author: Mr. Justice Denis E. Sullivan

text:
    Charles Koch, Minor, by Charles F. Koch, Sr., His Father and Next Friend, Appellee, v. City of Chicago, Co-Appellant, and Welsbach Traffic Signal Company, Appellant.
    Gen. No. 40,039.

      Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Barnet Hodes, Corporation Counsel, for co-appellant; Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    - Otto M. Hamer, of Chicago, for appellant; Chester D. Bjern, of Chicago, of counsel.
    Guy C. Guerine, of Melrose Park, and Elmer W. Arch, of Chicago, for appellee; Guy C. Guerine, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the circuit court in favor of the plaintiff Charles Koch, a minor, for $10,000 and costs, and against both defendants, for personal injuries alleged to have been sustained by plaintiff on May 20, 1930, while playing near the base of a curb flasher traffic signal light in the city of Chicago. The cause was tried before a jury. The Welsbach Traffic Signal Company, defendant, brings this appeal and, by notice of appearance, the city of Chicago joins in said appeal.

Motions were made by defendants for judgment non obstante veredicto, for a new trial and in arrest of judgment, all of which were overruled.

The defendant city of Chicago raises no issue as to the pleadings, whilst the other defendant Welsbach Traffic Signal Company claims the cause of action was insufficiently stated in the complaint.

Plaintiff’s theory of the case is that the defendant city of Chicago was primarily liable because of its failure to keep its streets, sidewalks and parkways in a reasonably safe condition; that the city of Chicago was liable because of its failure to keep the street lighting signal in a reasonably safe condition and repair; that both defendants are liable for maintaining an attractive nuisance and in neglecting to repair the flasher signal light and in permitting a caustic solution to remain exposed in the base of the signal post without being protected in any way.

Defendants ’ theory of the case on behalf of the City is that the existence of an attractive nuisance had not been proven as to plaintiff and that the evidence does not show any negligence on the part of the City.

The theory of the defendant Welsbach Traffic Signal Company, is that the complaint is an attempt to allege a. tort based upon the violation of a contract to which plaintiff was not a party; that the City installed, possessed and maintained the signal light in a governmental capacity under the statute; that the primary duty of keeping it in repair was on, and remained that of the City; that said public duty was not and could not be delegated to the defendant Welsbach Traffic Signal Company under its contract to install and patrol and repair the signals.

The Welsbach Traffic Signal Company further contends that the plaintiff introduced no evidence to show that said company was chargeable with notice that the post had been broken or that it had violated its contract in any respect, or did anything other than install the type of signals according to the plans and specifications furnished by the City through the commissioners of public works; that the evidence shows that the signal light was located on a public street over which the City had sole control, and there was no evidence to show that this defendant had any authority to permit, entice, or invite children to play around the signal, and no evidence that it did so.

There does not seem to be any real dispute as to the actual facts.

The evidence tends to show that plaintiff at the time of the accident was a boy approximately 12 years of age, but was somewhat subnormal and played with children younger than himself; that the accident happened at the intersection of Mansfield avenue and Bloomingdale avenue in the city of Chicago; that Mansfield avenue was a dead-end street and east of it, the prairie had been used as a dumping ground and also as a playground and that part of the playground near the signal light post was free from rubbish and other materials; that there was a path leading from the street to the prairie which ran along side the signal light post.

The evidence further shows, according to plaintiff’s witnesses, the signal light post had been knocked down approximately two weeks prior to the time of the accident and, according to defendants’ witnesses the light post had been down for a period of 10 or 12 days.

The evidence further shows that children had been playing in the prairie and around the light post from the time the post was knocked down until the time of the accident and were seen around the broken post and curb daily; that two police officers lived in the same block as plaintiff and passed the light post every day.

The evidence further shows that defendants failed to remove said broken signal light post; that said signal light post had a cylindrical base which contained a cylindrical tube approximately 14 inches in diameter and which extended into the ground; that said base was filled with a dangerous and highly injurious caustic solution or liquid; that the light post when knocked down was thrown over its base, leaving exposed to the children playing at that point the cylinder and its contents ; that two batteries were in said liquid; that the liquid was described as a caustic alkaline solution consisting of a mixture of carbonate of soda and sodium hydroxide.

The evidence further shows that this caustic or burning fluid when placed upon the flesh will eat into it; that plaintiff and another boy were playing around the base of the broken light post and, just before the accident, they were sitting on the lamp post which was lying on the ground and, in some way, the fluid was splashed out of the cylinder or base container which was open and exposed and some of the fluid went into plaintiff’s eye; that plaintiff ran screaming from the place to his home; that something white was coming out of his eye and he was taken to a doctor who described his injuries as being caused by something that had been splashed into his eyes; that he was under the doctor’s care for many months and operations were performed on his eyes, so that he now has vision of about 80 per cent in one eye and about 20 per cent vision in the other eye.

The evidence further shows from the testimony of several doctors that medical examinations disclosed that the plaintiff’s left eye was red and bloodshot; that the white part of the eye was infected which had a tendency to cause plaintiff to keep blinking his eye's; that there was evidence of a growth in the eye, extending from the inner eyelid toward the pupil which growth had been removed several times; that there was a scar in the lower lid, extending between the eyeball and the lower lid; that there was stress and strain placed upon that scar; that he had difficulty in moving his left eye in all directions due to this scar; that plaintiff could not completely close the eye; that the scar tissue in the eye grew practically over the entire pupil and covered two-thirds of it; that the condition was caused through trauma and not the result of disease and that the constant irritation would tend to destroy what little sight remained.

The evidence further shows that another doctor who examined plaintiff on two occasions found that the left eye had two-tenths vision and the right eye had eight-tenths; that there was an impaired movement of the left eyeball and the doctor also found adhesions in plaintiff’s eye, which were caused by inflammation, secondary to a cut or bruise; that the condition was caused through trauma.

Other doctors who testified for plaintiff and defendants agreed that such a caustic solution as was at the base of the light post, was the “worst thing” with which an eye could come in contact and that it could cause loss of sight. .

The superintendent of the Welsbach Traffic Signal Company testified that the bases of the lights were filled with a caustic soda solution and that carbon forming the top of the cylinders in the base of the light is porous and crumbles.

The evidence further shows that this light post had been manufactured by the defendant Welsbach Traffic Signal Company; that the terms of the contract between said company and the City, provided for the erection and maintenance, and they further agreed to patrol the lights and keep them in working condition and that they made an inspection once every two weeks; that a notice was served upon the city of Chicago on September 19, 1930, with reference to the accident, in compliance with the statute. The defendant Welsbach Traffic Signal Company claimed that they did not receive such notice and the evidence shows that they did not. Plaintiff claims the statute makes no provision other than that municipalities should receive a written notice.

It was not necessary that a notice be served upon the defendant Welsbach Traffic Signal Company before commencing suit. Chapter 70, par. 7, sec. 2, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.148], provides for the serving of notice on any incorporated city, village or town within six months from the date of injury. This requirement as set forth in the statute could not be extended to apply to codefendant corporations or individuals. Municipalities, such as the city of Chicago, are charged with the primary duty of keeping their streets, sidewalks and parkways in a reasonably safe condition. Budek v. City of Chicago, 279 Ill. App. 410; Simon v. City of Chicago, 279 Ill. App. 80. This is not a limited duty, but it extends to. any part or portion of the streets, sidewalks or parkways or portions immediate and adjacent thereto. Caruso v. City of Chicago, 278 Ill. App. 247.

It is no defense on the part of a municipality to claim it is exempt from this obligation for the reason that it had delegated that duty to a contractor or third party. Cole v. City of East St. Louis, 158 Ill. App. 494; Nichols v. City of Collinsville, 165 Ill. App. 457. In the instant case the maintenance of said signal lights was purely ministerial, and negligence pertaining thereto created a liability. Blackaby v. City of Lewistown, 265 Ill. App. 63; Bedtke v. City of Chicago, 240 Ill. App. 493.

It is contended by the defendant that the doctrine of an attractive nuisance does not apply. In this case the evidence shows that for a period of over two weeks a receptacle containing a caustic solution was permitted to remain close to a public highway in a part of the city occupied by residences, where children were known to congregate and play. In fact the end of the street was used as a public playground. A signal lighting pole had been broken down and was lying across the parkway. Just what caused the pole to have been broken does not appear in the evidence. Such an unusual condition of the light pole would naturally attract the attention of a child and, the youthful mind being naturally inquisitive, would cause the child to investigate such situation and would lead him into danger if, as in this case, the same existed. In passing on the facts the jury in our opinion was justified in finding this condition to be an attractive nuisance. O’Donnell v. City of Chicago, 289 Ill. App. 41; Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321; Brownell v. Village of Antioch, 215 Ill. App. 404.

As we view this case both defendants are liable on either theory that may be adopted:

1st. The negligence of the defendants in failing to . maintain the streets and public places in a reasonably safe condition;

2nd. The maintenance of this unusual and attractive nuisance.

Either of these acts by the defendants was the proximate cause of the plaintiff’s injury. The act of another child, in splashing the fluid into plaintiff’s eyes, if such happened, was not such an independent or unrelated act as could excuse the defendants from their original negligence. Seith v. Commonwealth Elec. Co., 241 Ill. 252; Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558; Village of Carterville v. Cook, 129 Ill. 152. These questions, however, were properly left to the jury to determine.

As to whether or not the City and the other defendant used proper care and for what length of time the dangerous condition existed before the defendants could be charged with notice and what degree of care defendants should use in dealing with a dangerous substance, were all questions for the jury to determine. Decatur v. Besten, 169 Ill. 340; Mowery v. City of Mounds, 245 Ill. App. 338; McClure v. Hoopeston Gas & Elec. Co., 303 Ill. 89.

We think the objection made by one of the defendants to the pleadings, cannot be considered by this court as such objection was not made at the time of the trial. Farmer v. Alton Bldg. & Loan Ass’n, 294 Ill. App. 206; Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, subpar. 3, sec. 42 [Jones Ill. Stats. Ann. 104.042],

We do not believe prejudicial error was committed in permitting the admission of evidence particularly with relation to the testimony of the physician. As was said in Kimbrough v. Chicago City Ry. Co., 272 Ill. 71 at page 78:

“In cases where there is no dispute as to the manner and cause of the injury and no dispute that there was an injury sustained by reason of the acts of which complaint is made, this court has held that a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound. (Schlauder v. Chicago and Southern Traction Co., 253 Ill. 154; City of Chicago v. Didier, 227 id. 571.) ”

Complaint is made that the damages are excessive. The evidence shows there was scar tissue or a growth in the eye extending from the inner eyelid toward the pupil and that this tissue grew practically over the entire pupil, covering two-thirds of it and that this condition was caused through trauma and not the result of disease and that constant irritation would tend to destroy what little sight remained; that plaintiff had only two-tenths vision in the left eye and the right eye had eight-tenths; that the condition of the left eye would have a tendency to injure the right eye and that this condition would increase rather than decrease with the passage of time.

The fact that the boy was subnormal would make the loss of his eyesight an additional burden upon him in the battle of life. We think the verdict of the jury and the judgment of the circuit court should stand.

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

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Albert Siefker, Appellee, v. City of Chicago Heights and William H. Laue, Appellants.
    Gen. No. 40,172.

      Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed October 26, 1938.
    Edwin B. Poorman, of Chicago, for appellants.
    Paul R. Schreiber, of Blue Island, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order issuing a writ of mandamus in favor of plaintiff Albert Siefker and against the defendants, city of Chicago Heights, a municipal corporation, and William H. Lane, city treasurer, compelling said defendants to pay money which they had collected by special assessment to apply upon a special assessment bond which the plaintiff had purchased and owned and which by its terms was to be paid out of such money so collected.

The writ by its terms ordered the defendants, the City and its treasurer, to apply to the payment of plaintiff’s bond certain moneys collected by them and now held by them to the credit of the instalment of the special assessment against which plaintiff’s bond was issued.

There is no controversy over the facts, which are substantially as follows:

The defendant City, pursuant to the provisions of the Local Improvements Act, caused to be levied a special assessment for the purpose of paying the cost of certain local improvements, known as Assessment No. 275; that said assessment was divided into and made payable in 10 annual instalments with interest thereon at 6 per cent per annum; that said improvement was constructed and completed and said assessment became payable and was put into collection by the defendant; that the defendant City issued its local improvement bonds in anticipation of the collection of the deferred instalments of said assessment which bonds were delivered in payment of the cost of construction of said improvement; that all instalments are now past due.

The facts further show that the amount of the ninth instalment of said assessment as levied and confirmed by the said defendant City was $2,512.44; that the amount of local improvement bonds issued by the said City in anticipation of the collection of said ninth instalment of said assessment was $2,000 which was evidenced by two bonds bearing Nos. 1 and 2 respectively, each in the amount of $1,000, maturing December 31, 1935; that prior to maturity thereof plaintiff became the owner of bond No. 1.

The facts further show that the defendant Lane took office as city treasurer of Chicago Heights on July 13, 1935. Up to that time the defendant City had collected and received on account of the said ninth instalment of said assessment, the total sum of $322.68; that prior to July 12, 1935, said defendant City paid in full and canceled, before its maturity, said bond No. 2 in the amount of $1,000 issued against said ninth instalment, leaving a deficit or overdraft in the principal account of said ninth instalment of $677.32, as of the date the defendant Laue took office. In other words, a former city treasurer had paid out $677.32 more than had been collected thereon. Bond No. 2 had been paid, collected and canceled, leaving bond No. 1 the only outstanding bond against the instalment.

The facts further show that during the period from July 13, 1935 to December 31, 1937, inclusive, the defendant City collected and received on account of the principal of the said ninth instalment of said assessment $678.40, which was placed in the care, custody and control of the defendant Laue as city treasurer; that during the month of February, 1936, petitioner presented his said bond No. 1 issued against the ninth instalment to defendant Laue for payment and received $95.76 on account, leaving a balance due of $904.24; that the payment of $95.76 was made to plaintiff out of moneys received on account of the principal of said ninth instalment; that the net sum collected during the defendant Laue’s term as treasurer was $1.08, owing to the deficit or overdraft in the ninth instalment for the sum of $677.32; that the treasurer did collect $678.40, and subtracting $677.32 from that sum leaves $1.08. This was due to the wrongful payment of bond No. 2 by the former city treasurer.

Plaintiff contends that his bond being the only bond now outstanding against the instalment, he is entitled to all moneys collected by the defendants upon that instalment which has been allocated and is now held by the defendant Laue to the credit of that instalment, regardless of whether or not there had been an overdraft or overpayment against other bonds issued against that instalment prior to the present treasurer’s term of office.

Defendant contends that the present treasurer must apply all moneys collected by him upon that instalment to the elimination of the overdraft existing in that instalment at the date upon which he took office (caused by the payment, upon other bonds of that instalment, of more money than had been then collected), and that until that deficit or overdraft has been ehminated, the treasurer has no right or authority to apply any of the moneys collected upon that instalment to the payment of plaintiff’s bond.

The only question here involved is whether or not plaintiff is now entitled, as the holder of the only outstanding bond, to the money collected by defendant Laue, regardless of whether or not there had been an overdraft or overpayment against other bonds.

There is no contention made that the defendant Laue wrongfully diverted any collections during his term of office. The only controversy is as to how he shall apply the money held by him as city treasurer, in order to make up this deficit.

Plaintiff is entitled to the money on hand as plaintiff’s bond is the only bond outstanding against the instalment.

The foregoing statement of the case is taken almost verbatim from defendants’ brief and states the questions very fairly.

The wrongful action of the former city treasurer in diverting the collections, is not a matter which could legally affect the rights of this plaintiff. The City was a mere trustee for the collection of these funds, they being the proceeds of a special assessment, or trust fund, for the payment of the bonds issued before the collection of such assessment, and such proceeds of the collection of the special assessment were to have been used only in payment of such bonds. Rothschild v. Village of Calumet Park, 350 Ill. 330; People ex rel. Anderson v. Village of Bradley, 367 Ill. 301; Cook v. City of Staunton, 295 Ill. App. 111.

As was said in the case of People ex rel. Anderson v. Village of Bradley, 367 Ill. 301, at page 307: “The money collected by the village from the special assessment levied to pay the cost of the improvement constituted a trust fund available to those having legal claims for materials furnished, or labor performed, in the course of the construction of the sewer. The village could not lawfully appropriate any part of those funds to other corporate uses. The withdrawn funds are treated as still in the custody of the village for the purpose of paying the liability imposed by its contract for the improvement. To permit the village to say it no longer has the money, or is unable to pay, would be to place municipalities in a position to defeat the lawful claims of contractors who have, in good faith, fulfilled their undertakings for the construction of, or the furnishing of materials or labor for, local improvements. The law will not countenance the evasion by a village of its debt, by either its wilful or negligent failure to apply towards the discharge of that obligation funds collected by it for the specific purpose of meeting such demand. Conway v. City of Chicago, 237 Ill. 128; Rothschild v. Village of Calumet Park, supra.

It is admitted that the money has been collected by the City through its city treasurer. It should not and cannot be used for any purpose other than paying the bond held by the petitioner. If a former treasurer has diverted the fund, doubtless he filed a bond securing the faithful performance of his duty and the City is thereby protected.

We think the writ was properly issued and for that reason the judgment order of the city court of Chicago Heights is hereby affirmed.

Judgment order affirmed.

Hall, P. J., and Hebel,, J., concur.


text:
    Merry Fahrney Berlingieri, Appellee, v. Arturo Berlingieri, Appellant.
    Gen. No. 40,194.

      Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Kamfner, Halligan & Marks, of Chicago, for appellant; Edwin A. Halligan and Samuel M. Lanoff, both of Chicago, of counsel.
    Frank E. Cantwell, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This cause comes to this court on an appeal from a decree of divorce entered in the circuit court in favor of plaintiff Merry Fahrney Berlingieri and against defendant Arturo Berlingieri on the ground of cruelty.

From the testimony it appears that the plaintiff claims she resided in Chicago, Illinois, prior to her marriage to said defendant and that said defendant prior thereto resided in Borne, Italy; that plaintiff and defendant were married in Harrison, New York on July 31,1937; that after they were married plaintiff lived at the Lowell hotel in New York and defendant lived at the Gladstone hotel in New York; that at the request of plaintiff they did not live together.

The testimony further shows that thereafter on August 3, 1937, plaintiff and defendant left New York to go to Los Angeles, California, plaintiff going by train and the defendant by automobile; that plaintiff arrived in Los Angeles on August 7th and the defendant arrived there on August 9th; that they went to the Ambassador hotel in Los Angeles, but occupied separate rooms; that this was done at the request of plaintiff.

Counsel for defendant calls our attention to plaintiff’s brief wherein statements of evidence are made which do not appear in either the abstract or the record. It is unfortunate that counsel for plaintiff did this.

When this suit was commenced plaintiff was residing in California. The affidavit filed by her authorized agent to obtain service on defendant by publication gave defendant’s residence as Hollywood, California. Said document was filed on September 10, 1937, and stated defendant’s place of residence could not be ascertained, but that his last address was 1929 Woodlyan avenue, Hollywood, California. Service was had on that affidavit by publication and thereafter on October 18th defendant filed a special appearance challenging the jurisdiction of the court.

October 26, 1937, a motion was made by the defendant to dismiss the suit, together with an affidavit which stated:

“That affiant and the plaintiff in said action were married on the 31st day of July, 1937, at Harrison, New York and resided together in the State of New York until the 3rd day of August, 1937, at which time affiant left the said State of New York and went to Los Angeles, California, arriving there on the 9th day of August, 1937; that upon his arrival in Los Angeles, California he met the said plaintiff and plaintiff and affiant resided together at Los Angeles, California until the date of their separation, towit, on or about the 17th day of August, 1937; that affiant is still residing in the State of California and has never resided in the State of Illinois.

‘ ‘ That affiant is a native of Italy and ever since his birth has been a resident of Italy." That affiant has never abandoned his residence in Italy and has never at any time intended to, nor did he establish, a residence in the State of Illinois. That affiant and the said plaintiff have never resided together in the State of Illinois.

11 That affiant is informed and believes and upon such information and belief states that the said plaintiff was not a resident of the State of Illinois for a period of more than one year prior to the date of the filing of said suit.

‘1 That on the 10th day of September, 1937, the date of the filing of said suit number 37 C 11225, the said plaintiff was actually and physically residing in Los Angeles, California.”

Thereafter on November 4, 1937, an affidavit was filed on behalf of plaintiff in opposition to defendant’s motion to dismiss, which reiterated that plaintiff is a resident of the city of Chicago and admitted that the defendant was at one time a resident of Italy, but that he had abandoned his residence in Italy and has acquired residence in the State of Illinois, but no facts are given substantiating such statements. There is no evidence that defendant was in the State of Illinois at any time. It is admitted by counsel for both plaintiff and defendant that the domicile or residence of the wife is, under the law, the same as that of her husband.

In Cooper v. Beers, 143 Ill. 25, at page 32, the court said:

“ . . . after the marriage of Mrs. Cooper, and so long as the relations between herself and her husband were not adverse, his domicile was her domicile and changed with his throughout their married life. Story’s Conflict of Laws, (4th ed.) sec. 46, and note 1, on p. 58; Davis v. Davis, 30 Ill. 180; Kennedy v. Kennedy, 87 id. 250; Am. and Eng. Ency. of Law, p. 868.”

Chapter 40, par. 3, sec. 2, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.170], entitled, “Divorce” reads as follows:

“3. Residence.] §2. No person shall be entitled to a divorce in pursuance of the provisions of this Act,, who has not resided in the State one whole year next before filing his or her complaint or petition, unless the offense or injury complained of was committed within this State, or while one or both of the parties resided in this State. ’ ’

There being no sufficient proof of residence of the defendant in the State of Illinois, or even any proof that defendant had ever been within the State borders, nor any proof of residence in the State of Illinois of plaintiff after she had contracted this marriage, therefore we are compelled to presume her residence or domicile to be that of her husband. It then follows that neither plaintiff nor defendant had a residence in the State of Illinois for one whole year next preceding the commencement of suit in compliance with the provisions of the statute. It would indeed be an anomalous situation to say that a husband could have a domcile or residence in one State or country and his wife in another and yet be regarded as being one in the eyes of the law. Such an absurdity was evidently recognized by plaintiff when her affidavit was filed alleging that the defendant intended to make the State of Illinois his residence. Whatever defendant’s future intentions were in that regard would have no effect or vary the words contained in the statute, which read: “who has not resided in the State one whole year next before filing his or her complaint or petition.”

It is not contended that the so-called acts of cruelty were committed within the State of Illinois, but on the contrary, the evidence shows the alleged acts of cruelty were committed in the State of California.

While we consider the question of jurisdiction fatal to plaintiff’s case, we shall further consider the facts as shown by the record.

The testimony in substance is as follows:

A young woman and a young man, plaintiff and defendant herein, were married in New York State and after the ceremony they occupied rooms separate and apart in different hotels, later leaving for California, the wife traveling by train and the husband traveling by automobile. Plaintiff engaged separate rooms on different floors in a hotel in Los Angeles, California. The wife, plaintiff herein, was known in the hotel as “Miss Fahrney.” By what name the husband, defendant herein, who arrived at the same hotel two days later, was known at that hotel does not appear in the record except incidentally.

A day or two after their arrival at said hotel, while defendant was sitting in plaintiff’s apartment taking breakfast with his wife, according to plaintiff’s testimony, a waiter who was serving their meal and who evidently was acquainted with plaintiff, addressed her as “Miss Fahrney” and welcomed her by saying he was glad to see her at the hotel. Plaintiff contends that defendant thereupon became very much enraged because the waiter had so addressed her and stated that she was a baroness; that defendant thereupon struck plaintiff; that this occurred without plaintiff and defendant having had any previous quarrel or dispute.

Plaintiff further claims that a day or two later while she was having her hair dressed, defendant came to her room for some unknown reason and struck her, thereby driving hairpins into her head; that subsequent thereto defendant struck her for some reason unknown to plaintiff while newspaper men were waiting outside the room to take their photographs, which were thereupon taken; that plaintiff made no complaint of defendant’s conduct to the newspaper men nor did plaintiff object to posing with defendant with the so-called “black eyes” which she alleged she received a few moments before the newspaper men came into the room.

All acts of cruelty as charged by plaintiff were flatly denied by defendant.

The acts of cruelty complained of were alleged to have been perpetrated prior to August 20th, and in plaintiff’s testimony she alleged that she continued to cohabit with defendant as his wife until August 17th. If the acts of cruelty were committed at the time plaintiff has claimed they were, she evidently did not fear bodily harm as she continued to live with the defendant thereafter without objection.

The rule of law in this State regarding what acts of cruelty are sufficient to entitle a party to a divorce has been the subject of discussion and decision by our Supreme Court on many occasions. The cruelty to which the statute refers has been construed to mean physical acts of violence, bodily harm such as endangers life or limb; such acts as raise a reasonable apprehension of bodily harm and show a state of personal danger incompatible with the marriage state. Bad temper, petulance of manner, rude language, want of civil attentions or angry or abusive words are not sufficient grounds for divorce on the ground of extreme and repeated cruelty. Trenchard v. Trenchard, 245 Ill. 313; Fizette v. Fizette, 146 Ill. 328; Embree v. Embree, 53 Ill. 394; Vignos v. Vignos, 15 Ill. 186; Maddox v. Maddox, 189 Ill. 152.

There is not sufficient evidence in this case to prove that the acts of cruelty charged were committed in anger, without justifiable provocation or that the plaintiff was seriously hurt on either occasion, nor does the evidence show that plaintiff might reasonably fear she was in danger of receiving bodily harm at the hands of her husband if she continued to live with him. (Some of plaintiff’s witnesses called the striking “a slap”.) On the contrary the evidence shows that plaintiff telephoned to the defendant, after the alleged assault and left a written message which appears in evidence, using her maiden name, asking that he come to see her. This mute evidence served as an impeachment of plaintiff. Together they visited night clubs that same evening in Hollywood. The proof is ample that plaintiff magnified any so-called acts of cruelty by defendant.

In reply to a question asked of plaintiff by her counsel as to how she treated her husband, which was the only evidence offered by plaintiff on that issue, plaintiff replied, “As kindly as was possible.” Just what this means as proof as to what her attitude toward defendant was, or as to what she had done for him as a wife, we are unable to fathom. Just why plaintiff insisted that they occupy separate rooms is not explained by her. In her complaint she did not allege that she had been without fault or had been a kind and dutiful wife. Plaintiff’s testimony on this important subject was very vague and proved nothing.

At this time we might call attention to lack of evidence or proof of any wifely care or devotion or attention having been exhibited by plaintiff towards her husband.

The uncontradicted evidence of defendant is that when he arrived in California his wife told him that she was going out with a gentleman for the evening and he must not be surprised if she called her friend “darling” and “honey;” “that this was America.” The evidence further shows that plaintiff wanted defendant to go for a trip around the world by himself and she would meet him in Paris later. We are not impressed by these actions, as proof of conjugal affection and devotion,

Claim is further made by defendant of lack of proof and of plaintiff’s failure to prove her case by a preponderance of the evidence.

In a case of this character, where the lack of jurisdiction and the lack of proof is so pronounced, we think it well to consider the public policy of this State with relation to divorce as defined by our Supreme Court. In matters of divorce the State itself is always a party to the suit. Such public policy of the State does not favor divorce but, on the contrary, favors the maintaining of the family relation. In referring to the power which is vested in the chancellor to take action in a divorce proceeding entirely without and beyond the issues made by the parties, our Supreme Court in the case of Decker v. Decker, 193 Ill. 285, at page 287, said: “A proceeding for the dissolution of th^ marriage relation involves interests other than those of the husband and wife who are the parties complainant and defendant. The separation of husband and wife by judicial decree concerns vitally the children, if any, of the discordant couple, and affects, in a general way, the home life and domestic relations of the people, the public morals, the prevailing system of social order, and, in a greater or lesser degree, the welfare of every citizen. These interests are not represented by either of the parties to a divorce proceeding, but the law has not left them unprotected. It is within the power of the chancellor of whom a decree of divorce is asked to stand as a representative of the public, and, in a proper case, to refuse to grant the decree though the grounds of such refusal be without the issues made by the pleadings of the parties.

“ . . . ‘The State is interested in the preservation of the marriage relation, since this relation is pro-motive of morality and inures to the perpetuation of its citizens. . . . Since, as citizens of the State, the relatives and children of the parties have an interest in the marriage but cannot be protected, as they cannot become parties to a divorce suit, the interest of such persons is said to be represented by the court. In some States the court is relieved of such anomalous position by statutes authorizing the appearance of a prosecuting attorney or other officer to represent the State.

In the case of Winning v. Winning, 366 Ill. 57, at page 64, the Supreme Court said:

‘ ‘ The State has always been an interested third party in all divorce actions under the public policy of this State and we have consistently held to a rigid enforcement of the provisions of the Divorce act. (Trenchard v. Trenchard, 245 Ill. 313; Leland v. Leland, 319 id. 426; Decker v. Decker, 193 id. 285.)”

As -shown by these authorities the public policy of the State is, as we have heretofore stated, not to favor the granting of a divorce unless there is a strict compliance with the divorce statute. The chancellor has wide discretion and is not confined to the pleadings or the proof offered by the parties. His duty is to see that the interest of the State and its public policy are protected and enforced in all cases of this character. Frequently, this duty which has been cast upon the chancellor is not observed, not alone because the chancellor has neglected his duty, but because he has no means at hand with which to search out the facts. We think the divorce situation in this jurisdiction calls for plain speaking. While there are bona fide eases where the divorce statute gives a deserved relief, yet anyone familiar with the situation has good reason to believe that a great number of divorce cases are tainted by collusion, perjury and fraud. The obtaining and granting of divorce has almost become an industry. It is now time that those charged with upholding the law clean these “Augean stables.”

If a provision were made that a proctor or person be appointed by the court, and held solely responsible to the court, so that such person could investigate fully, searching out the facts to determine whether or not the public policy of the State was being observed in questionable cases, this would aid the court greatly in arriving at a correct conclusion and beneficial results would flow therefrom.

On the other hand where the rule of public policy of the State is not observed and divorces are granted without a strict compliance with the provisions of the statute, such action results in lowering the public respect for courts and destroys the high esteem in which they should be held, thus putting our courts on a basis of what has often been termed in other jurisdictions as “divorce mills.”

From a review of this record we do not believe that either the plaintiff or the defendant was a resident of the State of Illinois under the provisions of the law or that either had a domicile in the State of Illinois for one whole year prior to the filing of the suit for divorce, nor - do we believe the so-called acts of cruelty complained of occurred. For the foregoing reasons the suit was wrongfully brought in this State and in holding otherwise the learned chancellor was in error.

Further, we do not believe that the proof made by plaintiff was such as preponderates in her favor nor has she proven the defendant guilty of extreme and repeated cruelty, as is required by the laws of this State.

" For the reasons herein given, the decree of the circuit court is hereby reversed.

Decree reversed.

Hall, P. J., and Hebel, J., concur.


text:
    David Coleman et al., Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 40,381.
    Heard in the third division of this court for the first district at the June term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Barnet Hopes, Corporation Counsel, for appellants; Martin H. Foss, Assistant Corporation Counsel, of counsel.
    Bullas, Goldsmith & Rivikin, of Chicago, for appellees; Samuel L. Bullas and Harry A. Goldsmith, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

An interlocutory order was entered in the superior court restraining the defendant city of Chicago, its mayor, commissioner of police, and their agents, from interfering with the operation and use by the plaintiffs in the city of Chicago of certain coin operated implements or devices called “Bowlette,” “Roll-a-Ball,” “Roll-a-Score,” “Skee Ball,” “Bowl-a-Ball,” “Bally-roll,” “Skee-roll,” “Bank-Roll” and “Rock-o-Ball,” and it is from that order that this appeal is taken.

It is claimed by the City that the keeping and nse of these implements or devices is prohibited by one ordinance, and the keeping for gain or profit from operation is made unlawful by another ordinance of the defendant City.

The complaint was filed by thirteen different plaintiffs, and after referring to the two ordinances which prohibit the use of the devices, states that the plaintiffs are engaged in the business of buying, operating, distributing and leasing the above mentioned devices in the city of Chicago and that plaintiffs have places of business and offices in the City where they receive and store the aforesaid machines and devices and where their various salesmen and other employees solicit various business men in the city of Chicago to grant them permission to lease the aforesaid machines and devices on a profit sharing basis.

The complaint further states that plaintiffs have invested large sums of money as capital for the acquisition of said machines and the maintenance of the aforesaid places of business, including the employment of men who are able to repair and service said machines; that until interfered with plaintiffs enjoyed large profits in their businesses and were developing good prospects for increased business and extension of their profits; that the machines are built along similar lines and in general consist of a framed enclosed horizontal board, or horizontally inclined board of various lengths, similar to a bowling alley, or alley and target area, being covered with carpet and containing at the farthest end an elevation or hump from which balls roll, striking the target area which contains a heavily corded hand woven net. The balls are operated by the individual player and after being deflected from said hump against the aforesaid net, enter the target area, consisting of various target circles made of heavy rubberized machine belting and numbered for the purpose of keeping a score which is electrically operated and shown by the indirect lighting score board in the rear. The game is played with 9 wooden balls, each about 3% inches in diameter which are obtained by the player inserting a coin in the coin chute located at the front of the device which causes the 9 balls to be released for the use of the player. The player takes one ball at a time in his hand and bowls the same individually along the surface of the machine and over the inclined portion of the surface, striking various portions of the aforesaid target area numbered as aforesaid.

The complaint further states that the ultimate location of the ball or balls in the target area is determined by the skill of the player, the chief determining factors being the direction, speed of the ball, and the method or methods of bowling employed by any player or players; that the machines are not operated for gaming purposes; that the amount paid for the use of the machine by the individual player is the nominal sum of 5 cents, and the sole purpose of the game is to create amusement for the player; that in the operation of the machines no wagers or bets are made or taken by the player or players or the proprietor or proprietors of the store where the machines are maintained; that no prize or prizes are given in connection with the operation of said machines; that in the operation of said machine the player employs practically every part of his body and muscle and that great physical benefits are derived from the operation; that the use and operation of the machines do not violate any of the statutes of the State of Illinois or the valid ordinances of the city of Chicago.

Descriptive circulars advertising plaintiffs’ devices are attached to the complaint as exhibits.

Plaintiff further alleges that the aforesaid machines are built along similar lines and the exact operation of each of said machines is more fully set forth and described in the exhibits.

Plaintiff further alleges that the said plaintiff Louis J. Shudow, doing business as Reliable Skee Ball Company, was placed under arrest by the police officers of the city of Chicago, Illinois, on account of operating and maintaining the aforesaid machines in his place of business in Chicago, Illinois, and the said plaintiff has been charged with the violation of section 1893A of the ordinances of the city of Chicago, Illinois; that said police officers have threatened to arrest all of the aforesaid plaintiffs and owners of stores in which said machines are being operated and have threatened to seize, confiscate and destroy all of the aforesaid machines and devices owned by the said plaintiffs and maintained in the aforesaid places of business; that as a result of the aforesaid acts and deeds of the aforesaid police officers, acting under the direction of the aforesaid defendants, the business of the aforesaid plaintiffs in the operation of said machines has been greatly prejudiced, hindered and destroyed, so that it has become almost impossible to place or operate the aforesaid machines in the city of Chicago, Illinois; that by reason of the foregoing illegal acts, threats and doings of said defendants, said plaintiffs have been deprived of profits that they otherwise would have derived from the operation of said machines.

No allegation is made as to what was the outcome of the arrest of the plaintiff Shudow, whether he was taken to court and, if so, the decision of the court.

The ordinance of which the plaintiffs complain and which they allege did not authorize the action of the police officers, reads as follows:

“Be it Ordained by the City Council of the City of Chicago:

“Section 1. Chapter 37 of the Revised Chicago Code of 1931 is hereby, amended, adding thereto a new article to be known as Article IV A, entitled ‘Bagatelle and Pigeon Hole,’ which shall read as follows:
“Article IV A.
“Bagatelle and Pigeon Hole.
‘ ‘ Section:
1949a. Games prohibited.
1949b. Penalty.
1949c. Seizure.
1949a. Games prohibited.) It shall be unlawful for any person to keep or use in any place of public resort within the city of Chicago any tables or implements for any game of bagatelle or pigeonhole.
“The term ‘Bagatelle or Pigeonhole,’ as used in this article, shall mean a game played with any number of balls or spheres upon a table or board having holes, pockets or cups into which such balls or spheres may drop or become lodged and having arches, pins, and springs, or any of them, to control, deflect or impede the direction or speed of the balls or spheres put in motion by the player, and shall include the modern variety of Bagatelle or Pigeonhole commonly known as pin games.
“The term ‘place of public resort’ as used in this article, shall mean any premises wherein any service or merchandise is offered for sale to the public or where tables or implements for playing the game of bagatelle or pigeonhole are kept for gain or profit, or any premises used as a club house or club rooms.
“1949b. Penalty.) Any person who shall violate the provisions of this article shall be fined not less than ten dollars nor more than two hundred dollars for each offense, and each day that the violation continues shall be regarded as constituting a distinct and separate offense.
“1949c. Seizure.) It is hereby made the duty of every policeman to seize any table or implement kept or used in violation of this article and, upon conviction of the keeper thereof, such table or implement so seized shall be destroyed. Any person obstructing or resisting any policeman in the performance of any act authorized by this section shall be fined not less than twenty-five dollars nor more than two hundred .dollars for each offense.
‘ ‘ Section 2. An ordinance providing for the licensing and regulation of automatic amusement, vending and weighing machines, passed by the city council on February 1, 1935, and appearing in the journal of the proceedings of the city council of that date at pages 3359-60 is hereby repealed.
“Section 3. This ordinance shall be in force and effect from and after its passage and due publication.”
“Be it Ordained lay the City Council of the City of Chicago:
“Section 1. That Article 1 of Chapter XXXVI of the Revised Chicago Code of 1931, as amended, be and the same hereby is further amended by adding a new section thereto to be known as 1893-A in the words and figures as follows:
“ ‘1893-A. Automatic amusement devices prohibited. It shall be unlawful for any person, firm or corporation to keep, or cause any of his or its agents or employees to keep, for gain or profit from operation, any amusement device the operation of which is governed or controlled by the deposit of a coin or token. ’
“Section 2. That Section 1893 of the Revised Chicago Code of 1931, as amended, be and the same hereby is further amended by striking out the period at the end of said section, as amended December 6,1933, and appearing in the left hand column of page 1216 of the Journal of the Proceedings of the City Council of the last mentioned date, and adding thereto the following : ‘excepting amusement devices the operation of which is governed or controlled by the deposit of a coin or token. ’
“Section 3. That section 1894 of the Eevised Chicago Code of 1931 be and the same hereby is amended by striking out the first sentence of said section and substituting therefor the following:
“ ‘No person, firm or corporation, either as owner, lessee, manager, officer or agent, shall give, conduct, produce, present or offer for gain or profit any of the classes of entertainments specified in Section 1893 of this ordinance without first having obtained a license therefor. ’
“Section 4. This ordinance shall be in force and effect from and after its passage and due publication. ’ ’

It is claimed first that the ordinances quoted are invalid and secondly, that they do not pertain to the kind of machines which are owned and operated by plaintiffs.

Without discussing at length the various points raised by counsel for plaintiff, which we do not consider controlling, we call attention to Levins v. City of Chicago, 296 Ill. App. 645 (Abst.). The Levins case was very similar to the instant case as the machines involved were almost identical, and the ordinances involved were the same. In that case the action of the City in endeavoring to enforce the ordinance was challenged as in this case and while all the language used in the opinion to which we have just referred is not applicable to the case at bar, we quote from that portion of the opinion, which we think in point, which reads: “While it may be that the operation of the two devices may stimulate and encourage gambling and induce children and weakminded adults to gamble and squander their money, in which view, obviously, the ordinance as well as the criminal laws would be violated, yet we think any facts bearing on such questions should be left to a hearing of the case on its merits. Police and officials and other city officials ought not to be enjoined from enforcing city ordinances except in a clear case.

“We think the order appealed from was improvidently entered and it is reversed. ’ ’

For the reasons herein given, the order of the superior court granting a temporary injunction as above set forth is hereby reversed.

Order reversed.

Hall, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Riess

text:
    American State Bank of Bloomington, Executor of Last Will and Testament of Edith Neville, Deceased, Appellant, v. National Life Insurance Company, Appellee.
    Gen. No. 9,126.

      Heard in this court at the April term, 1938.
    Opinion filed October 14, 1938.
    Hal M. Stone and Costigan & Wollrab, both of Bloomington, for appellant.
    W. K. Bracken and Bracken, Radliff, Livingston & Murphy, both of Bloomington, for appellee; George B. Young, of Montpelier, Vermont, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Plaintiff, American State Bank of Bloomington, executor of the last will and testament of Edith Neville, deceased, has appealed from a decree of the circuit court of McLean county dismissing its amended bill of complaint against the National Life Insurance Company of Vermont, a corporation, for want of equity. The plaintiff sought to set aside four certain nonrefunding annuity contracts issued at intervals by the defendant company to the annuitant, Edith Neville, during her lifetime, which provided for the payment to her of monthly or quarterly instalments terminating at her death. Plaintiff further sought an accounting and recovery as to the remainder of the single premiums which had been paid by the annuitant to the company at the time of purchasing the annuity contracts in question.

The original complaint alleged that the defendant company is engaged in the business of issuing and selling life insurance policies and annuity contracts; that on September 16, 1935, the plaintiff’s testate decedent, Edith Neville, purchased an annuity contract from the defendant company for which she paid a single premium of $1,000, under the provisions of which the defendant promised to pay her $14.50 quarterly during her lifetime; that on January 30, 1936, she again purchased a similar contract for which she paid $1,000, under the terms of which the defendant promised to pay her $13.78 quarterly during her lifetime; that on May 14, 1936, Miss Neville died, after having received two quarterly payments aggregating $29.20 under the first and one payment of $13.78 under the terms of the second annuity contract.

To this complaint, consisting of two counts; defendant interposed a motion to dismiss which was sustained by the court and a written opinion was filed therein. By leave of court, the plaintiff then filed an amended complaint and in added counts, further alleged that Edith Neville had previously purchased from the defendant company two additional annuity contracts dated respectively May 7, 1935, and July 28, 1935, for each of which she had paid the defendant appellee $10,000'. Under the former of these last mentioned contracts, beginning with June 17, 1935, the company had paid to Miss Neville 11 monthly payments of $50.60 each, and under the latter, 10 monthly payments of $50.70 each, making aggregate payments to her during her lifetime of $1,106.58 in compliance with the provisions of the four annuity contracts in question. The defendant’s motion to dismiss was then extended to the amended complaint and the added counts thereof and was sustained by the court.

Copies of the four contracts, which were neither long nor involved, were set forth in the complaint and differed only as to dates and amounts. The provisions of the first mentioned contract read as follows:

“Number 645309

“Amount of Each Payment Fourteen 60/100 dollars.

“Payable Quarterly beginning December 16, 1935, and terminating with the last payment preceding the death of the annuitant!

“To Edith Neville, Normal, Illinois, Payee.

“The Annuitant: Edith Neville, Normal, Illinois.

“Purchase Price: One Thousand dollars.

‘ ‘ This Annuity is granted on the declaration that the annuitant was born August 29, 1885, but if such declaration shall be found incorrect, the amount payable under this contract' shall be such as the payment to the Company would have purchased at the true age; any overpayment by the Company with interest thereon at five per cent per annum shall be charged against payments to be made thereafter.

‘ ‘ The Company shall be given at each payment date satisfactory evidence that the Annuitant is then alive.

“The Reserve Basis for this contract shall be the Combined Annuity Table with interest at 4%.

“Executed at Montpelier, Vermont, this 16th day of September, 1935.”

The first four counts of the complaint, as amended, allege that at the time the contracts were made, Miss Neville was aged fifty years, was “afflicted with incurable maladies” and that this fact was known to the defendant at the time the respective contracts were issued; that the payments therefor were based on an accepted annuity table under which Miss Neville’s life expectancy was considered to be 26 years, although it was in fact less than 12 months, and that she died within one year.

In the four remaining additional counts of the amended complaint, plaintiff pleads in the alternative that neither the defendant nor the plaintiff’s testate knew of the fact that she was not in a reasonably sound condition of health, nor did they or either of them know that her life expectancy, as determined by the experience of nationally known insurance companies and as determined by standard expectancy tables and upon which the purchase price of such annuities was based, was of so short a duration, nor did either of them know at the time of mailing said contracts that it was and would be impossible that said annuitant should ever receive a fair return for the money invested.

This suit is based on the contention that the consideration to Miss Neville under each of the four contracts was so grossly inadequate as to “shock the conscience ’ ’ and to constitute fraud as a matter of law and that the writing of the annuities in question based on a normal expectancy life table, without reference to the actual expectancy of the individual purchaser, was contrary to public policy. To this is added in the last four counts the further alternative claim that there was a mutual mistake of fact when the contract was entered into by the parties as to the condition of health and expectancy of life of the annuitant which was unknown to both parties and which is an alleged basis for rescission of the annuity contracts.

The defendant’s motion to dismiss the complaint alleged in substance that the complaint fails to charge that Edith Neville was mentally incompetent to any degree; fails to charge fraud, deceit, misrepresentation, overreaching, imposition or misconduct upon the part of anyone which induced or contributed to the purchase of the annuities in question; that it appears that annuitant was entirely competent and understood the terms and conditions of and for the contracts in question ; knew what she was purchasing and received what she wanted and intended to buy; that she was satisfied with the contracts and ratified them in all respects by accepting payments thereunder and according to their terms until the time of her death; that the complaint set forth no allegation of facts as a basis for the conclusion of the pleader that she ‘ ‘was afflicted with incurable maladies”; that none are named, set forth or described in the pleadings; that the statement that her life expectancy would not exceed 12 months is a mere conclusion of the pleader and that no facts whatever are set forth upon which to base the same; that no facts are set forth indicating the contracts to have been fraudulent or against public policy; that the complaint does not allege or state any legal or equitable cause of action; and that the added counts charging that neither party knew of her condition or of the period of her expectancy does not set forth added facts or grounds which state a cause of action.

In passing upon the sufficiency of the amended complaint, it must be borne in mind that motions to dismiss in the nature of demurrers admit facts well pleaded but do not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Rishel v. Pacific Mut. Life Ins. Co. of Calif., 78 F. (2d) 881; Spielman Motor Sales Co. v. Dodge, 295 U. S. 89; Knaus v. Chicago Title & Trust Co., 365 Ill. 588, 593, 7 N. E. (2d) 298; Harrigan v. County of Peoria, 262 Ill. 36, 104 N. E. 172.

“General allegations that defendants’ conduct was fraudulent or that the contracts were procured by duress, or that a fiduciary relationship existed, etc., are not admitted by the demurrers. The question is: Do the facts alleged support such conclusions ? Rishel v. Pacific Mut. Life Ins. Co. of Calif., supra.

Appellant concludes that the expectation term of life of the deceased was less than one year. From what facts or upon what specific table does this conclusion rest? We would be reluctant to assume the existence of any table issued by an insurance company in which the life expectancy of applicants for either insurance or annuity contracts at the attained age of 50 years is given as less than 12 months. Certainly, no such table is set out in the complaint as an exhibit or otherwise, and no specific facts are set forth from which this conclusion of the pleader would follow. Obviously, the recital that one is “afflicted with incurable maladies” or in bad health, without any description of the nature, kind or extent of such ailment does not plead facts that would classify an applicant as falling under any specific table of expectancy. It is a matter of common knowledge that many persons who do not enjoy good health or who suffer from “incurable maladies” may and do live out a normal expectation period of life. The conclusion as to her actual expectancy cannot be based upon the fact that she did not live out a normal expectation period of life. As is said in Rishel v. Pacific Mut. Life Ins. Co. of Calif., supra, “Annuity contracts could not be written by financially responsible companies if a recovery of the premuim pro tanto could be had upon proof after death of some impairment of the organs when the contracts were written.” The court in that case, as herein, was speaking of non-refunding annuity contracts.

The validity of each contract must be determined as of the time it was written. (Rinn v. New York Life Ins. Co., 89 F. (2d) 924.) The allegations showing that the annuitant collected a limited number of payments under each of the annuity contracts and that she then departed this life does not state facts which tend to support the conclusion that at the time of entering into the contract she was “afflicted with incurable maladies,” nor that the consideration was either unconscionable or grossly inadequate. Nothing is alleged in the complaint as to the nature of her ailment or as to the cause of her death, which might, so far as appears from the complaint, have as well been due to accident or casualty as to bodily disease or impairment.

It is further alleged in the first four counts that the defendant knew that the annuitant was not in sound health and that her tenure of life was uncertain, but it is not alleged that the annuitant was not equally aware of her alleged condition, while in the last four counts, it is alternatively alleged that neither party knew of these conditions. It is nowhere alleged that the defendant in any manner undertook to mislead, conceal from, misrepresent or deceive the annuitant as to her life expectancy or physical condition. Moreover, it will be noted that there was a considerable lapse of time between the dates when the several contracts were written and entered into by the annuitant, in which she may have ascertained any of these facts had she been dissatisfied or disposed to do so, and that thereafter she continued to receive and accept the annuity payments under all of the contracts until the time of her death. It is not alleged that between these dates and during all of this period ivhile she so continued to accept the annuities, she did not know or was in anywise unaware of her alleged “incurable maladies” or of her alleged period of expectancy or that she was in any respect dissatisfied with or sought rescission of any of the contracts in question.

It further appears that the premium was the usual and customary rate payable by persons of the annuitant’s attained age. The consideration of annuity contracts written on standard mortality tables is prima facie adequate and fair. (Rishel v. Pacific Mut. Life Ins. Co., supra.) Whether or not a medical examination was had before the contracts were issued does not appear from the pleadings. If the annuitant had desired a medical examination before contracting, nothing* prevented her from having such examination made. While a medical examination is usually had before the issuance of life insurance policies, which are the reverse of annuity contracts, tbe life insurance policy is valid even if written without a medical examination, and many are so written. As stated by the court in the Bishel case, supra: “Plaintiff’s contention comes to this, that an insurance company is bound to inquire, by medical examination or otherwise, into the health of an applicant for an annuity. Except where a fiduciary relationship exists, no statute or no case has been cited so holding. ... In annuities, the annuitant is the one who is interested in knowing* that his health is normal before entering* into the contract; he knows or can ascertain the state of his own health, and there is no reason why an insurance company should require him to ascertain the condition of his own health before contracting with him. If the annuitant, for his own protection, wants a medical examination before contracting, nothing prevents him having one. These contracts cannot be stricken down because defendants did not require Mrs. Tew to take examinations for her own protection. The argument is unsound, and the analogy breaks down, for another reason: A life insurance policy is valid even if written without a medical examination, as many of them are. ’ ’

The primary purpose and effect of talcing the annuity contracts was to guarantee the annuitant the benefit of a fixed income during the remainder of her life, whether she was or was not in good health, and whether or not a medical examination and classification was first made. To hold otherwise would virtually deny this form of investment to many people for whom it might prove a practical and helpful relief from business cares. Annuity contracts issued by insurance companies are issued upon a basis that will establish a reserve necessary to meet all contracts as they mature. This fact was recognized by the parties and set forth in the contracts in the following language: “The Reserve Basis for this contract shall be the Combined Annuity Table with interest at 4%.” This table does not refer to nor undertake to fix the premium rates, but does establish the reserve basis.

Whether an annuitant of sound mind and acting under no legal disability or restraint purchases or desires a nonrefunding form of annuity contract or one providing for the return in lesser amounts of a definite number of additional instalments after her death is entirely a matter of contract and freedom of choice between the parties, in the absence of allegations showing fraud, lack of mental capacity or that she was improperly influenced, deceived or mislead by the defendant whereby her well considered judgment was disturbed or overcome.

Concerning the validity of annuity contracts in general, plaintiff seems to concede, and the Supreme Court of this State has held that “there is nothing in such contracts opposed to any principle of law or public policy.” Fidelity Inv. Ass’n v. Emmerson, 318 Ill. 548, 560, 149 N. E. 530. The ordinary form of an annuity contract, whereby, in consideration of a single payment or a series of payments running through a number of years, a person or corporation agrees to pay at a fixed time a definite sum of money or pay a definite sum in fixed instalments at certain times is not opposed to any principle of law or public policy. Courts cannot determine the wisdom of entering into the contract by any person or class of persons nor the amount to be returned to the investor under the contract in the absence of fraud or other legal or equitable grounds rendering the same void or voidable. Fidelity Inv. Ass’n v. Emmerson, supra; Curtis v. New York Life Ins. Co., 217 Mass. 47, 104 N. E. 553; Greevy v. Massachusetts Mut. Life Ins. Co., 128 Neb. 586, 259 N. W. 656; Mutual Life Ins. Co. of N. Y. v. Smith, 106 C. C. A. 593, 184 Fed. 1, 33 L. R. A. (N. S.) 439.

In the case of Curtis v. New York Life Ins. Co., supra, it is said that an annuity contract, not being a contract of insurance, was not within the insurance law, and not having been prohibited by any law of the State was valid and enforceable. Similarly, we know of no law in the State of Illinois prohibiting annuity contracts, and their validity has been recognized by both the statutes and Supreme Court of this State. (Fidelity Inv. Ass’n v. Emmerson, supra.) But it is earnestly contended by the appellant that while there is nothing illegal or against public policy in the writing of annuity contracts in general, under the allegations of the complaint herein the issuance of the particular contracts were against public policy. We cannot hold that facts are stated from which such a conclusion of the pleader would follow.

The public policy of a State is to be found embodied in its constitution and its statutes, and when these are silent on the subject, then in the decisions of its courts. People v. Wiersema State Bank, 361 Ill. 75, 86, 197 N. E. 537; Illinois Bankers Life Ass’n v. Collins, 341 Ill. 548, 173 N. E. 465.

Appellant states his position as follows: “The contention is not that all annuity contracts are contrary to public policy. It is contended that non-refunding annuity contracts, the consideration for which is based upon normal expectancy issued without any regard to what the actual expectancy of the annuitant as determined by experience and impairment tables, are contrary to public policy.” This contention, based upon the conclusions of the pleader, would by judicial fiat, require medical examination and classification in a large class of annuity contracts now in general use and effect by and between a great number of legal reserve insurance companies and contract holders; matters, grave and far-reaching in effect, that would seem to fall more properly within the field of legislative regulation than of judicial construction.

Since the argument of counsel alleging gross lack of consideration and that the contracts as written were opposed to public policy were so interwoven as to lead this court to discuss the applicability of both principles, it is nevertheless true, as stated by appellee, that the appellant has failed in his assignment of errors to assign any error relied upon for reversal on the ground that the contracts as written were contrary to public policy. Errors relied upon for reversal must be assigned. Farmers State Bank v. Meyers, 282 Ill. App. 549. It is provided by Buie 9 of this court as to briefs that “the concluding' subdivision of the statement of the case shall be a brief statement of errors or cross errors relied upon for a reversal.”

Appellant further contends that “where the consideration for a contract is so grossly inadequate so as to shock the conscience ... a court of equity will set it aside; that in such cases fraud is conclusively presumed to exist. ’ ’ It must be kept in mind, however, that it is a well recognized general principle of law in this State that fraud is never presumed, that it must always be proved and sufficient facts must be pleaded from which such conclusions will logically follow. Garrett v. Garrett, 343 Ill. 577, 580, 175 N. E. 772; Byerly v. Byerly, 363 Ill. 517, 524, 2 N. E. (2d) 898; American Hoist & Derrick Co. v. Hall, 208 Ill. 597, 70 N. E. 581; Woodford County Nat. Bank v. Conklin, 292 Ill. App. 53, 10 N. E. (2d) 864.

Much of what has been said herein applies with equal force to the appellant’s contention that the consideration received by the annuitant from the company was so grossly inadequate as to conclusively establish fraud as a matter of law. From the allegations of fact set forth in the complaint we cannot so hold. Nor do we find that the facts set forth would justify relief by rescinding the contracts on the ground of .mutual mistake, which latter assignment is not stressed in argument by the appellant in his brief.

The Rishel case, supra (Sept. 1935) seems to be the leading modern authority wherein annuity cases, both early and recent, are collated, summarized and dis-^ tinguished, and from which both counsel have cited freely. Concerning this case, it is said'in Rinn v. New York Life Ins. Co., supra, that the opinion of the court in the Bishel case “so aptly applies that we would unnecessarily and improperly add to the volume of reported judicial opinions if we were to restate the reasons and conclusions of that case. We accept that opinion as embodying the correct statement of the applicable law. ’ ’ In the case at bar, we also deem the Rishel case to be more nearly parallel in facts and controlling* in principle than any of the other cases cited by counsel herein.

It is said in the Rishel case that “Although not in itself determinative, it is worthy of note that in each of the American cases, the contract was based on published tables of average lives, while that was not so in the English cases cited. The consideration of annuity contracts written on standard mortality tables is prima facie adequate and fair.”

In that case the plaintiff sought rescission and recovery of the sums paid by way of single premiums for six annuity contracts. A demurrer was interposed and sustained, from which the appeal was taken. The facts are summarized in the opinion as follows: “The Health of the Annuitant: — It is alleged that Mrs. Tew was sixty years old past in July, 1928, when she applied for the first annuity; that she was of weak and impaired mind, inexperienced in business, in feeble health, suffering from dropsy, a weak heart, a diseased stomach and abdomen, that her illness was permanent and she had no reasonable chance to recover; that her expectancy was less than seven years, instead of 14 years, the average expectancy at the attained age. . . . On the whole case: — Considered ensemble instead of separately, as was done in Allore v. Jewell, supra (94 U. S. 506, 510, 24 L. Ed. 260) do the complaints state a case justifying the interposition of equity? In 1928 Mrs. Tew, a widow suffering* from ailments not uncommon among the elderly, paid $28,321.20 for an annuity contract, from which she received a regular income of $200 a month. Apparently she thought well of the idea, and in 1930 and 1931 she invested $65,000 more in similar contracts with the same and three other companies. Her reasons, we do not know. Perhaps she wanted a larger income than the returns available from safe investments; perhaps she wanted to escape the responsibility of investment. In any event, she entered into the contracts with nationally known companies on their regular rates. "Whether she took the precaution, to be physically examined, whether she took independent advice, we do not know. She died shortly thereafter, but the cause of her death is not related. No fraud, no misrepresentation, no duress, is charged. Plaintiff’s case comes down to the points that an insurance company bears a fiduciary relationship to applicants for contracts, and that a company must inquire, at its peril, into the health of an applicant for an annuity. We are not in accord with that view of the law and are cited to no authority so holding. On the whole case, therefore, we see no reason for overturning these contracts, fairly made, because Mrs. Tew unfortunately died before she expected.”

It may well be conceded that cases may arise wherein the facts and allegations are sufficient to warrant such relief. As stated in the Rishel case, “if the consideration is so grossly inadequate as to repel the conscience of the Chancellor, equity may refuse its aid in enforcement.” Aside from the old English cases cited and summarized in the Rishel case (Heathcote v. Paignon, 2 Br. Ch. 167, 29 Eng. Rep. 96; Gwynne v. Heaton, 1 Br. Ch. 1, 28 Eng. Rep. 949), the appellant has most freely quoted from Mangold v. Bacon, 237 Mo. 496, 141 S. W. 650, in which a sheriff’s deed was set aside on the sole ground of a consideration so grossly inadequate as to shock the conscience. These and other authorities cited by the appellant, we do not deem to be applicable or controlling under the facts and allegations of the complaint herein.

The case of Rinn v. New York Life Ins. Co., supra, was a suit brought in the United States District Court in Illinois by the administrator of an annuitant’s estate, seeking recovery of the balance of the premiums not consumed in payments to annuitant during his lifetime. It was there said that: “Appellee, on May 21, 1930, issued to appellant’s intestate an annuity policy in consideration of a single premium payment of $48,794.40.' It paid insured $300 per month from June 14,1930, until April 14,1934, or a total of $14,100. This left a difference of $34,694.40 between the amount of the premium received and the annuities paid. The insured’s administrator, the appellant, seeks to recover this amount with interest. The District Court (U. S.) sustained a motion to dismiss the causes of action in equity and at law. . . . The conscionableness of an insurance contract is to be determined as of the date of its execution. Insured was 53 at the time of the issuance of the policy, and had he lived 14 years ... he would have received sums equal to the premium by him paid. According to the mortality tables he had a life’s expectancy of 19% years. The judgment is affirmed. ’ ’

In the case of Coyne v. Pacific Mut. Life Ins. Co., 8 Cal. App. (2d) 104, 47 P. (2d) 1079 (June 26, 1935), a nonrefunding life annuity contract was issued on May 9, 1932, for a single premium of $10,000, the annuitant to receive monthly payments of $90.10. The death of the annuitant by suicide occurred on May 26, 1932, before the first payment became due under the annuity. "While a total failure and not gross inadequacy of consideration was charged in that case, we deem the reasoning of the court as to facts alleged to be pertinent herein. The court said: “It is next urged that there was a total failure of consideration for this contract, since the intestate died before any payments thereunder became due. . . . Annuity contracts of this nature are common and have been frequently upheld and approved by the courts. The value and purpose of such a contract are well summarized in Hult v. Home Life Insurance Co., 213 Iowa 890, 240 N. W. 218, 227, where the court said: ‘. . . Experience has shown, particularly in the last few years, that even those who consider themselves skilled in investments have found it impossible to recover reasonable rates of interest on their investments, and equally impossible to save much, if any, of the principal. With her annuity contracts in her possession, the deceased was relieved of all worry about interest, and likewise of worry about her original investment. Both were secured to her for the entire period of her life, whatever it might prove to be. ’ The contention that there was no consideration for this contract because the death of the annuitant occurred before any payments to him became due is entirely without merit. The respondent had agreed to pay $90.10 to him each month so long as he lived, and this agreement constituted an ample consideration. The fact that death occurred before any such payments became due does not change the situation and the intestate ran the risk of such an event just as the respondent ran the risk that the contract might turn out to be unprofitable to it in the event the other party thereto outlived his normal expectancy.”

In the case of Cahill v. Maryland Life Ins. Co., 90 Md. 333, 45 Atl. 180, 47 L. R. A. 614, the court (p. 616) said: “It is conceded that the annuity was promptly paid during her life, and, as was suggested at bar if she had lived sixteen years to enjoy the annuity, instead of only sixteen months, it is not likely this suit would have been brought.”

While the trend of the law in general is toward a kinder and more liberal application of its principles, it is equally well recognized that there exists a need for stability and compliance with reasonable and well established practices, particularly in a field which so closely and vitally affects the interests of so many people as does that of annuities and insurance contracts.

In the absence of any allegations that the plaintiff’s decedent was in any way incompetent, or that any actual fraud, misrepresentation or concealment was practiced on her, or of any fiduciary relationship between the parties, or that the defendant had any knowledge of her physical condition which she herself did not or could not have had if she had so desired either before or after purchasing the contracts, their silence as to the nature of her infirmities or the cause of her death, together with the construction which the courts have placed on annuity contracts and the duties and obligations of the companies with reference thereto, we are lead to affirm the conclusion of the trial court that the complaint did not state a cause of action. We have further examined and considered all other errors assigned, and we find that no reversible error appears in the record.

The decree of the lower court will be affirmed.

Decree affirmed.


author: Mr. Justice Hayes

text:
    Louis L. Scharf, Appellee, v. G. W. Solomon, Appellant.
    Gen. No. 9,120.

      Heard in this court at the April term, 1938.
    Opinion filed October 14, 1938.
    Barber & Barber, of Springfield, for appellant.
    Homer D. McLaren, of Springfield, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

Hereafter in this opinion Louis L. Seharf, plaintiff appellee, will be referred to as plaintiff, and Gr. W. Solomon, defendant appellant, will be referred to as defendant.

This is an appeal from a judgment for one thousand two hundred and thirty ($1,230) dollars, against Gr. W. Solomon, defendant, recovered by Louis L. Seharf, plaintiff, in an action for money had and received, for failure to invest one thousand dollars in accordance with the provision of a receipt delivered by the defendant to the plaintiff, at the time of said payment. This case was tried by the court without a jury.

The record discloses, that in 1932, the defendant, with two of his brothers and other business associates, in the Panther Creek Mines Inc., of which he was an officer, were promoting- the organization of a company for the manufacture of a material known as vermiculite, to be used for insulating purposes.

On June 7, 1932, the plaintiff, gave his check to the defendant, for one thousand dollars, and received a receipt, signed by defendant, for the one thousand dollars par value, which receipt recited that it was for ten (10) shares of a total one thousand (1,000) shares, of one hundred ($100) dollar par value stock, to be issued in the Smith Insulating Manufacturing Company, to be formed for the manufacture of vermiculite insulating-block, brick and pipe covering, and the stock certificate would be issued as soon as the company was formed. At that time plaintiff was in the employ of the Illinois Watch Company at Springfield, and the defendant was the vice-president of the Panther Creek Mines.

It appears from the record, that all the officers and office employees of the Panther Creek Mines put some money in the proposed vermiculite company, and the defendant told the plaintiff that he should have some stock in this proposed company. Shortly thereafter, the plaintiff gave his check for one thousand dollars to the defendant and took the receipt in question. In April, 1933, the plaintiff went to work for the Panther Creek Mines, as collector and solicitor for them, and afterwards as purchasing agent, and continued to work for them until April, 1937, at which time he was let out, — the mine company desiring to cut expenses.

The Smith Insulating Manufacturing Company was not formed. Defendant contends that in lieu of the Smith Manufacturing Company, the International Vermiculite Company was formed, on April 18, 1933. The record discloses that the capital structure of the International Vermiculite Company consisted of seven thousand (7,000) shares of non par value, and six hundred (600) shares of one hundred ($100) dollar par value, preferred stock, which was different from the specification set out in the receipt. The receipt called for ten (10) shares of one hundred ($100) dollar, while the stock tendered was non par value, and was subject to a preferred stock issue, with cumulative dividends at the rate of seven (7) per cent per annum, and in the event of liquidation or dissolution, preferred both as to assets and earnings. Shortly after, plaintiff was discharged by the Panther Creek Mines, through his attorney, he made a demand on the defendant for the return of the one thousand dollars, and within a day or two after that, he files this suit. Up to that time no stock certificate had been delivered to him. The first time the defendant tendered the stock certificate was during the trial of this cause in the circuit court. The certificate was then for ten (10) shares of common stock, no par, of the International Yermiculite Company, dated April 24, 1937.

Defendant contends that the finding of the circuit court was against the weight of the evidence, and should be set aside. He set up as a defense, in his pleading below, that plaintiff’s silence and failure to repudiate for more than four years constitutes a ratification of the investment of one thousand dollars in the International Yermiculite Company, as it was created, and that plaintiff waived the difference in the capitalization of the proposed company as set out in the receipt, and the company as it was actually formed.

Before plaintiff could ratify the act of the defendant in investing his money in the common no par value stock of the International Yermiculite Company, he must have had knowledge of such fact, and the burden is upon the defendant in this case to introduce evidence proving such fact. 3 C. J. S., Agency, Sec. 319 (2).

Ratification is presumed to have been with knowledge of the facts; but it cannot be inferred in the face of a denial by the principal of all knowledge of the acts in question. 3 C. J. S., Agency, Sec. 319 (1).

A party alleging, asserting, or relying on a ratification of the unauthorized act of an agent has the burden of proving it. To sustain the burden of proof, the party on whom it rests must show that the ratification was made under such circumstances as to be binding on the principal; he must show that the principal intended to ratify and, at the time of ratification, had full knowledge of all the material facts connected with the transaction. 3 C. J. S., Agency, Sec. 319 (2).

In the case of the Farmers Nat. Bank v. Trautwein, 228 Ill. App. 356, it is said: It is a well settled rule that knowledge of the terms and conditions of an unauthorized contract entered into by an agent is not to be presumed from the fact that the principal had a reasonable opportunity to acquire such knowledge. A principal’s ratification of an agent’s unauthorized act must be clearly shown, either directly or impliedly, from clear and unequivocal circumstances. In order to bind a principal by ratification, assent or acquiescence in prior acts of his agent in excess of authority actually given, a knowledge of the material facts must be brought home to him. He must have been in possession of all of the facts, and must have acted in the light of such knowledge. 21 R. C. L. 928; Coleman v. Connolly, 242 Ill. 574, 583; Cadwell v. Meek, 17 Ill. 220, 227.

As said by Justice Story, in the case of Owings v. Hull, 9 Peters 607: “No doctrine is better settled, both upon principle and authority, than this: — that the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.”

It is clear from this record, that the agent in this case did not carry out the undertaking set out in the receipt, but his answer to this is that the plaintiff knew of the changes and acquiesced in them. The decisive factor in the case is whether or not plaintiff had full knowledge of the material changes made; when the International Vermiculite Company was formed; or was given notice thereof, any time during the four succeeding years prior to his demand for the return of his one thousand dollars. Examination of the evidence on this point discloses that the defendant, who testified as a witness in the case, stated that he never discussed the change of the capital structure with the plaintiff; that he did not take his employees into his confidence in regard to the formation of the company. Nowhere in his evidence is there anything* to show that the plaintiff was given notice of the difference in the capital structure from that set out in the receipt. He stated that he had had conversations with the plaintiff in reference to the International Vermiculite Company, the substance of which was that plaintiff was inquiring* how “our” vermiculite was getting along. There were three other employees of the defendant, and the president of the International Vermiculite Company, who testified, and an analysis of their testimony is similar to that of Mr. Solomon’s; — that plaintiff, on a number of occasions, visited the plant of the International Vermiculite Company, at Springfield, and would inquire as to how the business was, and looked around the plant, and on one occasion carried away some of the product manufactured there; but nowhere in all the testimony offered by defendant is there anything that even tends to establish that plaintiff had knowledge of the capital structure of this company. It does appear, however, both from his own testimony, and that of the witnesses for the defense, that he knew of the change in name from the Smith Insulating* Manufacturing Company to the International Vermiculite Company. Both the defendant, and the president of the International Vermiculite Company, admit they never sent him any notices of a stockholder’s meeting, neither do they claim to have ever notified him as to what the capital structure of the company was. Defendant gives as an excuse why the stock certificate was not issued sooner, that the secretary was dilatory. He further states that it was in April, 1936, that he forwarded to the secretary of the corporation, a list of the subscribers of the stock.

Defendant contends in their brief, that under the circumstances the law does not permit plaintiff to speculate upon the result, over a course of more than four years, and ratify or repudiate, depending upon the financial outcome, when he could have ascertained the change. It can be said with equal force, under the circumstances, that the law will not permit defendant to speculate. He didn’t let go of the stock certificate, which it was his duty to furnish, within a reasonable time. With equal propriety, it can be said that defendant was waiting to see if the venture was a big money-earner, and if so, return the one thousand dollars, and if it failed, to tender the stock certificate.

The responsibility for definite action was on the agent in the first instance. The principal had put up his money for a specific purpose, and the agent left himself in a very vulnerable position, when he appropriated the money to another and different proposition, and tendered no stock certificate or gave no definite notice to plaintiff. Defendant further contends in his argument, that the close association of plaintiff and defendant, together with the other employees over so long a period, gave an ideal opportunity for repudiation. It is significant that a few months after plaintiff put up his one thousand dollars, defendant gave him a job. Plaintiff was not in the same position to make pertinent inquiry of his employer, as he would be were he dealing with a strang’er at arm’s length. This is more apparent from the fact that almost instantly on being discharged by defendant, he demanded his one thousand dollars.

Although there is considerable in the record that might cause a keen business man to take action long before plaintiff did, we cannot say, taking the record as a whole, that the trial judge was not warranted in the conclusions that he reached, and the finding that he made.

The only remaining question in the case is the allowance of interest in the sum of two hundred and thirty ($230) dollars, which the trial court computed from April 18, 1933, being the date of the incorporation of the International Vermiculite Company. There is nothing in the record to show the date on which the thousand dollars, paid by the plaintiff to the defendant, was turned over by the defendant to the International Vermiculite Company. No right to interest existed at common law, and it is only allowable by virtue of statute. Totten v. Totten, 294 Ill. 70.

The first and only time plaintiff made any demand on the defendant, for the return of the one thousand dollars, was on April 19, 1937, just prior to filing the suit. The plaintiff did not fix any definite time, at the time he gave the defendant the one thousand dollars, when the transaction should be completed. This was left open by both parties. There is nothing in the record to show the defendant ever used the money for his own personal use. The most that can be said against him, is that he applied it to a different undertaking than that designated by his principal; without giving full knowledge to the principal of the circumstances surrounding the case, and the loose way that both plaintiff and defendant transacted the business makes it fall in that classification of cases where a demand should first be made before interest is assessable.

In the case of Brennan v. Gallagher, 199 Ill. 207, it is said: The contract being only ultra vires, and not malum in se or malum prohibitum, and the corporation having received money under it which in equity and good conscience belongs to appellee and which it ought to pay over to him, it is liable in an action for money had and received, with interest at the legal rate from demand made.

It is very generally held that in the absence of a special agreement as to interest, or as to the time the debt is to be paid, interest should be allowed on such debt only from the time the principal is demanded, or in the absence of prior demand, from commencement of suit. 33 Corpus Juris, 233.

The trial court erred in assessing interest from April 18, 1933. The interest should have been computed from April 19, 1937, being the date of the demand. If the plaintiff wants to remit the amount of one hundred fifty-four dollars and seventeen cents ($154.17) within 20 days from the entry of this opinion, this court will give him a judgment for the one thousand seventy-five dollars and eighty-three cents ($1,075.83). If not, the court will reverse the case, with directions to the lower court to enter a judgment in the sum of one thousand ($1,000) dollars, with interest from April 19, 1937.

Affirmed in part, reversed in part, with directions.