Hall, J., concur.


text:
    Lucius B. Phelps, Appellee, v. Oak Hills Golf Club and Charles A. Phelps, Appellants.
    Gen. No. 35,738.

      Opinion filed February 8, 1933.
    Charles A. Phelps and Charles F. G-rimes, for appellants.
    Egbert J. Folonie and Arthur A. Basse, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The complainant filed a bill in equity against the defendants to establish and foreclose an equitable lien upon the property of the Oak Hills Grolf Club, a corporation. This case was referred to a master, whose report was thereafter confirmed by the court, and a decree was entered granting the relief prayed for in the bill of complaint. From this decree entered by the court, the defendants are in this court upon an appeal.

The facts are, in substance, that in 1920, the complainant loaned $17,500 to one Harry Newman, and received as evidence of the debt Newman’s collateral note signed by him for the sum of $19,250, due in 60 days. The collateral consisted of a certain $10,000 promissory note signed by F. A. and Snow E. Williams, indorsed in blank, and an assignment of Newman’s half interest in the rental of two leases, which rentals, as provided in the leases, were being collected by Hall & Ellis, as agents. When the collateral note signed by Harry Newman became due on February 4, 1921, and was not paid at maturity, the complainant placed the note for collection with the defendant Charles A. Phelps, his brother, as his attorney.

In July, 1921, Newman and his wife conveyed a certain farm property to Charles A. Phelps by warranty deed, subject to certain incumbrances, and at that time also delivered to Charles A. Phelps a bill of sale covering personal property then located on the farm. When Charles A. Phelps was retained as attorney to collect the note for complainant he advised Newman that he, Phelps, proposed to put the same in judgment and levy upon 70 acres of farm land, to which Newman then had title. Thereupon Newman suggested that instead of a levy, which would leave his wife’s interests intact, that he execute a deed joined in by his wife, and convey the title to the farm above mentioned, to Charles A. Phelps. A deed was executed and after conveyance, Phelps entered into possession of the property.

Before the conveyance of the title to the farm to Charles A. Phelps, one of the defendants, he, Phelps, communicated Newman’s offer to the complainant, and the complainant together with Charles A. Phelps, inspected the property.

The liens against the farm property at that time were:

First Mortgage, due February 18, 1924... .$11,000.00

Second mortgage in default............... 11,500.00

Third mortgage, due May 7, 1922.......... 2,200.00

Rohe Lumber Company mechanic’s lien claim filed May 17, 1921................ 1,635.60

Harris and Rogers judgment and costs, rendered June 7, 1921. Execution thereon delivered to the sheriff on July 15, 1921.. 7,800.00

$34,135.60

There is evidence that the complainant objected to the title to this farm property being in Charles A. Phelps. However, Newman conveyed the property to Charles A. Phelps, who did not pay anything as a consideration for the conveyance and had no legal or equitable interest, but held the conveyance to secure the payment of Newman’s note held by the complainant. Charles A. Phelps admitted in writing that he held title as trustee for the complainant. It also appears from the evidence that at the time of the conveyance of title by Newman he, Newman, was to receive the balance, if any, of the proceeds in the event of a sale of the property, after deducting the necessary amounts to pay prior liens which Newman had to discharge, as well as the claim of the complainant by virtue of Newman’s note. The complainant thereafter advanced certain moneys to Charles A. Phelps to defray certain running expenses, and after some time determined to and did change lawyers, the complainant being represented by John L. Davidson. Charles A. Phelps failed to sell the Newman farm until he finally promoted, together with Lee B. Vastine and David B. McIntosh, the Oak Hills Grolf Club, which was incorporated in Illinois on October 19,1922. After the organization of this golf club, a deal was consummated whereby the Newman farm and an adjoining tract of land, which consisted altogether of approximately 139 acres, was conveyed to the Oak Hills Golf Club by Charles A. Phelps. The consideration for the conveyance of the Newman farm was $75,000.

In this connection it is interesting to note that the defendant representing thé complainant as attorney, investigated the desirability of making the loan to Newman by the complainant, and met Lee Vastine, who was interested in the promotion of the loan. After the conveyance of the title to the land, the Oak Hills Golf Club took possession of the property, and the consideration for the conveyance by Charles A. Phelps was paid for in cash, except $15,000; that Lee Vastine, Charles A. Phelps, and David McIntosh, who were the organizers of the Golf Club, were elected as officers, Lee Vastine, president, Charles A. Phelps, treasurer, and David McIntosh a director; that stock issued by the club was received by the officers named for services rendered in organizing the club; that prior to the date of the deed, May 4, 1923, to the Oak Hills Golf Club, by Charles A. Phelps, Lee Vastine, one of the incorporators, president and a director, and David McIntosh, also a director, had knowledge that the deed to Charles A. Phelps from Newman was to secure the payment of a $19,250 note held by the complainant, and that the club had further notice in the form of a letter dated January 12, 1924, addressed to John E. Reardon, president, of the complainant’s claim that the deed to Charles A. Phelps from Newman was to secure the complainant’s claim against Newman for the amount due on Newman’s note, and that Charles A. Phelps held title as trustee, for complainant, to secure such payment; and that the only personal interest Charles A. Phelps had was the amount due for his services rendered in the matter.

It also appears from the evidence that on November 1, 1923, the Oak Hills Golf Club negotiated a loan of $75,000 evidenced by bonds bearing interest, the payment of which was secured by a trust deed, by the terms of which the club conveyed the property in question to the Chicago Title & Trust Company, which was executed and delivered by Lee Yastine, its president, and Charles A. Phelps, its secretary. The record is not altogether clear as to the date of the payments by the Oak Hills Golf Club of the consideration for said warranty deed from Charles A. Phelps, except as to the check of $13,339.95, dated November 19, 1924. It appears that there was due the complainant on December 5, 1928, at the time of the entry of the decree, on account of the said Newman loan, a total of $13,927.10.

Defendant contends that Harry Newman conveyed the farm and personal property to Charles A. Phelps as trustee, with power to sell and with directions to apply the funds to satisfy the liens upon the property, as well as the amount due the complainant upon the Newman note, and that the complainant acquired no lien upon the property, but only a contingent interest in.the proceeds of the sale of the Newman farm.

The theory of equitable liens has its foundation in contracts, express or implied, and every agreement between the contracting parties which sufficiently indicates an intention to make some particular property, real or personal, a security for a debt; or the property is transferred as a security, creates an equitable lien, which is enforceable against the property conveyed. This rule, however, is not limited to express contracts, but in addition equity raises similar liens without agreement therefor between the parties, based either itpon general considerations of justice or upon the particular equitable principle that he who seeks the aid of equity in enforcing some claim must himself do equity. Oppenheimer v. Szulerecki, 297 Ill. 81.

At the time of the conveyance by Newman to the defendant Charles A. Phelps, he, Phelps, had no interest other than to collect the moneys due his client upon the Newman note, and to protect the interests of the complainant. It was clearly the intention of the parties to this transaction that the land held by Charles A. Phelps was to secure the payment of complainant’s note, together with the liens then upon the property, and the defendant Charles A. Phelps was bound by this understanding, and it would seem to the court that it is highly improper for this defendant at this time to take advantage of his position and maintain that the complainant acquired no lien on the land, but only a contingent interest in the proceeds of the sale of the land.

The contention by the defendants that the complainant acquired no lien upon the land, but only a contingent interest in the proceeds of the sale of the land is not borne out by the facts in this case. Newman, the owner, conveyed the land to Charles A. Phelps to secure the payment of the amount due the complainant. In Hibernian Banking Ass’n v. Davis, 295 Ill. 537, the court held that where property is not conveyed, but is held by the owner upon an agreement that he will apply the moneys received upon a sale in payment of the complainant’s debt, the complainant is not entitled to an equitable lien upon the property in question. The Supreme Court said however:

“While it is true that it does not require express words to create an equitable mortgage where the intention to create such a lien is evident, yet it must clearly appear from the instrument or the surrounding circumstances at the time of entering into the same, that the maker of the instrument intended that the property therein described is to be held, given or transferred as security for the obligation. (3 Pomeroy’s Eq. Jur.—3d. Ed.—sec. 1235.) ”

The question, of course, is largely solved by the intention of the parties, to be gathered from the understanding at the time of the conveyance by deed to Charles A. Phelps, and it is our opinion, from the evidence and the transaction which took place at the time of the conveyance by Newman to Charles A. Phelps, that the land was to be held as a security and to be sold for the payment of the liens upon the property, together with the amount due the complainant upon the Newman note.

There is one question in this case that is important: Did the Oak Hills Golf Club have knowledge of the conditions upon which Charles A. Phelps held title to the Newman farm?

The evidence is convincing that Charles A. Phelps had no interest in the land. The only interest that he had was that he was to be paid for his services as attorney for the complainant and reimbursed for the money he expended in the management of this property. When he promoted and organized the Golf Club he clearly understood that the title to the Newman farm was to be held by him to secure the payment of the complainant’s claim. With this knowledge he conveyed the land to the Golf Club and took possession as an officer. Vastine, the president, and McIntosh, a director, had the same knowledge at that time.

Again, on June 12, 1924, before all of the purchase money due from the Club was used, John E. Reardon1, the president, received a letter from the complainant, through his attorney, notifying the club of the claim of the complainant, and from Reardon’s testimony it appears that he did discuss the complainant’s claim with Charles A. Phelps, a defendant, and was given to understand that it was “none of his (Reardon’s) business.” Phelps was the treasurer and general manager of the club, taking care of the buildings, the collection and disbursement of the club’s money, and also representing the club in all matters requiring the services of an attorney.

It is further contended that the complainant is estopped to assert any claim upon the title because, by the acts of the complainant, Charles A. Phelps was warranted in conveying title to the G-olf Club. We have considered the steps taken by the complainant as they appear in evidence, and it would seem that he was concerned about the satisfaction of his claim. Charles A. Phelps, defendant, had title to the Newman land, and his acts throughout indicate an effort on his part to consider his interest and not that of the complainant.

The complainant did not mislead the defendants in any respect, nor did any act of this complainant cause the club to change its position, to its detriment. Bather, it appears from the evidence that the defendant Phelps induced the complainant to dismiss a pending bill to establish his lien against the land in the possession of the defendants. The dismissal of this bill was induced by the defendant Golf Club through its agent Phelps’ promise to pay the claim of the complainant. However, after the bill was dismissed the claim was not satisfied and the proceeds of a check which was in the possession of the agent of the Golf Club for the sum of $13,339.95 was retained by the defendant club, and it appears from the evidence that its agent Charles A. Phelps was instructed at the time of the issuance of the check that he could dispose of this amount at his will. This upon its face would indicate a sharp practice indulged in by the defendant club through its agent.

The complainant acted in good faith and is entitled to the relief prayed for in the bill of complaint.

The last contention of the defendant to be considered by this court is, Did the chancellor err in refusing to allow the Oak Hills Golf Club to amend its answer so as to plead usury? The record discloses that this suit has been pending since February, 1925; that answers of the defendants were filed in April, 1925, hearings were had before the master, and the master’s report was prepared in 1930. We believe that the court was justified in refusing to permit the Oak Hills Golf Club to so amend its answer because of the lapse of time, but there is a further ground which justified the court in refusing to permit the amendment to be filed by the Oak Hills Golf Club, and that is, that the defense of usury is a right personal to the debtor and must be pleaded by him.

If Newman was injured by usury, it was for him to say whether such was so. Newman could choose to perform the contract and waive the defense of usury. No one else had the right to raise that defense. Hibernian Banking Ass’n v. Davis, supra.

After a consideration of the evidence, we find that the chancellor was fully justified in entering the decree in this case finding that the complainant was entitled to an equitable lien upon the premises in question, subject to the lien of the trust deed securing the payment of the bonds aggregating the sum of $74,000, and that the decree is sustained by the proof and the law.

The decree is accordingly affirmed.

Decree affirmed.

Wilson, P. J., and Hall, J., concur.


text:
    Arthur E. Wold for Use of LeRoy D. Wegener, Administrator of the Estate of Warren G. Wegener, Deceased, Appellee, v. Glens Falls Indemnity Company, Appellant.
    Gen. No. 35,757.

      Opinion filed February 8, 1933.
    Eider & Thitma, for appellant; Egbert Bran and, Jr., of counsel.

      Jaffe & Green and Frank G. Levy, for appellee; Elmer M. Leesman and Jacob H. Jaffe, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment in,the sum of $10,583.33 in favor of the plaintiff and against the defendant garnishee. Judgment was entered in a garnishment proceeding instituted by LeBoy D. Wegener, as administrator of the estate of Warren G. Wegener, deceased, in the name of Arthur E. Wold for the use of said plaintiff, against Glens Falls Indemnity Company, a corporation, as defendant garnishee. The trial was before the court, without a jury, and the question is whether the garnishee was indebted to the nominal plaintiff, Arthur E. Wold.

The pleadings consist of an affidavit and interrogatories. The garnishee filed an answer and an amendment thereto. In the amended answer the garnishee denied that it was indebted to Arthur E. Wold, but admitted that it issued a policy of insurance to Wold, wherein it agreed to indemnify him against liability for damages arising out of the use of a motor truck therein described and upon the terms and provisions contained in the policy; and alleged that at the time of the accident the motor truck was being used by Wold for purposes in violation of the conditions of the policy.

From the evidence it appears that on May 7, 1929, the defendant issued a certain policy of insurance to Arthur E. Wold, wherein, among other things, it agreed, in consideration of the premium specified and the schedule of declarations and compliance with the provisions therein set forth to indemnify Wold against liability.

“ (1) to pay all sums which the insured shall become liable to pay as damages imposed by law on account of

“(a) Bodily injuries, including death, at any time resulting therefrom, to any person or persons . . . accidentally suffered by reason of the ownership, etc. of ‘ any automobile described in the Declaration. ’ . . . resulting from negligence in the operation of such motor vehicles described herein in the business of such owner, or otherwise.”

The policy further provided:

“This policy does not cover while any automobile insured hereunder is being (4) used for any purpose other than specified in Declaration No. 9. . . .” The declarations which are pertinent are as follows: “4. Assured’s occupation or business is contract hauling for Protection Products Co. only . . .

“9. The above described automobiles will not be rented or used to carry passengers for a consideration or used to tow or propel a trailer or vehicle used as a trailer, and the purposes for which they will be used are: . . .

“(b) Commercial vehicles — only as described in Declaration No. 4, including loading and unloading and incidental pleasure use for the named Assured’s family except as follows: No exceptions.”

A further condition of the policy is:

“0. Declaration. Declarations 1 to 11, inclusive, are made a part of this policy and are warranted by the Assured to be true.”

On May 31, 1929, Arthur E. Wold, the assured, was operating the truck in question and ran into Warren Wegener, who died as a result of his injuries. After the accident, Wold notified O. A. Mavon & Company, the representatives of the defendant in the instant case, and was advised to get in touch with Arthur L. Ladd. Ladd, upon receipt of the notice of the accident, directed that an investigation be made. At the time of the accident Wold was driving the truck and had for delivery on this truck two packages which were received from the Protection Products Company, consigned to 4136 Grand avenue. After the receipt of these packages he proceeded to Kedzie and Lawrence avenues, upon receipt of word from his office regarding his other truck, and found when he reached the place above mentioned that the truck could not carry all that was to be loaded. Thereupon Wold loaded a counter and backshelves and a few other pieces on the truck that was being operated by him, to be delivered to Carpenter and Milwaukee avenues. After the loading of the fixtures, Wold then proceeded south on Kedzie to Grand avenue, for the purpose of making delivery of the two packages for the Protection Products Company. The accident happened at Berteau and Kedzie avenues.

In June, 1929, Wold received a letter from A. L. Ladd, representative of the garnishee defendant, in which the defendant denied that the policy covered the accident in question, because the assured did general hauling with the truck at the time of the accident.

The contention is made by the garnishee that the policy issued to Arthur E. Wold covered the motor truck while it was being used and operated in the business of contract hauling for the Protection Products Company only; that at the time of the accident in question the truck was being used by Wold for purposes which were in violation of the conditions of the policy; that the right of the plaintiff to recover was uncertain and contingent upon full compliance by Wold with the terms of the policy; and that it was not the intention of the legislators to substitute garnishee proceedings for common law right of action, and the garnishee defendant relies upon the case of Shraiberg Mfg. Co. v. Boston Ins. Co., 246 Ill. App. 196, as decisive of the question now under discussion. The opinion of this court will be further discussed.

The garnishee had notice of the accident and of the suit against the assured, and upon an investigation made by the garnishee, the company denied liability. In the original action the garnishee did not participate in the trial of the case of LeRoy D. Wegener, administrator of the estate of Warren G. Wegener, deceased v. Arthur E. Wold, for the injuries which caused the death of the deceased by reason of the negligent operation of the truck by Wold. The reason for its refusal to perform and participate in the trial was that the assured, Wold, was guilty of violation of the provisions of the policy and the amount to be recovered by the plaintiff against Wold was uncertain until the amount had been reduced to a certainty by a verdict of a jury and judgment entered by the court. •

In the form of the action before this court on appeal, the beneficial plaintiff’s demand arises from a judgment against Wold, and in a garnishment proceeding such as this one, the trial court is obliged to determine what, if anything, is due from the garnishee to Wold, under the terms of this contract. This action will lie even though liability is denied. Glens Falls Ins. Co. v. Hite, 83 Ill. App. 549; Phelps v. Columbia Phonograph Broadcasting System, Inc., 255 Ill. App. 294.

The contract of indemnity is against loss by casualty, and is absolute upon the happening of the loss, provided there is no breach of the conditions of the policy by the assured. Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297.

The amount of the loss became fixed by the action of the beneficial plaintiff against Wold wherein judgment was entered which determined the liability of Wold. The amount, of the judgment is certain; the contract of insurance is not disputed, and the only question is, Did the trial court err in finding that the garnishee defendant was indebted to Wold upon its contract? The garnishee repudiated its obligation by its failure to appear and take part in the defense of Wold in the original proceedings, and it is not now in a position to question the result of that action. The beneficial plaintiff had the right to have the question of the indebtedness determined, and the amount due from the garnishee applied to the payment of the judgment, not because of any privity between the plaintiff and the garnishee defendant, Tout because of the right of the judgment creditor to have money due from the garnishee under the terms of the insurance contract existing between the parties applied to the payment of the judgment. Kinnan v. Hurst Co., 317 Ill. 251. Under the facts and circumstances in the instant case the amount that may be due from the insurance company to the assured is subject to garnishment proceedings, although the liability is disputed.

The defendant in its brief makes the statement that the fact that the amount was fixed by the jury in the personal injury action against Wold had little or no bearing upon the question involved in this case, but that the liability of the defendant as garnishee to Wold, the assured, was measured by the terms of Wold’s policy, and before there could be any recovery it was incumbent upon Wold to show himself within those terms. He was bound by the contract he made.

The policy of insurance issued by the defendant to Arthur E. Wold was in force at the time of the accident. The fact is that the assured, Wold, was hauling for the Protection Products Company at the time of the accident together with other goods hereinbefore mentioned. He started from the.company’s place of business after receiving several packages to be delivered for this company, and at the time of the.accident was en route to make delivery for that company.

Certain provisions of the policy have a bearing upon the question of liability of the defendant insurance company, and one of the questions is, What was Wold doing at the time he was operating the motor truck? Was he engaged in his own business or otherwise, or was he only engaged in the business, as described in the declaration, of contract hauling for Protection Products Co. only?

These provisions are somewhat contradictory. In the one instance the assured is protected if he operates the truck in his own business or otherwise, and then again he is limited in the use of the motor truck to business purposes of the Protection Products Co.

This court in the case of Shraiberg Mfg. Co. v. Boston Ins. Co., supra, made use of this language:

“In the case at bar the answer sets out matters of defense under the policies, namely, that the right to recover had been forfeited because of the false representations, and these, if true, would amount to a good defense in an action by a judgment debtor and the garnishee. Moreover, the amount of the loss was unliquidated and the garnishee had the right to have this question as well as any other questions of liability under the policy settled in a proper action between the garnishee and the judgment debtor.”

This court still adheres to what was said in that case, and the rule thus stated applies in the instant case, that is, if Wold breached the contract provisions, it would be a good defense to an action by the judgment debtor and the garnishee, and that would apply to the action of the judgment creditor against this defendant. The amount of the loss in the Shraiberg Mfg. Co. case was not ascertained. The significant fact in the instant case is that the liability of Wold was ascertained and the amount of damages established, so that the judgment creditor by this action is in a position to ascertain if anything was due under the terms of the insurance policy from the garnishee to Wold. The rule in this State is that a judgment creditor by garnishment proceedings may recover only such indebtedness as his debtor might recover in an action of debt or in an action in assumpsit against the defendant, G-lens Falls Indemnity Company, and the rule is no different where the indebtedness is denied by the garnishee, as in the instant case. The burden to establish such liability is upon the plaintiff.

In the instant case the beneficial plaintiff recovered a judgment against Arthur E. Wold, and the question arises, Is the garnishee indebted to the judgment debtor upon a policy of insurance ? In the action before us the garnishee denied that it was indebted to the judgment debtor. The burden therefore is upon the plaintiff to establish that the garnishee insurance company is indebted to the judgment debtor, which indebtedness if established is to be applied in payment of the judgment.

From an examination of the policy we find that the insurance company insured Wold against liability for damages to persons arising out of the operation of the motor truck described in the policy, while being used “in the business of such owner or otherwise.” There is also included in the declaration, which is made a part of the policy, the provision that the assured’s occupation “is contract hauling for the Protection Products Company only. ’ ’ The use of the general term first mentioned by the court would indicate that the assured is to be protected by the insurance company from liability resulting from the operation of the truck, and consequent injury to a person, while being used in the assured’s business. Did the statement by the insurer in the declaration so modify the terms of liability as to restrict this liability to accidents to persons occurring while the truck was being operated in the hauling of goods for the Protection Products Company? In construing the provisions they are to be construed most favorable to the assured, and the court is to adopt such construction as will give effect to the contract, rather than a construction which will defeat the purposes of the policy. It was clearly the purpose of the insurance contract to protect the insured from personal liability for injuries suffered by others because of automobile accidents resulting from the operation of the truck. Treolo v. Iroquois Auto Ins. Underwriters, 348 Ill. 93.

This contract of insurance is susceptible to two meanings, one of which is the more reasonable meaning and is to the effect that there is a duty of the insurer to protect the assured, according to its insurance agreement, against personal liability for injuries caused to others while engaged in the trucking business, rather than to adopt the limited construction that the liability of the insurer is only for such accidents as may occur while the assured is engaged in hauling for the Protection Products Co. under contract.

It may be said in passing that Wold was not engaged in the business of general hauling in the use of the truck. The record contains no evidence that tends to show that Wold was using the automobile in general transportation business, and to say that a single isolated instance of carrying other goods than those of the Protection Products Co. would defeat the rights of Wold under his policy, would be a strained and unreasonable construction of the exclusion clause. Treolo v. Iroquois Auto Ins. Underwriters, 348 Ill. 93.

We have considered the questions which were called to our attention in this case, and are of the opinion that there is no such error as would justify a reversal. The judgment entered by the trial court is accordingly affirmed.

Judgment affirmed.

Wilson, P. J., and Hall, J., concur.


author: Mr. Justice Matohett

text:
    Ellis Electrical Laboratory Sales Corporation., Appellant, v. Hugh J. Ellis and Ellis Electrical Laboratory, Inc., Appellees.
    Gen. No. 36,370.

      Opinion filed February 9, 1933.
    Rehearing denied February 25, 1933.
    Altheimer, Mayer, Woods & Smith, for appellant.
    James F. Burns, for appellees.
   Mr. Justice Matohett

delivered the opinion of the court.

Complainant appeals from a decree which dissolved a preliminary injunction theretofore issued and dismissed its bill for want of equity. The bill prayed that an injunction issue restraining defendants from the violation of the provisions of a contract by which defendant, Hugh J. Ellis, granted complainant an exclusive sales agency for a microphone and other electrical products manufactured by him. The bill averred the execution of the contract and performance thereof on the part of complainant and the violation of the contract by defendants by an announcement to the trade that after January 1, 1932, they would sell such products direct to customers.

Defendants admitted the execution of the contract but denied other material averments of the bill, and in answer to a supplemental bill, wherein complainant asserted that defendants had surreptitiously obtained a list of complainant’s customers, defendants replied that the lists were obtained in a proper way, and further, for the first time set up the defense that the contract itself was void and unenforceable for want of mutuality; that a decree for an injunction would amount to specific performance and that the contract, not being mutual, could not be so performed.

The cause was put at issue and referred to a master who reported that the contract was void and unenforceable. Objections of complainant were overruled, and these by order stood as exceptions upon the hearing before the chancellor, who also overruled the same and entered the decree in conformity with the recommendation of the master.

The facts concerning the circumstances under which this controversy arose between the parties would seem to be as follows: Defendant Hugh J. Ellis is 67 years of age and has been in the electrical business since 1880. In 1924 he began to do business under the name of “Ellis Electrical Laboratory.” His factory was at his home in Berwyn, Cook county, Illinois, where he manufactured radio accessories. He made some sales of Ms products to the firm of Shure Brothers Company, which was composed of S. N. Shure and S. J. Shure, whose business was located in Chicago.

Ellis was experimenting with the manufacture of a microphone called the “Ellis Microphone,” of which he was the inventor and for which he obtained patents. Ellis exMbited one of these microphones to Shure Brothers. The microphone was also in use at a radio station in Cicero, Illinois, and one of the Shures examined it there. Up to June, 1929, Ellis had sold oMy nine of these microphones. As a result of their examination the Shures became interested. They gave an order for 12 of these microphones to Ellis, who delivered the same for the total price of $216, or $18 each. This order was delivered about July 6, 1929. The Shures further indicated their interest at that time by malting an advancement to Ellis of $84 in cash, which Ellis apparently needed for the development of his invention.

Although the master did not so find, the evidence would have warranted the finding that before the execution of the written contract on which the sMt is based, a verbal agreement existed between the Shures and Hugh J. Ellis that Ellis would not sell the microphones to any other person. The evidence also would warrant a finding that even at the time of the execution of the contract the microphone had not been completely developed and that Shure Brothers gave some assistance toward the perfection of it.

The contract in question was executed October 24, 1929. It is in writing and under seal. It states that it is made between Hugh J. Ellis, trading as the Ellis Electrical Laboratory, Berwyn, Illinois, as party of the first part, and S. N. Shure and S. J. Shure of Chicago, as parties of the second part. It is in seven paragraphs. In the first paragraph the Shures agree to do business under the name of “Ellis Electrical Laboratory General Sales Office” at any place they may desire for the purpose of handling microphones, radio coils and other articles which Ellis may manufacture.

In the second paragraph the contract provides that the Shures as the second parties shall be the sole sales officials or distributing officers for the products manufactured by'Ellis, “and said first party agrees that they will not sell, directly or indirectly, any of such products to any other person, firm or corporation during the term of this contract.”

By the third paragraph Ellis agrees to sell and deliver microphones of the then style and as then manufactured at the price of $18 each, deliveries to be made with diligent promptness after orders are placed.

It is agreed by the fourth paragraph that in case of any change in the market conditions or in case of competition affecting the profits to be earned by the Shures, the prices are to be reduced accordingly, “agreeable to both parties.”

By the fifth paragraph the Shures agreed to purchase and Ellis to deliver at their request a miuimnm of 100 microphones a year. The Shures further agreed that they would exert “all efforts for effective distribution,” and further that if they did not purchase at least 100 microphones during the course of the year, Ellis should have the option to cancel the contract without further obligation on the part of either party.

The sixth paragraph provided that the Shures would agree to purchase radio coils and other items at prices to be agreed upon and that they would act as sole sales officers and distributors for items.

The seventh paragraph provided that the agreement should be for a period of five years from the date of it.

After the execution of the contract of October 24, 1929, the Shures gave various orders for the products of Ellis (which were filled) and paid for the same. They effected a sales organization, secured the cooperation of dealers in various parts of the United States, advertised the Ellis microphone in circulars, catalogs, and trade journals and in other ways. The master found that this advertising cost the sum of approximately $6,600. Up to the time of the filing of the bill of complainant Ellis had received from the Shares under the contract approximately $32,000 for microphones purchased thereunder.

Subsequent to its execution the contract in question was with the written consent of Hugh J. Ellis assigned by the Shures to the complainant corporation, Ellis Electrical Laboratory Sales Corporation. Some time thereafter in July, 1931, defendant Ellis, without the knowledge or consent of complainant or its predecessors in interest, caused the defendant Ellis Electrical Laboratory, Inc. to be incorporated under the laws of Illinois, and turned over his business of manufacturing at Berwyn to said corporation.

In November or December, 1931, defendant Ellis Electrical Laboratory, Inc., caused a large number of postal cards to be sent to prospective purchasers of microphones notifying them that beginning January 1, 1932, the Ellis microphone and other electrical equipment covered by the contract could be purchased direct from the Berwyn factory of said corporation, and shortly thereafter the defendant company made a sale or sales of microphones to the International Sound Recording Company.

Defendant Ellis is a stockholder, officer and director of the defendant corporation, and with other members of his family is actively engaged in carrying on in the name of this corporation the business in which he was engaged at the time the contract in question was executed.

Complainant sales corporation was incorporated by agreement of the parties to the contract on June 17, 1930. The defendant corporation, without any such agreement, was incorporated on July 2,1931. Defendants contend that the Shure Brothers Company, which was originally a partnership and later incorporated, was the predecessor in interest of complainant, and that it sold microphones in competition with those made by defendant. The record does not justify this statement. A stipulation of the parties is to the effect that Shure Brothers Company sent out these microphones, and there is a statement in the record by defendants’ solicitor to the effect that this was a separate concern from the complainant corporation. Moreover, the microphone offered for sale by the Shure Brothers Company was a condenser microphone, while that made by defendants was a carbon. .The condenser microphone was offered for sale at the sum of $250. The carbon microphone made by defendants was put on the market at from $15 to $85 each. As complainant points out, there is no proof in the record that in the sale of these two kinds of microphones there was in fact competition.

There is evidence in the record to the effect that the Shures unsuccessfully tried to get defendant Ellis to enter into other agreements whereby the written contract upon which this suit is based would be abrogated and a corporation organized to obtain the ownership of the invention which the Shures wished to control through owning 51 per cent of the stock of the corporation to be formed. The evidence was admitted but is not, we think, material upon any issue.

It also appears that on December 10,1931, complainant sent out a circular letter to the effect that it would thereafter conduct its business as the Ellis Electrical Laboratory Sales Corporation, Division of Shure Brothers Company, and that since its organization this company has been a subsidiary of that corporation. It is urged that complainant used forms of advertising in which an attempt was made to minimize the words “Sales Corporation” as the same by agreement appeared in the name under which complainant was to sell the products of defendants. In some forms of advertising the initials “S. C.” were substituted for the full words. In others the words, “Sales Corporation” appeared in small type, and the name of S. N. Shure, president, was prominently displayed. Defendants complain that in all this advertising matter the Chicago address of complainant was given rather than the Berwyn office of defendants. Defendants argue that all these things indicate an intention on the part of complainant to appropriate the business of defendant Ellis without his consent. It appears, however, from the evidence that the address ‘ Chicago ’ ’ instead of “Berwyn” was cast into the microphone by defendants, and that Ellis and his daughter who assisted him knew of these forms of advertising from the very first and in fact assisted in sending out the advertising. Defendants are not, under these circumstances, in a position to complain.

In urging their point against the enforcement of this contract defendants say that the things we have above enumerated could have been done for no other purpose than to represent to the public and customers that complainant was the Ellis Electrical Laboratory and not the Ellis Electrical Laboratory Sales Corporation; that upon the expiration of the contract defendant company would find itself unknown to the trade and complainant practically in possession of the customers of defendant company. These things, they say, amounted in fact to misrepresentations affecting not only their private rights but the public as well. They cite American University v. Wood, 294 Ill. 186.

We are not impressed by these contentions. Defendants as owners of the patents and manufacturers of the product, at the expiration of the term of the contract, would be in a position to appropriate the trade and good-will built up through complainant’s money and organization. If the contract was unconscionable, it seems to us it was so with respect to complainant rather than defendants. There is not a provision in the entire contract which in any way protects at the expiration of the same the trade and custom which the money and labor of complainant may have acquired. It is not difficult to understand why complainant desired another agreement which would protect it in these respects. We cannot hold that as to defendant Ellis the contract is unfair or inequitable. The master did not find (as defendants now contend) that complainant was in court with unclean hands in this matter. Defendants filed neither objection nor exception to the report, and if filed, such exceptions could not have been sustained.

The controlling question therefore in the case is whether the contract is void or unenforceable because of lack of mutuality either in the obligations of the contract or in the remedy. As to the mutuality, so far as obligation is concerned, we do not entertain a doubt. A consideration of the whole contract (which is, we think, the method by which it must be interpreted) shows that promise was given for promise, and that it was at its inception a valid bilateral agreement. The inventor agreed not to sell directly or indirectly to any other. The sales agents agreed to conduct a sales office under the name as provided in the contract. The inventor agreed to sell and deliver to the sales agents microphones of a certain style for a specified price, and agreed to deliver with promptness after orders were placed. The sales agents agreed to purchase a minimum number of these microphones each year at a stated price, and the inventor agreed to deliver at that price. There was a further provision that if during any one year the sales agents failed to keep this promise, the contract at the option of the inventor and manufacturer might be canceled. The term for which the agreement should last was also certain and fixed. There were other provisions which, considered alone, were not mutually binding and enforceable, but these agreements seem to have been made certain, specific and mutual by oral agreements of the parties thereafter made with respect thereto.

The question of the mutuality of remedy raises a more difficult question, but the tendency of the later authorities is to the effect that the fact that the remedy of specific performance is not available to one party is not a sufficient reason for refusing it to the other party, and that the fact that the remedy of specific performance is available to one party to a contract is not in itself a sufficient reason for making the remedy available to the other. It may be of weight, however, when accompanied by other reasons, and it may be decisive when the adequacy of damages is difficult to determine and there is no other reason for refusing specific enforcement. Restatement of the Law of Contracts, sec. 372. Defendants contend that the rule is otherwise in Illinois, and we think it must be conceded that the decisions are not easy to harmonize. ’ Defendants say that a bill for an injunction restraining a breach of negative covenants is in effect a bill for specific performance and governed by the same rules; that if a contract lacks mutuality either as to obligation or as to the remedy available, neither specific performance nor an injunction to restrain the breach of the negative covenant in it may be sustained. Welty v. Jacobs, 171 Ill. 624; Ulrey v. Keith, 237 Ill. 284; Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, 269 Ill. 539, and other cases are relied on.

The leading case as to the circumstances under which equity will enjoin the breach of a negative covenant for personal services is Lumley v. Wagner, 1 De G. M. & G. 604, where, no other remedy being available, the injunction was allowed.

In Welty v. Jacobs, supra, Jacobs sought an injunction against Welty and the third party, Newell, who in violation of the covenants of Jacobs, was about to give a performance known as the “Black Crook” at the Alhambra Theater in Chicago. The injunction was granted and Jacobs held guilty of contempt for violation of it. The Supreme Court upon appeal held “without determining whether there may not be exceptional cases not falling within the general rule,” that the bill was in substance for specific performance, and that the jurisdiction of equity was substantially coincident with its jurisdiction to compel such specific performance. The facts averred showed that it was impossible to compel such performance, and the judgment of the Appellate Court reversing the judgment of the trial court was affirmed.

In Ulrey v. Keith, supra, an injunction order based on a lease of oil land was reversed, it appearing that complainant lessee had under the lease the right to surrender the same at Ms option at any time.

The case most relied on is Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, supra. In that case the Modzelewskis, owners of real estate, entered into a real estate contract with the brewing company whereby in consideration that the company would furnish fixtures for the operation of a saloon, they agreed that for a certain time named they would purchase from the brewery and from no one else whomsoever, all the draught beer used by them. Differences arose and the Modzelewskis began to purchase other beer, whereupon the brewing company filed a bill praying that they might be enjoined from making such purchases. A temporary injunction issued on the recommendation of a master. Defendants answered and made a motion to dissolve which was denied, and they appealed to the Appellate Court where the decree was reversed for the reason, as stated, that complainant had an adequate and complete remedy at law. The cause was remanded with directions to dissolve the injunction. 183 Ill. App. 352. The cause was reinstated and an order of dissolution entered. Thereupon, defendants petitioned for damages, which upon hearing were allowed, and upon appeal to the Appellate Court the judgment was affirmed. The cause was then removed to the Supreme Court by a certificate of importance. It was urged there that the breach of the contract should have been enjoined independently of whether complainant had an adequate remedy at law. The court said that the obligation of complainant to manufacture beer was one which could not be enforced without the court supervising the business of a brewing company, and that this the court could not do; that the contract therefore lacked mutuality, and that defendants in case of breach would have been left to seek their remedy at law; that the injunction therefore would not lie “unless it appears that appellant will suffer an irreparable injury for which the law affords it no adequate remedy at law.” The court further held that complainant had such remedy in the contract which provided for liquidated damages in case of breach.

That in default of an adequate remedy at law an injunction will be issued in such cases, there is a wealth of authority in this and in other jurisdictions. Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616; Singer Sewing Mach. Co. v. Union Button Hole & Embroidery Co., 1 Holmes 253. In National Marking Mach. Co. v. Triumph Mfg. Co., 13 F. (2d) 6, Judge Sanborn states as settled beyond debate or the necessity of citation of authority: “A court of equity may issue its injunction to prevent a violation, or the continuance of a violation, of a contract in cases in which it would not decree specific performance thereof.” Many other cases to the same effect might be cited.

To sum up it is clear that defendants are about to deprive complainant of its rights under a valuable contract which is fair and just on which it has expended large sums of money, and that there is no adequate remedy at law in case of such breach. The court therefore erred in dissolving the injunction and dismissing the bill for want of equity. The decree is reversed and the cause remanded with directions to enter a decree making the temporary injunction issued permanent as prayed.

Reversed and remanded with directions.

McSurely, P. J., and O’Connor, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    John August Johnson, Appellee, v. Sanitary District of Rockford, Appellant.
    Gen. No. 8,511.

      Opinion filed February 23, 1933.
    Garrett & Fell, for appellant.
    North, Linscott, Gibboney & North, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

John August Johnson, appellee, brought an action of assumpsit against the appellant, the Sanitary District of Rockford, Illinois, a municipal corporation, in the circuit court of Winnebago county. The declaration consisted of a special count, and also the common counts, alleging the amount due from the defendant to be the sum of $504.16. It was claimed that this amount was due the plaintiff for interest on an award that had been granted the plaintiff in an eminent domain proceeding in which the Sanitary District of Rockford had taken property belonging to the plaintiff. The pleadings were settled by agreement of both parties, a jury was waived and the case submitted to the court for a hearing.

The facts in the case are not in dispute, and the case was submitted to the trial court on the following-stipulation: “It is hereby stipulated and agreed by and between John August Johnson, the above named plaintiff, By C. H. Linscott, his attorney, and the Sanitary District of Rockford, the above named defendant, by Bruce H. Garrett, its attorney, as follows:

“That said defendant heretofore filed its petition in the County Court of Winnebago County, Illinois, to condemn certain lands belonging to the above named plaintiff to be used for certain purposes in connection with the business '<•>£ the said defendant and that on the 9th day of January, A. D., 1930, a judgment was entered in the County Court of said Winnebago County in said condemnation suit for said plaintiff and against said defendant for the sum of sixteen thousand five hundred dollars ($16,500.00).

‘ ‘ That thereupon and therefrom an appeal was taken by the said plaintiff in the said cause to the Supreme Court of the State of Illinois and at the February Term of said Supreme Court, A. D., 1931, the judgment of the County Court of said Winnebago County was affirmed, and pending said appeal by said plaintiff of said judgment to the Supreme Court of the State of Illinois on, to wit, July 28, 1930, said defendant took possession of said lands condemned as aforesaid, after having filed its bond in the sum of thirty-three thousand dollars ($33,000.00), all according to the Statutes of the State of Illinois, made and provided.

“It is further stipulated by and between said parties that on, to wit, the 7th day of March A. D., 1931, said defendant paid to said plaintiff said sum of sixteen thousand five hundred dollars ($16,500.00) agreeing at the time that the payment of said sum by the defendant and° the acceptance of the same by the plaintiff should not be held or construed by either of the parties to be a waiver of any interest on said judgment of sixteen thousand five hundred dollars ($16,500.00) from and after the time that the said defendant took possession of said lands up to the time of the payment of the said amount by said defendant to said plaintiff.

“It is further stipulated by and between said parties that said defendant had possession ■ of said lands as aforesaid and did not pay to said plaintiff either rent for said lands or interest on said judgment and that the said defendant has at all times refused to pay interest on said judgment or rent for said lands as aforesaid, and still refuses to pay said interest.

“Dated Rockford, Illinois, this.........day of December, A. D., 1931.

“North, Linscott, Gibboney & North, Attorneys for John August Johnson.

Bruce H. Garrett, Attorney for Sanitary District of Rockford.”

The court found for the plaintiff (appellee) and against the defendant (appellant) in the sum of $501.88, being the interest at the rate of five per cent on said judgment on the sum of $16,500, from July 28, 1930, to and including March 7, 1931. This amount of interest was on the said sum from the date that said appellant took possession of said land until the date of the payment of the judgment.

It is shown by the stipulation that the Sanitary District of Rockford filed its petition in the county court of Winnebago county and demanded certain lands belonging to the appellee to be used for a certain purpose in connection with the business of said appellant; that on the 9th day of January, 1930, the judgment was entered in said county court of Winnebago county in said condemnation proceedings against the defendant for the sum of $16,500.

From this judgment an appeal was taken by the appellee to the Supreme Court of the State of Illinois. At the February Term, 1931, of the Supreme Court, the judgment of the county court of Winnebago county was affirmed. During the period from January 9, 1930, the date that the judgment was entered in said county court and the time said judgment of said county court was affirmed by the Supreme Court in February, 1931, the said appellant filed its bond in the sum of $33,000 according to the statute of the State of Illinois, and took possession of the land described in said cause. The said judgment was paid by the appellant to the appellee in the sum of $16,500, on the 7th day of March, 1931.

The only question involved is: “Was the judgment in the County Court of Winnebago County such a judgment as would under the Statute draw interest from the day the judgment was rendered until the time the judgment was paid?” Paragraph 3, ch. 74, Cahill’s Illinois Revised Statutes, 1931, provides: “Judgments recovered before any court or magistrate shall draw interest at the rate of five (5) per centum per annum from the date of the same until satisfied. When judgment is entered upon any award, report or verdict, interest shall be computed at the rate aforesaid, 'from the time when made or rendered, to the time of rendering judgment upon the same, and made a part of the judgment.”

It will be noticed in this case that the court allowed interest from the date that the appellant took possession of the property until the date that it actually paid the award. In the case of the University of Chicago v. Chicago, 258 Ill. App. 189, the court in passing upon the same question made an exhaustive review of all the cases relating to payment of interest on judgments, and on page 196 say: “A judgment for compensation entered in a proceeding to condemn property under that act, is by the provisions of the act conditional and not final, and that as the same has been consistently construed by this and the Supreme Court of the State, a judgment entered pursuant thereto does not draw interest until the condemnor takes' possession of the property.” See also Cook v. South Park Commissioners, 61 Ill. 115, in which the court say: “We think that interest should be allowed upon judgments, when final, in proceedings of this character. They are within the spirit, if not the terms, of the statute which allows interest upon all judgments recovered.”

In the case of Moll v. Sanitary Dist. of Chicago, 228 Ill. 633, the court, in quoting briefly from an Ohio case, quotes as follows: “We see no error in this proceeding. Where private property is taken by the public for its use, the constitution guarantees to the owner a full compensation. To take the property and deposit the compensation in the hands of a public officer, where the owner cannot reach it, is to deprive the owner of the use of his property without giving him the use of the compensation. It is to take from him the use of his property without any compensation. In the light of this constitutional provision .the real parties to the transaction are the public on the one hand and the owner of the property on the other. By its laws the public has authorized the corporation; as its agent, to take the property, and has provided that the compensation shall be withheld in the hands of one of its own officers after the property is taken. This, of course, necessitates a loss to some one of the interest on that compensation. It is not just that the loss should be cast upon the owner. The law by which the loss is occasioned is no act of his, but an act of the public, and he has no power to repeal or modify it so as to avoid the loss. He is compelled to be passive, and can only insist, as he does in this case, that compensation for his property taken by the public shall either be paid at the time it is taken, or paid with interest, or with an allowance for the use of the property during the time it is withheld. ’ ’

We do not think it is sufficient for the appellant to say that because the appellee appealed the case, it put it beyond the power of appellant to pay the sum of money that had been awarded as damages to the appellee. The appellee had a right to appeal from the decision of the county court. It was the right given him by law, and the mere fact that he prosecuted his appeal, as he was entitled to do under the law, should not prevent him from recovering interest when the appellant entered and took possession of the property and exercised its right of ownership over the same. All of the cases to which our attention has been called where this question has been alluded to seem to hold that the owner of the land is entitled to interest on the judgment awarded in any condemnation proceeding from the time that the condemnor takes possession of the premises until the amount of the judgment is paid.

In view of the law as we understand it, and the facts as disclosed by the stipulation in this case, we are of the opinion that the judgment of the circuit court of Winnebago county was correct, and the judgment is therefore hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wolpe

text:
    William Day, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 8,518.

      Opinion filed February 23, 1933.
    Nelson J. Wilcox and Miller, Elliott & Westervblt, for appellant.
    John E. Cassidy, for appellee.
   Mr. Presiding Justice Wolpe

delivered the opinion of the court.

This is an action of trespass on the case to recover damages for personal injuries under and by virtue of the Federal Employers’ Liability Act, which in substance is as follows: “Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” Cahill’s St. ch. 114, ¶ 321.

The plaintiff, appellee here, filed his suit in the circuit court of Peoria county and alleged that the defendant company was the owner of a railroad, including tracks, roadbed, instrumental and incidental to, and ordinarily used in, the operation of railroad trains, and incidental to the same the defendant company operated a certain roundhouse in South Pekin, in the county of Tazewell, State of Illinois, and that said roundhouse was maintained and operated for the repair and care of locomotive engines owned by the defendant and used on their said railroad.

Plaintiff averred that on February 21, 1929, the defendant was engaged in the business of carrying freight, which is commonly known as interstate commerce as described in the Statutes of the United States and the State of Illinois; that on said 21st day of February, 1929, and for a long time preceding that date, the plaintiff was employed by the defendant as repair man in repairing locomotives of the defendant in said roundhouse; that on said date he was directed by his foreman to do work on a certain locomotive of the defendant in said roundhouse; that said engine had been used by the defendant in interstate commerce, and that it was the intention of the defendant company to put said engine back in interstate commerce as soon as the repairs had been completed on the same. The plaintiff further avers that while he was in the exercise of reasonable care for his own safety, and while working upon this said locomotive, that through the carelessness and negligence of the servants of the defendant, the plaintiff was injured and suffered great damage.

The defendant filed a plea of general issue, and gave notice of proof of assumption of risk and contributory negligence.

The case was heard before a jury. At the close of the plaintiff’s evidence, the defendant asked the court to direct a verdict in its favor. The defendant then offered evidence and at the close of all of the evidence defendant renewed its motion for a directed verdict. This motion was also denied. The jury by their verdict found in favor of the plaintiff and assessed his damage at $35,000. Motion in arrest of judgment was overruled, and judgment was entered in favor of the plaintiff and against the defendant in the sum of $35,000, and the case comes to this court on appeal.

The appellant insists that the evidence fails to show that the appellee was injured while he was working on an engine which was engaged in interstate transportation, or was so closely "related to it as to be a part thereof. It will be noted that the defendant company filed a plea of general issue, and the appellee now insists that by filing such plea the appellants admitted that th'ey were the owners, not only of the engine in question and that they were engaged in interstate commerce, but also that the plaintiff was injured while engaged in interstate commerce, or so closely related that it would be practically a part thereof.

The appellee, in his brief, has cited numerous cases to sustain his contention, but an examination of those cases discloses that none of them goes so far as appellee’s contention in this case. No doubt the plea of the general issue in a case of this kind admits ownership of the railroad and also the ownership of the engine upon which the plaintiff was working at the time he was injured.

We have been unable to find any case in which the present question was squarely raised before the court, but in the case of Carr v. United States Silica Co., 153 Ill. App. 511 (a Second District case) in which the question whether a plea of general issue admitted that the injury of the plaintiff was caused by the servants of the defendant, the court in that case held that the plea of general issue did not admit such facts, but that it was incumbent upon the plaintiff, when he had averred the same in his declaration to prove that as a question of fact. The same doctrine is announced in Condon v. Schoenfeld, 214 Ill. 226. We are of the opinion that the defendant, by filing a plea of general issue, did not admit that the plaintiff at the time of the injury was engaged in interstate transportation work and the burden was upon the appellee to prove that as a question of fact.

At the time of the hearing, counsel for the appellant admitted that the railroad company was engaged in interstate commerce and waived any proof of that fact. By this stipulation the appellee insists that the defendant admitted also that the engine on which the plaintiff was working at the time of the injury was engaged in interstate transportation. From a .reading of what was said between the attorneys and the court at that time, we do not believe it is subject to the interpretation which the appellee has placed on it. It may well be said that the defendant railroad was engaged in interstate commerce, and yet, the engine on which the plaintiff was working may have had no connection whatever with such transportation.

In the case of the Chicago & N. W. Ry. Co. v. Bolle, reported in 284 U. S. 73, the court calls attention to the difference between transportation and commerce, and says: “Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion, and that the true test of employment in such commerce in the sense intended is, was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. (See Swift & Co. v. United States, 196 U. S. 375, 398, 49 L. Ed. 518, 525, 25 Sup. Ct. 276.)

“It will be observed that the word used in defining the test is ‘transportation,’ not the word ‘commerce.’ The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower signification was chosen understandingly and deliberately as the appropriate term. The business of a railroad is not to carry on commerce generally. It is engaged in the transportation of persons and things in commerce; and hence the test of whether an employee at the time of his injury is engaged in interstate commerce, within the meaning of the act, naturally must be whether he was engaged in interstate transportation or in work so closely related to such transportation as to be practically a part of it.”

It. is our opinion that the plea of general issue and the admission of the attorney for the defendant did not relieve the plaintiff from proving that, at the time he was injured, the engine on which he was working was engaged in interstate transportation or work so closely related to it as to be practically a part thereof.

The next question for the court is: “Was the plaintiff so engaged at the time of the injury?” This same question was before this court in the case of Bolle v. Chicago & N. W. Ry. Co., and reported in vol. 235 Ill. App. 380. In that opinion we reviewed many of the cases in the United States Supreme Court and differentiated them from the Bolle case. In the Bolle case the court followed the rule as laid down in the case of Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, which is similar to this case.

In the Shanks case it was held that an employee in a machine shop operated by a railroad company in which locomotives used in interstate transportation were repaired, was not employed in interstate commerce within the meaning of the Employers’ Liability Act, as it appeared that he was injured while engaged in taking down and putting into a new location the overhead countershaft to which power was communicated to some of the machinery in the repair work. In the present case it is not disputed that the engine on which the plaintiff was working at the time he was injured on February 21, 1929, had been used in the interstate work on defendant’s railroad, and on February 14, 1929, was withdrawn from active use and put in the shops of the defendant company at South Pekin, Illinois, and was not put back into active use until March 16, 1929, a period of 30 days in which it was not used in any kind of transportation. When it was again used it was put back into the same kind of work in which it had been engaged prior to the time it was put into the shops for repair.

In the case of the New York Cent. R. Co. v. Marcone, 281 U. S. 345 (cited by appellee), a man was employed as an oiler, who oiled and greased engines in the roundhouse of the defendant. He was engaged in oiling and greasing engines that had come in from a run carrying interstate commerce and was being taken out and again engaged in the same work. A reading of the case discloses that whether the engine on which the deceased had been working was engaged in interstate transportation was not a question in the case. The deceased had finished his work on this particular engine and the hostler had gotten onto the engine and was backing it out, preparatory to turning it on the turntable to be used in hauling freight, when the engine ran over the deceased and killed him. The main contention of the defendant was that the deceased had finished his work on this particular engine and the foreman of the roundhouse had directed him to go to work on another engine and he was not engaged in that work at the time he was killed. The court held that he was still on duty, and his presence on the premises was so closely associated with his employment in interstate commerce as to be incident to it, and entitled him to the benefits of the Employers’ Liability Act.

In the case of the Industrial Accident Commission of California v. Davis, 259 U. S. 182, an employee of the railroad company was working in a general repair shop of said company upon an engine which had been engaged in interstate commerce. The engine was being repaired with the expectation of' again being employed in such commerce and at the time it was stripped and dismantled. It had been in the shops-for a month. The employee was injured while working on said engine. It was held that he was not engaged in interstate transportation, or work so closely related thereto as to be practically a part thereof.

In the case of the Minneapolis & St. Louis R. Co. v. Winters, 242 U. S. 353, an employee of the railroad was injured while making repairs in the roundhouse upon an engine which had been used by the defendant company in hauling freight trains carrying both interstate and intrastate freight. After the man was injured the engine was used in the same manner. It was held that the employee was not engaged in interstate transportation within the meaning of the Federal Employers ’ Liability Act. In that case the court say: “The plaintiff was making repairs upon an engine. This engine ‘had been used in the hauling of freight trains over the defendant’s line. . . . which freight trains hauled both intrastate and interstate commerce, and it was so used after the plaintiff’s injury.’ The last time before the injury on which the engine was used, was October 18, when it pulled a freight train into Marshalltown. It was used again on October 21, after the accident, to pull a freight train out from the same place. That is all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the States. An engine, as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities, or upon accidental later events,”1

From an examination of the evidence in this case we are of the opinion that the appellee has failed to prove that the engine on which he was working when injured was engaged in interstate transportation, so as to be practically a part of it, and, therefore, he was not employed in interstate commerce within the meaning of the “Federal Employers’ Liability Act.” The appellant has assigned other causes of error, but in our view of the case it is not necessary to discuss them as the adjudication of the question that we have discussed fully disposes of the case. The judgment of the circuit court of Peoria county should be and is reversed.

Judgment reversed.