text:
    City of Zion, Appellee, v. Christian Catholic Church in Zion and Wilbur Glenn Voliva, Appellants.
    Gen. No. 9,088.

      Opinion filed September 3, 1936.
    Rehearing denied October 6, 1936.
    J. A. Miller, of Waukegan, and Joseph L. Bishop, of Zion, for appellants.
    L. Eric Carey, of Zion, and Heth & Lister, of Chicago, for appellee; William Lister, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This was an action by appellee to cancel and have declared void a certain lease upon two lots located in the city of Zion, said lease having been made by the city council to Wilbur Glenn Voliva, as general overseer of the Christian Catholic Church. Appellee city was under the commission form of government as provided by Article XIII of the Cities and Villages Act, Ill. State Bar Stats. 1935, ch. 24, ¶ 323 et seq. (ch. 24, sec. 265, et seq., Smith-Hurd 1935).

It appears by the averments of appellee’s complaint and amended complaint that the city was at the time of the making of the lease in question under the commission form of government; that the lease was proposed at the last meeting of the city council, held on April 10, 1935, and consummated at the same meeting. Appellee urges that section 33 of the act, Ill. State Bar Stats. 1935, ch. 24, ¶ 356 (sec. 298, ch. 24, Smith-Hurd 1935), provides that every ordinance or resolution . . . making or authorizing the making of any contract or granting any franchise, right or license to occupy or use the . . . public property or public premises in the city or village for any purpose, shall remain on file with the city or village clerk for public inspection, complete in form in which it is finally passed, at least one week before the final passage or adoption thereof, and that by virtue of such section the action of the city council in this case was unauthorized by law and the lease void.

The complaint as filed and as amended charges that the-meeting at which the proposed lease was submitted and accepted by the contracting parties was the last meeting of the city council as then constituted; that a city election had previously been held on April 2, 1935, at which other persons had been elected as mayor and commissioners; that such newly-constituted city council as soon as it assumed active duties, adopted a resolution directing the mayor to prosecute suit to cancel the lease and have declared void the action of the former council in its attempt to make same. Many other allegations are made in the complaint regarding the relationship between appellant Voliva and the members of the former council, but it is not necessary to take these into consideration in the disposition of this case.

Answers and amended answers were filed by appellants, which upon motion were stricken. Appellants failing to further plead within the rule fixed, were defaulted, and decree entered as prayed, declaring the lease described in the complaint to be null and void and that the same should be removed as a cloud upon the title to such lots. Appellants prosecute this appeal therefrom.

Appellants by their answers admitted the making of the lease agreement on April 10, 1935, as set out in the complaint, denying however that the same was procured by collusion and fraud. It therefore appears from this record that at the final meeting of the city council prior to the new council assuming office, the proposed form of lease agreement was presented by appellants and acted upon by the council contrary to sec. 33 of the act. This section was before the Supreme Court in the case of City of Ottawa v. Hulse, 317 Ill. 276. It was there held that the provision of said section requiring any such contract, etc., to remain on file with the city or village clerk for public inspection, at least one week before the final passage or adoption, was mandatory and that a compliance with such provision was necessary to the validity of any ordinance or official act of the council coming within its terms. We are of the opinion that what was said in that case is controlling in this case.

Appellants urge that the resolution of the city council directing the mayor and clerk to execute the lease was sufficient and legal, under the holding announced" in People v. City of Chicago, 363 Ill. 409. We do not consider what was said in that case with respect to a city council’s right to authorize the performance of mere ministerial acts by resolution, to apply in the case at bar. The facts in the two cases are entirely different. It was stated in the case of People v. City of Chicago, supra, at p. 414 of the opinion, “it is undisputed that the nursery is maintained solely to provide trees and shrubs for the parks and public grounds of the city . . . .” Again on p. 416, it is said, “the power of the city over parks is very broad. The city council has discretion over their size, location, number, equipment and maintenance. Whether the city shall maintain a nursery to supply its parks and public grounds with trees and shrubs or buy them on the. open market, is an administrative function, and the courts will not interfere with its exercise in the absence of arbitrary action.” It is thus apparent.there is nothing in the above case contrary to the rule as announced in City of Ottawa v. Hulse, supra.

Since there was no compliance by the city council with sec. 33 of the act on Commission Form of Government, we are of the opinion that the lease is invalid and void. It is therefore unnecessary to consider the other objections raised by appellants.

The decree of the trial court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Holland Furnace Company, Appellant, v. Lithuanian Building and Loan Association of Waukegan, and John Ojala, Appellees.
    Gen. No. 9,077.
    Opinion filed September 3, 1936.
    Rehearing denied October 6, 1936.
    Herman C. Litchfield, of Waukegan, and Carl I. Sigal, of Chicago, for appellant.

      Joseph A. Jadrich, of Waukegan, for certain appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is an action of replevin which was instituted by the Holland Furnace Company, a corporation, before a* justice of the peace and was thereafter appealed to the circuit court where a trial was had before the court, a jury being waived, and from a' judgment in favor of the defendant, the plaintiff has appealed.

The property in controversy is a heating* and air conditioning system with necessary piping and connections referred to in the record as a hot air furnace. The facts were stipulated and from the stipulation it appears that Jacob Niemi and wife Sophia Niemi owned and occupied a dwelling located at 670 McAlister avenue in Waukegan on and prior to November 19, 1930. On that date they executed and delivered to the Lithuanian Building and Loan Association their mortgage to secure the payment of a certain indebtedness due from them to the association. This mortgage was, on the following day, duly recorded. On July 21,1931, appellant, the Holland Furnace Company, sold to Jacob Niemi and Sophia Niemi the hot air furnace in dispute for $397.81, payable $10 in cash and the balance in monthly instalments of $16.15 each, the final payment of $16.36 being due on July 26,1933. This sale was evidenced by a conditional sale contract executed by the parties thereto and which provided that the seller, appellant herein, should install the furnace, do all the carpenter work and cutting through the cellar walls and should remove and dismantle the Hero heating plant then in the basement of the premises, which was to remain the property of the Niemis. This contract recites that the Niemis hold the legal title to the premises where the furnace was to be installed and provided:

“The heating plant, accessories and piping in basement shall remain personal property at all times and title thereto shall remain in us until you make final payment therefor, whereupon title shall vest in you as buyer. If any payment is not made on the date when it becomes due, as herein provided, all the unpaid balance shall immediately become due and payable. In case default is made in any payment when due, we retain and shall have the right to remove the heating plant, accessories and piping in basement and retain all payments made hereunder as reasonable rent therefor. No action to enforce any rights under mechanic lien laws or any similar laws shall prejudice our right to remove the heating plant, accessories and piping on default of payment as provided above. ’ ’ On the reverse side of this instrument is a statement signed by the Niemis to the effect that they are the holders of the legal title to the real estate in which the furnace is to be installed and consenting to the installation thereof and agreeing that the furnace shall remain the personal property of the seller until paid for in full. In pursuance to the contract the old Hero furnace was removed by appellant from the Niemi basement, the dismantled portions being carried up the outside stairs. This furnace rested on a base plate made of cast iron and the castings were inclosed by a galvanized iron casing 45 inches in diameter. It was located in the center of the basement and consisted of a radiator or topmost portion of the casting, a- dome, a feed section of cast iron, a fire box and an ash pit of cast iron. In dismantling the old furnace, appellant’s employees removed the bolts from the outer casing and separated -the castings by prying them apart, they having been joined one to another by furnace cement. The hot and cold air runs were disconnected from the hood of the casing and from the hot and cold air boxes. It took two employees of appellant approximately three hours to dismantle and remove the old furnace and after it was removed appellant’s employees installed the new furnace. It consisted of the radiator feed section, fire box in two parts and an ash pit, all of cast iron. The base plate is of cast iron 28 inches in diameter and one and one-half inches thick. This base is placed on the floor and the assembled furnace rests thereon, two additional cold air runs and one hot air run were added to the number which the old furnace had and two new cold air apertures and two new hot air apertures were cut into the walls or floors of the premises. At the place ivhere the new furnace was placed, the basement floor was not level and upon the cement floor that was there appellant built a cement base, and it is upon this cement base that the base plate was placed. Neither the base nor base plate are bolted or otherwise attached to the concrete base, but the shaker is bolted to a concrete base which appellant built on the concrete floor and this base is about eight inches in diameter and two inches in height.

On September 18, 1931, appellee, Lithuanian Building and Loan Association filed in the circuit court of Lake county a bill to foreclose its mortgage. Appellant was not a party to that suit and had no actual notice of appellee’s mortgage. The conditional sale contract was never placed of record and no lien was ever filed against the premises by appellant. Appellee’s foreclosure suit proceeded to a decree on January 29, 1932. On March 7, 1932, a sale was had and at that sale appellee became the purchaser, bidding therefor $5,609.15, which was $197 less than the amount of the debt, interest and costs. On June 8, 1933, appellee received a master’s deed to the premises and on June 15, 1933, the Niemis vacated and at the time they vacated there was due appellant by virtue of the sale contract $292.50. On January 18,1934, appellant notified appel-lee loan association that the furnace and heating equipment was subject to a conditional sale contract and on June 6, 1935, formal demand for possession was made and refused by appellee and thereafter this suit was instituted.

Counsel for appellant insist that the stipulation discloses that this furnace can be removed without material injury to the freehold or to itself and appellant’s rights as vendor are superior to those of appellee. The appellee loan association insists that this furnace and its accessories is a fixture, became an integral part of the dwelling, can not be removed without material injury to the premises and that because of appellant’s laches and conduct, it is estopped to assert its claim.

In National Bank of the Republic v. Wells-Jackson Corp., 358 Ill. 356, it appeared that a sprinkler system was purchased by a lessee of certain premises under a conditional sale contract and installed in the leased premises. The lessee defaulted in the terms of the lease and the lessor owner of the fee received possession of the property leased and the vendor of the sprinkler system sought to recover possession of the sprinkler system from him. In sustaining the right of the vendor, under the conditional sale contract to recover the court in its opinion said: “The general rule may be deduced from the authorities cited, that where the parties to a contract of sale of personal property in which the title is reserved in the vendor to the chattel sold, agree that by the annexation of such personal property to the real estate the chattel shall not lose its character as personal property, such contract is enforceable between the parties thereto and also against a purchaser or a prior mortgagee, or those occupying similar positions, where the chattel can be removed without material injury to the freehold or the usefulness of the chattel. Raymond Co. v. Ball, 210 Fed. (7th C. C. A.) 217; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279 5 Binkley v. Forkner, 117 Ind. 176,19 N. E. 753. Other cases recognizing the validity of conditional sales contracts and the right to remove fixtures as against third parties even though the fixtures are permanently fastened to the realty, where no material injury will be done the premises by such removal, may be found in Detroit Steel Cooperage Co. v. Sisterville Brewing Co., 233 U. S. 712, 58 L. Ed. 1166; Davis v. Bliss, 79 N. E. (N. Y.) 851; Best Mfg. Co. v. Cohn, 86 Pac. (Cal.) 829; Harris v. Hackley, 86 N. W. (Mich.) 389; Smith v. Holland Furnace Co., 278 Pac. (Kan.) 719; Holland Furnace Co. v. Bird, 21 Pac. (2nd) (Wyo.) 826; Palmateer v. Robinson, 38 Atl. (N. J.) 957.”

Sears Roebuck & Co. v. Piasa Bldg. & Loan Ass’n, 276 Ill. App. 389, was an action of replevin instituted by Sears, Roebuck and Company to recover bath tubs, sinks, lavatories, toilet outfits and soil pipes which were installed by the company in an apartment huilding by screws and bolts with pipes running through the brick walls in the usual manner. It appeared that one Arst was the owner of the apartment in 1929 and in that year he executed a real estate mortgage thereon to the Piasa Building and Loan Association. Subsequently and in 1931 he purchased of Sears, Roebuck and Company the plumbing articles referred to and executed a conditional sale contract in which it was recited that the title to the articles sold should remain in the company until the sale price was fully paid. In November, 1931, Arst was adjudicated a bankrupt, the trustee abandoned the property and thereupon the loan association filed its bill to foreclose its mortgage but did not make Sears, Roebuck and Company a party defendant. The foreclosure proceeding took the usual course and a sale was had, at which the loan association purchased the premises and in due time received a deed of conveyance. During the pendency of the foreclosure proceedings, Sears, Roebuck and Company instituted the replevin suit. In holding* that the company was entitled to the plumbing fixtures under its sale contract, the court said: “An agreement that an article attached to real estate shall be removable, or remain personalty, is ordinarily given full effect as against a mortgage of the realty, made previous to the affixation, in so far as this will not interfere with the security of the mortgage, where the mortgagee has not been misled and has advanced nothing on the faith of the chattels being so attached.” Citing Sword v. Low, 122 Ill. 487, and several cases from other jurisdictions. The opinion in the Sears, Roebuck and Company case then recites the holding in Sword v. Low, supra, and continues: “Measured by this rule, it is apparent that appellant (Sears, Roebuck and Company) and Arst both regarded the plumbing fixtures as personalty, and intended that they should so remain until the price thereof was fully paid. The conditional sales contracts expressly stipulate that they ivere to remain the property of appellant until they were fully paid for. This is wholly inconsistent with any idea that they were intended to become part of the realty. . . . As to whether or not the articles could be removed without substantial and material injury to the freehold, Avhile the evidence bearing upon the subject is meager, Ave are of opinion that same can be done Avithout any serious or lasting damage to the building, and that the cost of repairing, or covering the marks, or filling the holes, to be occasioned by their removal, would be trifling. The appellee would not be damaged thereby. Its loan'was made upon the building as it existed before the installation of the chattels and Avith no expectation that they Avould be placed in the structure. It acquired, by foreclosure, the same property it would have acquired if the plumbing had not been done, and its situation mil not, in any way, be altered to its prejudice.”

In Holt v. Henley, 232 U. S. 637, 58 L. Ed. 767, the court held that a sprinkler system retained its identity as personalty notAvithstanding it was bolted and fastened to the building and that the title of Holt, the vendor under a conditional sale contract, was superior to that of a mortgagee who claimed under a mortgage executed and recorded before the sprinkler system was installed.

In Smith v. Holland Furnace Co., 128 Kan. 580, 278 Pac. 719, cited with approval by our Supreme Court in National Banh of the Republic v. Wells-Jachson Corp., supra, it appeared that the plaintiffs owned a dwelling in Kansas City which they sold under a contract of purchase (which provided that any improvements should become the property of the owners) to certain parties who went into possession. Shortly thereafter the vendees entered into a conditional sales contract with the appellant in this case for the installation of a furnace. In order to install the furnace, the company laid a concrete foundation in the basement and cut the floors for hot-air registers, attached the pipes, flues, shafts, etc. Not long thereafter, the vendees defaulted in the terms of both their real estate contract and in their conditional sale contract and the vendors under the contract for the sale of the real estate resumed possession of the dwelling, but the furnace company entered, removed the furnace and appendages, but left the fittings which were attached to the floor and walls. Thereupon the vendors under the real estate contract brought suit to recover the value of the furnace which the company had removed.. In sustaining the conditional sale contract and a judgment rendered for the furnace company in the lower court, the Supreme Court said: “We find that many courts do not admit that the fact of annexation of a chattel to realty is conclusive that its character as personal property is extinguished, but hold that the intention of the parties to the annexation and the attendant circumstances may be of controlling significance.” (Citing cases and authorities.) The opinion then quoted from Ford v. Cobb, 20 N. Y. 348, in part as follows: “ ‘It would not be competent for parties to create a personal chattel interest in a part of the separate bricks, beams or materials of which the walls of a house are composed. . . . But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured and without the destruction of, or material injury to, the things real with which they are connected, though their connection with the land or other real estate is such that in the absence of an agreement, or of any special relation between the parties in interest, they would be part of the real estate.’ ”

In Holland Furnace Co. v. Bird, 45 Wyo. 471, 21 P. (2d) 825, also cited with approval in National Bank of the Republic v. Wells-Jackson Corp., supra, it was held that the appellant in this case might remove its furnace and equipment as against a prior mortgagee under its conditional sales contract made by the furnace company with the owner of the fee. In its opinion the court said: “The intent manifested by the conditional sales agreement to retain title in the vendor and preserve the character of the chattel as personalty, after annexation to the realty, prevails against a prior mortgagee of the realty, so that the chattel can be removed upon the vendee’s failure to perform. ’ ’

Greene County Building & Loan Ass’n v. Holland Furnace Co., 227 Mo. App. 972, 59 S. W. (2d) 749, was a suit by a loan association to enjoin the appellant in this proceeding from removing a furnace which it had installed in the dwelling house of one Dixon. It appeared in that case that in 1930, Dixon being the owner of the premises executed, a trust deed to the loan association to secure the payment of $2,600. This trust deed covered the land upon which Dixon’s dwelling was located. At the time this trust deed was executed, there was a furnace in the dwelling but shortly thereafter Dixon removed it and purchased a new furnace from the appellant in this case under a conditional sales contract providing for the payment of the furnace in monthly instalments and containing the usual clause that the furnace should remain personal property and the title thereto should remain in the Holland Furnace Company until final payment was made, and under this contract a new furnace was installed. Dixon thereafter defaulted in the payments to the loan association and in his payments to the furnace company. The loan association foreclosed and bid in the property at the sale and later received a deed and brought the instant suit. The Appellate Court of Missouri sustained the lower court in dismissing the bill and held that the furnace retained its character as personalty and that the company was entitled to remove the furnace even though the conditional sales contract was not recorded as provided by the Missouri Statute.

In Holland Furnace Co. v. Jefferson, 173 Minn. 121, 216 N. W. 795, it was held that the appellant in this case had a right to remove its furnace which it sold under a conditional sales contract and installed in a leased dwelling and in Holland Furnace Co. v. Lowe, 172 Ga. 815,159 S. E. 227, it was held that where title to a furnace is retained by the seller, such furnace can be removed as against the purchaser, if the removal can be effected without material damage to the freehold. In this case the conditional sale contract was made by the appellant here with one who only owned an undivided interest in the dwelling in which the furnace was installed. In Industrial Bank of Richmond v. Holland Furnace Co., 109 W. Va. 176,153 S. E. 309, it was held that the appellant here was entitled to recover possession of a furnace which it had sold under a conditional sale contract and which had been installed in a dwelling located upon premises upon which the vendee in the conditional sale contract had theretofore executed a deed of trust to the- Industrial Bank of Richmond.

In support of its contention that the furnace here is a fixture and was intended to become an integral part of the building, counsel for appellee cite National Bank of the Republic v. Wells-Jackson Corp., supra; Thielman v. Carr, 75 Ill. 385; Lyle v. Rosenberg, 192 Ill. App. 378; Joyner v. Mitchell, 267 Ill. App. 427, and a New Jersey and Pennsylvania case. Counsel say that the identical question involved in the instant case arose in Thielman v. Carr and that the court there held a furnace to be a fixture. The Thielman case was a proceeding to enforce various mechanics and materialmen liens and in the course of its opinion the court did say: “It is believed that ordinary stoves and pipes have been always conceded to be personalty or mere chattels. They, as all know, are not intended to become, and form a part of the building. But with furnaces it is different, as it is known that they are intended to be permanent, and a part of the structure. They are seldom, if ever, detached from the building, so long as they last, whilst stoves are frequently removed and again replaced. Another difference is, that furnaces cannot be removed without taking them apart, and the intent must usually control. If, as is believed to be generally true, furnaces are intended to be permanent, and to become a part of the building, that should stamp its character and require it to be held realty. ’ ’ In our opinion the facts in the Thielman case are clearly distinguishable from the facts in the instant case. There the court had under consideration the claim for a lien of one who furnished heating equipment for a new building. The court allowed the claim for a lien, holding that it was the intention of the parties that "the furnace should become a part of the realty. No conditional sale contract was involved in that proceeding,' but it is significant that the court said that in determining whether personal property shall retain its character of personalty or shall be held to be realty, the intent of the parties must usually control. There is nothing said in this case or in the other Illinois cases cited by appellee which militates against the general rule that personal property may retain its character of personalty by the express agreement of the parties, although attached to the realty in such a manner as that, without such agreement it would lose that character provided it is so attached that it may be removed without material injury to the freehold.

A conditional sale contract is recognized as valid by the courts of this State. Sherer-Gillett Co. v. Long, 318 Ill. 432, and under the holding of our Supreme Court in National Bank of the Republic v. Wells-Jackson Corp., supra, and the other cases hereinbefore cited, appellant, as vendor, in such a contract has a right to remove this furnace as against appellee, even though the furnace is permanently fastened to the realty, — if it can be removed without material injury, either to the premises or to the usefulness of the furnace. The question then for determination is whether this furnace can be so removed. Counsel for appellee insist that the term, material injury, as used by the authorities does not mean only physical injury but also injury to the use and enjoyment of the freehold, that this court should take judicial notice of the fact that in a climate such as exists in Lake county that artificial heat is necessary to make dwellings habitable during certain portions of the year and that the usual method of providing such artificial heat is by a furnace and if the portions of this furnace which are described in the writ of replevin are removed the premises will not only be injured, but it will be necessary to replace the furnace with'another heating unit. This court is not insensible to the fact that if appellant prevails in this case it will be necessary in order to make appellee’s dwelling comfortable and habitable during certain seasons of the year that the premises must be heated by some means but we do not concede that the words, material injury, as used in the authorities mean injury to the use and enjoyment of the freehold such as referred to by counsel for appellee. From the stipulation of the parties, we are clearly of the opinion that under the authorities the furnace and portions of the heating equipment described in the writ of replevin can be removed without any serious or lasting damage to the dwelling and without seriously impairing the usefulness of the furnace. Appellee will not be damaged by their removal. It obtained possession of appellant’s furnace and equipment when it acquired the premises under foreclosure. The stipulation is to the effect that the old Hero furnace in the dwelling at the time appel-lee ’s mortgage was executed was practically worthless and when it was removed shortly "thereafter and replaced by appellant’s furnace, it was sold by the then owner of the premises for junk.

It is finally insisted by appellee that appellant is estopped to assert its claim by its conduct and because of laches. The record discloses that the final payment under appellant’s contract was due July 26, 1933, that appellant was not a party to the foreclosure proceeding and the first knowledge it had of that suit was about January 18,1934 when it immediately notified appellee of the terms of its contract. None of the essential elements of estoppel are disclosed by this record and as stated in Sears, Roebuck S Co. v. Piasa Bldg. & Loan Ass’n, supra, where the same contention was made, appellant had the full statutory period in which to assert its claim. While there was considerable delay upon the part of appellant in asserting its rights under its contract, we do not believe it was such as to preclude a recovery herein.

For the reasons given, the judgment of the trial court is reversed and this cause is remanded with directions to render judgment in favor of appellant.

Reversed and remanded.


author: Mr. Justice Wolfe

text:
    Frank C. Sheely, Appellee, v. John Sall and Harry O. Swanson, Appellants.
    Gen. No. 9,068.
    Opinion filed September 3, 1936.
    Rehearing denied October 6, 1936.
    Hall & Dusher, of Rockford, for appellants.
    Karl C. Williams, of Rockford, and Fred E. Gardner, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This suit for damages was begun in the circuit court of Wimiebago county on April 13, 1934, for personal injuries alleged to have been caused by the negligence of the defendants whose automobile struck the plaintiff. The plaintiff’s petition is in the usual form, charging the defendants with the negligent operation of their automobile, and that through the careless and negligent acts of the defendants, the plaintiff was injured. The defendants filed their answer denying that they negligently operated their automobile and that the plaintiff was injured by no fault of theirs. The case was submitted to a jury for trial who found a verdict in favor of the plaintiff and assessed his damages at $6,500. A motion for a new trial was overruled, judgment entered on the verdict and the case brought to this court for review.

The evidence shows that the defendant, Sail, was the owner of a new DeSoto automobile; that Sail and his wife had driven the automobile to the home of the defendant, Swanson, for the purpose of taking Mr. Swanson and his wife for a ride. The four of them got into the car with Mr. Swanson driving. Swanson and Sail were sitting in the front seat and Mrs. Swanson and Mrs. Sail were sitting in the rear seat.

Harlem Boulevard is a street extending north and south in Rockford, Illinois, and it is what is commonly called a four-lane traffic street; two lanes of traffic on the east and two on the west, separated by a parkway approximately 25 feet in width. The accident happened about 8:00 p. m., January 29, 1934. Sheely, the plaintiff, was employed by one Lerdall as an assistant in moving some household goods from the city of Dixon to the 1100 block on Harlem Boulevard in the city of Rockford. As they arrived, they drove up in front of the property and waited probably 15 minutes for the traffic to slow down, so that they would feel safe in backing their truck across the street and up to the door of the residence to unload the furniture. Just what happened prior to the time of the accident is somewhat in dispute, but we think the evidence shows that Ler-dall and the plaintiff drove their truck parallel with Harlem Boulevard in front of the house in which they intended to unload the furniture; that Lerdall was attempting to back the truck across Harlem Boulevard onto the sidewalk and yard, and the truck was in this position as the defendants approached from the south and when the plaintiff was injured. The pavement on the east lane of traffic on Harlem Boulevard is 18 feet wide and the truck in question was 18 to 20 feet long.

The plaintiff contends that he was standing a distance of probably 18 to 20 feet south of the truck waving a flashlight to warn approaching cars that they were backing the truck across the street; that the defendant’s car approached rapidly without any lights; when it was within 50 or 60 feet of the truck he saw that it was not going to stop and he ran over to the parkway and was struck by the car and injured. Ler-dall, the owner of the truck, partly corroborated the plaintiff’s evidence and stated that in his estimation, the automobile was approaching at a rate of 35 to 45 miles an hour.

The defendants claim that the headlights on their car were burning and that after the accident one of the lights was bent, but still burning and threw a beam of light straight up into the air; that plaintiff ivas not exhibiting a flashlight south of the truck nor standing south of the truck; that they did not see the truck blockading the road until they were within 50 to 75 feet of the truck; that in order to avoid a collision, they drove over on the parkway west of the truck and as they did so, the plaintiff came around from the north side of the truck and was knocked down by the automobile; that the defendant’s car ivas stopped almost instantly after the collision; that they were driving at a reasonable rate of speed, not to exceed 20 to 25 miles per hour. Sheely was taken to the hospital by the defendants and he remained there for some time.

At the hearing of the case, the defendants offered in evidence a copy of an ordinance of the city of Rockford, Illinois, to the effect as follows: “No animal drawn or motor driven vehicle shall be allowed to stand in any street unless the right hand wheels thereof are within 18 inches of the curb line.” This offer ivas refused by the trial court. From a review of the evidence in this case, it is our conclusion that the truck of Lerdall was not allowed to stand in a public street; therefore the city ordinance was not applicable. The evidence in this case clearly discloses that the truck was not standing, but was being backed across the street preparatory to being unloaded on the east side of the street. The court did not err in refusing to admit the ordinance in question.

The appellants criticize several instructions given on behalf of the plaintiff. We have examined the instructions and are of the opinion that they fairly set forth the law applicable to the case and the jury could not be misled by the instructions. We also considered the argument of the appellants in regard to the refused instructions offered on behalf of the defendant. It is our conclusion that the jury Avas properly instructed relative to the Iuav in the case.

A more serious question arises upon the AAdiole of the evidence in this case. The plaintiff gave his Aversion of A\diat he avs doing just before and at the time of the accident. He was corroborated someAvhat by the oAAmer of the truck. The defendant, Sail and his Avife, and SAvanson and his Avife all stated positively that Sheely Avas not south of the truck Avaving a flashlight as they approached. The eAddence is not contradicted that on the east side of the driveway, there Avere trees and telephone poles and that the plaintiff by taking three or four steps east could have put himself in a place of safety. According to his testimony, he saw the car Avas not going to stop Avhen it Avas from 50 to 75 feet south of the truck. He knew that this Avas a much traveled street as they had waited 15 minutes for the traffic to sIoav doAvn, so that they could attempt to back the truck across the street. Instead of going east to a place of safety, he ran west, the only way that a car could pass around the truck in safety. According to his own testimony, he ran directly in front of the automobile as it approached from the south. On the east side of the street there is an 8-inch curbing and on the west side adjoining the parkway there is a 4-inch curbing. There was no obstruction whatsoever in the parkway and a car could easily drive upon the parkway and then around the truck. Immediately after the accident, two cars approaching from the south did drive upon the parkway and around the plaintiff’s truck and the defendant’s car and then back onto the street and then on north. It is a well known fact where streets or roads are built for four lanes of traffic, cars are expected to be driven at a greater rate of speed than that on ordinary roads. They are built for this very purpose so as to relieve congestion in the traffic. The plaintiff was engaged in a dangerous undertaking in backing the truck at night across this road. Neither headlights nor tail lights of the truck would be visible to a car approaching from the south, as this truck was being backed nearly straight across this congested street. He knew that any minute a car might come from the south and if it was not warned that the street was blockaded, there probably would be an accident.

This court is reluctant to set aside a verdict of the jury on the ground that the verdict is against the weight of the evidence. After reading this record, we have come to the conclusion that the plaintiff has failed to prove that just before and at the time of the accident in question, he was in the exercise of due care and caution for his own safety.

The judgment of the circuit court of Winnebago county is hereby reversed and the case remanded.

Reversed and remanded.


text:
    Joseph E. Brown, Appellee, v. Edwin Brown and Edwin H. Brown as Administrator of the Estate of Emily L. Brown, Deceased, Appellant.
    Gen. No. 9,092.
    Opinion filed September 3, 1936.
    Rehearing denied October 6, 1936.

      Adsit, Thompson & Herr, of Pontiac, for appellant.
    E. A. Simmons, of Pontiac, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the' court.

The appellee, Joseph E. Brown, brought suit in the circuit court of Livingston county, Illinois, against his brother, Edwin H. Brown, individually and as administrator of the estate of Emily Brown, deceased. The suit was for the possession of oats and corn which had been grown on land held by the mother, Emily L. Brown during her lifetime. The declaration was in the usual form of replevin and trover, asking the return of the corn and oats, or in lieu thereof, the value of the same. To the declaration, the defendant filed several pleas. The first denied the taking and the possession of the property and its wrongful detention. Other pleas set up, property in the defendant as administrator of Emily L. Brown, deceased; others a former adjudication in case number 15,899, as an estoppel by judgment; others an estoppel by verdict, and setting forth the judgment in the former case. A hearing was had before the court, without a jury, who found the issues in favor of the plaintiff and that he was entitled to the grain in question. Judgment was entered in accordance with the findings and damages assessed against the defendant at one cent and costs of suit. It is from this judgment that this appeal is prosecuted.

It is first insisted that the finding of the court is contrary to the evidence in the case, and, therefore, this judgment cannot stand. It appears from the evidence that Joseph E. Brown and his wife went to live with his mother, Emily Brown; that Emily L. Brown needed someone to look after her and care for her in her declining years; that she entered into a contract with her son, Joseph E. Brown, in which she assigned all the rents, income and profits from her various properties to her son, Joseph, in consideration that he care for her during her life, pay all her necessary living expenses and all her funeral and burial expenses; that later, Emily L. Brown made an assignment to her son, Joseph of all her chattel property. The validity of this contract and assignment is not questioned. All the grain in controversy is conceded to be rent grain, grown on Emily Brown’s premises, prior to her death. It is our conclusion that the evidence conclusively shows, that at the time of the hearing in this case, the appellee, Joseph E. Brown, was the owner of, and entitled to the possession of, the grain in question.

The appellant seriously insists that because of a former suit, the appellee is estopped both by judgment and by verdict from asserting his right to this grain. In the case of the Board of Directors of Chicago Theological Seminary v. People, 189 Ill. 439, our Supreme Court had under consideration a similar question as is now presented to us. On pages 443 and 444 of their opinion, they use this language: “In order that the judgment in the first suit shall operate as an estoppel in the second suit, it must appear on the face of the record, or must be shown by extrinsic evidence, that the precise question was raised and determined in the first suit. ‘In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.’ The burden of proof is always upon the defendant, who pleads res judicata because of a former judgment, to set up that judgment, and show what was determined by it, and what is common to the subsequent action. The proof must be clear, certain and convincing. If there be an uncertainty as to what was the precise question raised and determined in the former suit, as, for example, if it appears that several distinct matters may have been litigated, upon one or more of which the judgment may have been passed, without indicating which of them was litigated, the whole subject matter of the action will be at large, and open to any new contention. But this uncertainty may be removed by extrinsic evidence showing the precise points involved, and determined in the former action.”

In the case of Crowder Seed Co. v. Industrial Commission, 347 Ill. 86, at page 89, our Supreme Court was again considering estoppel by judgment and verdict, and have this to say: “An estoppel by verdict occurs where some controlling fact or question material to the determination of both causes is decided in a former suit and is again in issue in a subsequent suit between the same parties, in which case the first adjudication of the question will, if properly presented, be conclusive of the same question in the later suit irrespective of whether the cause of action is the same in both suits. To operate as an estoppel by verdict it is necessary that there shall have been a finding of a specific fact in the former judgment or record that was material and controlling in that case or was necessarily involved in the verdict or judgment and also material and controlling in the pending case, and where there is no such specific finding and more than one distinct issue of fact was involved in the former case, so that it is uncertain upon which issue the decision rested, the estoppel will not be applied. (Hoffman v. Hoffman, 330 Ill. 413.) Two questions were involved on the hearing before the arbitrator: First, whether or not Aldridge had received an accidental injury in the course of his employment ; and second, whether or not disability from such injury, if incurred, existed at the time of the hearing. A negative finding upon either of these questions necessitated a finding by the arbitrator that Aldridge was not entitled to compensation. The arbitrator’s finding, therefore, did not operate as an estoppel by verdict or as res judicata upon the hearing before the commission. ’ ’

Numerous other cases of our Supreme Court have announced the same ruling in different language. In the former suit, Joseph E. Brown was the plaintiff, and Edwin H. Brown, as an individual, was the only defendant. The declaration consisted of three counts, each of which alleged that Joseph Brown was the owner of the corn and the oats in question; that Joseph E. Brown had made demand upon Edwin H. Brown for this grain; that the defendant had, with force and violence, prevented the plaintiff from removing the same, and that the suit was for damage for the refusal of Edwin H. Brown to allow Joseph E. Brown to remove the grain in question. To this declaration, the defendant filed his answer, in which he denied that the plaintiff was the owner of or entitled to the possession of the grain; he denies that he unlawfully and with force and violence withheld the same. He alleges that the grain is not his individually, but the property of the estate of Emily L. Brown, deceased, and that he, the defendant, is the administrator thereof; that he is entitled to a part of said grain; that he does not know what portion of the grain was raised in 1933. He denies that the plaintiff is entitled to the possession of the whole of said grain.

Later, the defendant, Edwin H. Brown, filed an amended, or additional, answer in said cause, in which he denies that the 1933 crop was all harvested and cribbed and that Emily Brown sold all the rent corn to Joseph E. Brown. He alleges that all of said corn was owned by Emily L. Brown at the time of her death. He denies that the defendant refused to allow Joseph E. Brown to remove said grain before July 31, 1934; denied that the plaintiff or any one else had a right to remove said grain without paying a reasonable charge for the storage from the date of the death of Emily L. Brown; denied that plaintiff ever demanded of him the right to remove said grain. He admits the service by the defendant of a demand, as Exhibit C., but alleges that said demand was for the whole of said grain; that he as remainderman was entitled to a part of the 1933 crop; that he has no knowledge of the amount of said crop and that the plaintiff did not offer to set off the defendant’s share thereof. He alleges that all of the grain except defendant’s share therein belonged to the estate of Emily L. Brown of which he, the defendant, is administrator; that he was in possession of said grain only in his capacity as administrator; that the plaintiff knew this. He denies that he wilfully and wantonly refused to let the plaintiff take possession of the grain or that he resorted to violence to prevent the removal of the same. He alleges that his whole connection with said grain was as administrator of his mother’s estate and not in his individual capacity.

The evidence in regard to the ownership of the grain offered by the appellee, Joseph E. Brown, is practically the same in both suits. From the abstract of the appellant, it is difficult to learn just what took place at the former trial. The same judge tried both cases and from the evidence presented, this court can come to no other conclusion than that the trial court found the issues in favor of the defendant in the first suit, on some other ground, rather than that Joseph E. Brown had failed to establish his ownership of the grain in question. There were numerous pleas filed by the defendant, as a defense to the suit.

There is no specific finding by the court in the first case of what induced him to find the issues in favor of the defendant. There were several issues of fact involved in the case and it is uncertain upon what issue the court based his opinion. As ivas stated in the case of Board of Directors of Chicago Theological Seminary v. People, supra, the burden of proof is always upon the defendant, who pleads res judicata because of a former judgment to set up that judgment, and show what was determined by it, and what is common to the subsequent action. The proof must be clear, certain, and convincing. The defendant, in this case, has failed to establish what was the deciding factor in the first case.

The trial court properly found that the appellee was the owner of, and entitled to, the possession of the grain in question, and that the former suit was not a bar to the recovery in this case.

The judgment of the circuit court of Livingston county is hereby affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    James L. McInerney, Appellant, v. Fred A. Nachman, Appellee.
    Gen. No. 38,804.

      Opinion filed June 30, 1936.
    Rehearing denied July 10, 1936.
    Defress, Buckingham, Jones & Hoffman, of Chicago, for appellant; Don Kenneth Jones and Chas. O. Butler, both of Chicago, of counsel.
    Altheimer, Mayer, Woods & Smith, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment for defendant in an action of trover, tried by the court without a jury. The amended declaration was in two counts. The first count alleged the losing by plaintiff and a finding by defendant of a bank check in the amount of $25,000, signed by plaintiff, to the order of defendant; a plea of the general issue was filed to this court and upon the trial, upon defendant’s motion at the close of plaintiff’s case, the court found for defendant. The second count also was in trover for the conversion by defendant of certain shares of stock; defendant filed a plea of the statute of limitations, to which plaintiff demurred, and the court overruled the demurrer and sustained the plea.

The principal argument made by respective counsel in this court raises the question as to whether, upon the facts developed upon the trial, plaintiff could maintain the action of trover. The trial court was of the opinion that it could not be maintained, and after consideration we are of the opinion that the holding of the trial court was correct.

This litigation grew out of the purchase of stock of the Nachman-Spring Filled Corporation. In October, 1929, plaintiff was operating the Grand Rapids, Michigan, plant of this corporation; the defendant was either president or chairman of the board of directors; plaintiff attended a meeting of the executives of the concern at its New York factory in October at about the time the market crash occurred; conferences were held concerning the business and general affairs of the corporation; the executives agreed that inasmuch as the Nachman stock was dropping it was a good time to buy.

Plaintiff testified that defendant invited him to “participate in a buying pool” for the purpose of buying Nachman stock and asked plaintiff to take $25,000 worth, to which plaintiff agreed. Plaintiff testified that defendant explained that he would buy this stock for all the participants in the pool and as soon as it was bought it would be delivered; that no stock could be bought on margin and all the stock had to be paid for in full; that payment of the stock was to be made when the stock was purchased, and plaintiff would be notified when the money was due; that the stock would be distributed to each participant after it was bought.

October 31st defendant telegraphed to plaintiff— “Purchased twenty eight hundred fifty shares Nach-man average forty seven Stop Please send check for twenty five thousand dollars at once.” November 2nd plaintiff drew his check to the order of defendant for $25,000; this was received by defendant and indorsed by him to Hallgarten & Co., the stock brokers in the purchase of the stock; it was subsequently paid through the Chicago Clearing House.

November 19th defendant addressed a letter to plaintiff and the other participants in the pool referring to “the Nachman stock which we have purchased for our Pool Account. This is being carried at the brokerage house of Hallgarten and Company, Chicago, and is known as Account #222.” The letter also referred to a total of 3,480 shares bought by the syndicate. To this plaintiff replied, noting that the stock was carried with Hallgarten and Company under account #222. The letter also made inquiry as to whether Hallgarten would carry additional shares for plaintiff if he should wish to buy more shares. To this defendant replied that the corporation owed some money to account #222 at Hall-garten and Company which defendant did not wish to take out of the business at this time and that this payment would be made within a few weeks and the stock then distributed. Then followed a considerable correspondence between the parties in which plaintiff claimed that he had contributed his money for the purpose of buying outright as many shares of stock as the amount would pay for and that he was not willing to let his shares be used as collateral for the corporation.

January 13, 1930, plaintiff wrote defendant again protesting against the manner in which the stock was purchased and stating that he would not now accept the stock under any circumstances and requested the return of his $25,000 with interest. January 18th defendant replied that plaintiff’s position was “untenable”; that the pool was about to be dissolved and the stock distributed in the proper proportions among the members of the pool; that the balance due from plaintiff on the total purchase price was a net amount of $2,136.93, and that upon receipt of this amount 575 shares of the corporation’s stock would be forwarded to plaintiff. Further correspondence followed, plaintiff declining to forward the amount due, and no stock was delivered to him. This lawsuit followed.

Trover is an old fashioned common law action and one who employs it must satisfy its requirements. In Kerwin v. Balhatchett, 147 Ill. App. 561, plaintiff sought to recover money voluntarily given to the defendant with which to pay a debt to defendant and also to discharge other debts of plaintiff; a dispute arose as to the amount plaintiff owed defendant, plaintiff claiming it was much less than the defendant claimed. The court held that the action of trover would not lie as the evidence showed the defendant took the money with the knowledge and consent of the plaintiff to be used for a certain purpose, and noted that trover is an ancient remedy, “involved in technicality of procedure and environed with legal fiction; but he who invokes it must maintain the cause in accord with precedent established for its adjudication.” The opinion also notes that in vol. 2 Cooley on Torts (3rd ed.) p. 857, it is said that trover will not lie “for money'which was given to the defendant to be used for a particular purpose and which the defendant converts to his own use, or which is found due upon an accounting.” Mere neglect of some legal duty will not suffice to support trover although it may constitute sufficient ground to support an action on the case.

The facts in the cases cited by plaintiff can be readily distinguished from those in the case at bar. In Knight v. Seney, 290 Ill. 11, defendant was given certain securities to be taken to Ohio, to be used in a certain transaction there; defendant did not do this but disposed of the securities otherwise. This was held to be a wrongful conversion. A number of English cases have been cited by plaintiff sustaining an action of trover, but in all of these the defendant treated the property intrusted to his care as his own, contrary to the authority given him. It is to be noted that in the instant case, defendant was not intrusted with the custody of a bill of exchange to be held by defendant until he should receive instructions from the plaintiff as to its use. The evidence shows that the defendant had agreed with others to buy shares of stock for the benefit of all participants in the pool, and defendant did purchase the shares of stock of the corporation which he had been instructed to purchase.

Defendant’s telegram to plaintiff notified him that 2.850 shares of the stock had already been purchased; 2.850 shares of the stock at $47 a share would amount to $133,950. It is self-evident that plaintiff could not have understood that he was buying all these shares of stock for $25,000. The check was obviously sent as part of the purchase price of this block of stock.

Plaintiff’s counsel say that defendant, when he received the check, should not have intrusted it to the credit of a pool account with the broker without plaintiff’s approval, and that when defendant did this it was a wrongful conversion of the check. This is contrary to the clear intent and interpretation of the telegram. The check forwarded was intended to transfer to the credit of defendant $25,000, to be applied on account of the purchase of shares of stock. Defendant did nothing with the check that he was not authorized to do. There were no instructions to defendant as to how he should purchase the stock, and plaintiff was not concerned as to the manner in which his check was used. He was only concerned that it should be used in the purchase of stock of the corporation with which he was connected, and this was done. In this action of trover plaintiff must show that defendant has converted the check for $25,000; the evidence that it was used by defendant in the purchase of stock as agreed upon negatives any conversion — an essential fact necessary to support an action of trover.

But, says counsel for plaintiff, the evidence tends to show that this stock was bought upon a margin with a broker’s office and that this was contrary to instructions of the plaintiff. The general rule is that where an agent disposes of the property of his principal in accordance with his authority but in a different manner than as instructed, and the default lies merely in the performance of that which he was to do, he is not liable for conversion of the property but only in an action for damages on account of the misconduct. Mechem on Agency (2nd ed.) p. 917. In Sarjeant v. Blunt, 16 Johnson (N. Y.) 74, defendant was intrusted with a chronometer, to be sold at a certain price; defendant sold at a less price; plaintiff brought an action of trover. It was held that the selling was not a conversion although it was a breach of duty, and that an action of trover would not lie. In McMorris v. Simpson, 21 Wendell (N. Y.) 610, the defendant was intrusted with certain merchandise to sell in New York; he carried the goods to Delaware and there negotiated a sale; plaintiff brought an action in trover. The court held trover would not lie, the court saying, “There must ... be an entire departure from his authority before this action . . . can be maintained.” Among other cases involving similar facts where it was held that trover would not lie are Bourquin v. Atlanta State Bank, 107 Neb. 811; Loveless v. Fowler, 79 Ga. 134; Sturges v. Keith, 57 Ill. 451; Race v. Chandler, 15 Ill. App. 532; Woods Machine Co. v. Woodcock, 43 Wash. 317; Minneapolis Trust Co. v. Mather, 181 N. Y. 205. At most, the evi-donee may have shown that defendant departed somewhat from his instructions not to huy on a margin, although the evidence as to this is indefinite, but this was a failure in the manner of performance and not in the performance of what he was to do, namely, buy the stock.

Plaintiff charges that defendant wrongfully converted the check for $25,000. Doering v. Shadburne, 259 Ill. App. 577, was an action of case, not of trover; plaintiff had delivered to defendant a check payable to the defendant, with instructions to purchase securities for plaintiff; defendant cashed the check but failed to purchase the securities. The court held that defendant did not embezzle the check as his possession of it was lawful and he had a right to cash it; the check was merely the means by which the money was procured; if plaintiff had charged that defendant had embezzled the check he would have failed to make out a prima facie case for the reason that such an allegation would not have been sustained by the evidence. (Certiorari was denied by the Supreme Court.) This language is applicable in the present case. The check was made payable to defendant and mailed to him. It was merely the means by which plaintiff reimbursed defendant for the price of the securities purchased.

Following the uniform decisions where this question has been presented, we are of the opinion that the court properly found that plaintiff could not maintain his action.

Although counsel for defendant does not make the argument, yet the evidence tends to support the conclusion that plaintiff could not recover in any action. His evidence is that he contributed his money as a participant in a “pool.” The term “pool” means a surrender of certain individual rights and powers to the common holder for the benefit of all, on the theory that the accruing benefits gained by the joint venture outweigh the individual rights surrendered. Burley Tobacco Society v. Monroe, 148 Ky. 289. It may be plausibly argued that when plaintiff knowingly entered into the pool he surrendered to the defendant, the common buyer for all, the right to control the details of the manner in which defendant should purchase the stock. As this phase has not been argued we only suggest the point.

Plaintiff argues that the court erred in overruling his demurrer to defendant’s plea of the statute of limitations to the second count of the complaint. The second count was in trover for the conversion of the stock; the count was filed April 18, 1935; the conversion of the stock was alleged to have taken place November 2,1929, more than five years — the statutory limit — prior to the filing of that count. Plaintiff argues that under section 39 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, If 167, this second count is substantially the same as that set up in his original declaration. We do not see how it can be said that where the cause of an action in trover is for the conversion of a check, that this is substantially the same cause of action as one for the conversion of shares of stock. Among the many cases indicating that these are different causes of action are Fish v. Farwell, 160 Ill. 236; Heffron v. Rochester German Ins. Co., 220 Ill. 514; Borrow v. Chicago, B. & Q. R. Co., 206 Ill. App. 287; Richter v. Michigan Mut. Life Ins. Co., 66 Ill. App. 606. We have examined the cases cited by plaintiff in support of the proposition that the action for conversion of the stock is substantially the same as an action for the conversion of the check, but none of the cited cases tend to support this. Moreover, plaintiff’s second count alleged the conversion of 2,850 shares of stock, which cannot arise out of the transaction claimed in the first count, of a conversion of a check for $25,000 because, as shown by plaintiff’s evidence, the value of 2,850 shares of stock, said to be converted in the second count, is $133,950. In any event, for the same reasons that the evidence will not support the action of trover in the first count, so neither will it support the second count.

We find no convincing reason to disagree with the conclusion of the trial court, and the judgment is affirmed.

Affirmed.

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


author: Mr. Presiding Justice Davis

text:
    William C. Burley et al., Appellants, v. Harry E. Barber et al., Appellees.
    Gen. No. 8,974.
    Opinion filed June 3, 1936.
    Rehearing denied October 6, 1936.

      McCarthy & Toomey, of Chicago, and James T. Whitley, of Decatur, for appellants; Frank A. McCarthy, John E. Toomey and James C. O’Brien, Jr., of Chicago, of counsel.
    W. J. Carey and S. Everett Wilson, both of Decatur, for appellees.
   Mr. Presiding Justice Davis

delivered the opinion of the court.

The city of Decatur, Illinois, adopted the commission form of government on January 19, 1911, and at the time of the filing of the petition herein, and prior thereto, had a population of not less than 7,000 and not more than 200,000, and an act of the legislature to provide for the appointment of a board of fire and police commissioners in all cities coming within such limits of population and prescribing the duties and powers of such board was in full force and effect. Prior to April 16,1935, a certain number of legal voters of said city, and more than 20 per cent of the legal votes cast at the last preceding general municipal election, petitioned the proper officials of said city to submit to the voters at the next succeeding regular municipal election the question as to whether the city of Decatur should be subject to the provisions of said statute. Ch. 24, ¶¶ 958-977, Ill. State Bar Stats. 1935 (ch. 24, Smith-Hurd Ill. Ann. St., secs. 843-860).

On April 16, 1935, a majority of the voters at the municipal election held on that day voted to adopt the provisions of said statute, and the city council of said city canvassed the returns of said election and certified, on April 19, 1935, that a majority of all the votes cast was in favor of the adoption of said proposition. At said same election Harry E. Barber was duly elected mayor of said city, and Walter Hugh, John Rehfelt, Beecher Hughley and Ralph G. Long were duly elected commissioners.

The mayor and city council caused to be dropped from the police department pay roll William C. Bur-ley and 13 other persons, petitioners and appellants herein, and discharged them as policemen of said city, and, on May 15, 1935, the city council appointed Othello Daley, George Flint and Orville S. Smith the board of fire and police commissioners of said city.

William C. Burley and the other petitioners and appellants herein filed their petition for a writ of mandamus, making Harry E. Barber, mayor, the council of the city of Decatur, Joshua S. Cooper, chief of police, and the board of fire and police commissioners of the city of Decatur, respondents.

Defendants filed their motion moving the court to dismiss said cause for the reasons that the complaint, as amended, is insufficient in law in the following particulars: that it fails to show that petitioners were officers de jure at the time of their dismissal; it fails to show a legally created and existing office that is designated as police officer; it does not show a legally created and existing office that is designated policeman or policemen; it fails to show that the number of policemen or police officers was ever fixed by ordinance or resolution of the city council; it does not allege that petitioners were ever reappointed and qualified after their first appointment, as required by the city ordinance set forth in said petition or by the Cities and Villages Act of the State of Illinois, Ill. State Bar Stats. 1935, ch. 24, ¶ 958 et seq.; it fails to show that any of defendants failed in their duties or did anything illegal under the Fire and Police Commission Act, nor does it show that petitioners were officers or members of the police department of the city of Decatur more than one year prior to the passage of the Fire and Police Commissioners Act, Ill. State Bar Stats. 1935, ch. 24, ¶¶ 958-977, and entitled to be discharged only for canse after trial upon written charges by the fire and police commission.

On a hearing of said motion it was ordered by the; court that said motion be allowed and the petition and amendment thereto was dismissed.

The petitioners alleged that on November 21, 1877, the city council of Decatur passed and approved an ordinance organizing and establishing the police department of the city of Decatur; that on November 15, 1900, it passed the following ordinance, which, among other things, created the office of city marshal and defined his duties, and created the office of captain of police and defined his duties, and then provided as follows:

Police Department.

The mayor by and with the advice and consent of the city council shall annually appoint such number of policemen as the council may by ordinance or resolution determine to he necessary, who shall hold their offices for one year, or until their successors are appointed and qualified as hereinafter provided. The mayor and city council may, at any time, fill any vacancies that may occur in the police force. Then follows a provision requiring such policemen to take an oath and give a bond, and prescribes their duties.

Petitioners further allege, on the 19th of April, 1935, and for more than one year prior thereto, they, and each of the petitioners, were duly appointed and qualified and acting members of the police department of said city of Decatur and as such were subject to all the restrictions and entitled to all of the benefits under said act; that among the provisions of said act were matters and things contained in section 12 thereof, which provided that petitioners might only be discharged from their positions for cause and upon written charges and after an opportunity to be heard in their individual defense, and that no person other than the commissioners mentioned in said act had the right, power, authority or jurisdiction to discharge your petitioners from their positions as police,, officers.

The petition further alleges that the mayor and city council unlawfully usurped the right of the board of fire and police commissioners; that at the time of the discharge of petitioners the mayor and city council had no jurisdiction over them and had no right, power or authority to discharge or drop their names from the police pay rolls of said city; that each of the petitioners had been continually employed as members of the police department of said city for more than one year prior to the adoption of the act concerning the board of fire and police commissioners; that the petitioners were removed and discharged as policemen without cause, without written charges and without any opportunity to be heard in their own defense and were barred of their legal rights as provided by said act with reference to the adoption of the law with regard to the board of fire and police commissioners.

The petition further alleges that, by reason of the facts contained therein, petitioners-had been denied their legal rights; that they had been and are now denied their rights to exercise the functions and duties of policemen of said city and to enjoy and receive the salary pertaining to said office; that the petitioners have been denied equal protection of the law; that they were kept out of said offices, to which they are legally entitled; that the petitioners, and each of them, are entitled, as members of the police department of said city, to all of the benefits and protection afforded by the after-mentioned statute; and particularly to the protection and benefit of said act governing the removal or discharge from their positions.

It is contended by appellants that they, for more than a year prior to the adoption of the Fire and Police Commission Act were police officers and that if petitioners were members of .the police department and were de jure police officers at the time of the adoption of the act they were entitled to continue in office until written charges were preferred against them and until they were afforded an opportunity to present their defense before being* removed.

It is further contended that the ordinances of the city of Decatur created the office of policemen; that under such ordinances the petitioners were de jure officers of the city of Decatur, yet it is admitted by petitioners that if petitioners were merely employees of the city, the provisions of the Fire and Police Commission Act would not apply and they could be dismissed at the will or whim of the mayor and city council.

It is also contended by petitioners that the legislature intended by the provisions of ch. 24, ¶ 969, Ill. State Bar Stats. 1935 (sec. 854, ch. 24, Smith-Hurd Ill. Ann. Stats.) that all members of the police department who had been such for one year prior to the adoption of the act by the city came within the terms of section 12 of the act; that the words, “who shall have been such for more than one year prior to the passage of this Act,” should be construed to mean “who shall have been such for more than one year prior to the adoption of this Act. ’ ’

This act Avas originally passed by the legislature in 1903. Section 12 of the act provides, among other things, that no officers or members of the fire or police department of any such city who shall have been such for more than one year prior to the passage of the act or Avho shall have been appointed under the rules and examination proAdded for by this act shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his oaaui defense.

The intent of the legislature is clear, and only such officers or members of the police department who have been such for more than one year prior to the passage of the act by the legislature, or who had been appointed under the rules and examination provided for by the act, could not be removed or discharged except for cause, and upon written charges, and after an opportunity to be heard in their own defense, and the contention of the petitioners that the language, “who shall have been such for more than one year prior to the passage of the Act,” should be construed to mean “who shall have been such for more than one year prior to the adoption of this Act, ’ ’ is without merit.

The city of Decatur never created the office of police officers or policemen. There is an ordinance of said city which provides that: The mayor, by and with the advice and consent of the city council, shall annually appoint such number of policemen as the council may by ordinance or resolution determine to be necessary, who shall hold their office for one year, or until their successors are appointed and qualified as hereinafter provided. The language of this ordinance did not create the office of policemen. Moon v. Mayor, 214 Ill. 40.

As is said in that case: It is not sufficient to entitle appellants to the writ that it should appear from the petition merely that petitioners were cle facto police officers. Petitioners assert the right based upon their alleged official character to exercise the duties and authority of police officers and to receive the salary therefor. “The rule is, that when one claims rights as an officer by virtue of his office, it must appear that the office legally exists, and that he is lawfully entitled to hold the same and exercise the duties and powers thereof. He must show that he is an officer de jure. It is not enough that as to the public or as to third persons he is acting in an official character, and as to them his acts, in his official capacity, have the force and virtue of the acts of an officer tie jure.”

It was therefore essential that the petition should show that the petitioners were officers tie jure and not merely de facto policemen. It does not appear from the petition that the office which appellants claim the right to hold and exercise had or has any legal existence.

Sec. 12 of the act gave the petitioners no protection under the facts alleged in the. petition. Petitioners did not hold the office of policemen at least one year prior to the passage of the act; neither was it alleged that they were appointed under the rules and examination provided for in the act.

We are of opinion that petitioners have failed by their petition to show that they have a clear legal right to the relief sought. Neither the Fire and Police Commissioners Act by its provisions nor the allegations contained in the petition authorize the court to allow a peremptory mandamus against the defendants as prayed for in the petition.

The judgment of the circuit court of Macon county is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice

text:
    Lydia Hershe, Appellee, v. Estate of Peter Rinken-berger et al., Appellants.
    Gen. No. 8,991.
    Opinion filed June 3, 1936.
    Rehearing denied October 6, 1936.
    Lynn Sieberns, of Gridley, William R. Bach and Costigan & Wollrab, of Bloomington, for appellants.
    Whitmore & Whitmore, of Bloomington, for appel-lee.
   Mr. Presiding Justice

Davis delivered the opinion of the court.

Lydia Hershe filed a claim in the probate court of McLean county against the estate of Peter Rinken-berger, deceased, oh a $1,000 note, executed by deceased in his lifetime, and payable to said Lydia Hershe after his death. The claim was submitted to the court for trial without the intervention of a jury, and the claim was allowed in the sum of $1,000 and interest at five per cent from April 30, 1933, the date of the death of said Peter Rinkenberger.

Samuel Rinkenberger, executor of the last will and testament of Peter Rinkenberger, deceased, and Mary Tully, John Rinkenberger and Elizabeth Stoll prayed an appeal to the circuit court of McLean county from said judgment, which was allowed upon appellants filing their appeal bond in the sum of $2,100, which bond was duly filed and approved by the court and ordered to be accepted. Said cause came on for trial in the circuit court before the court, without a jury, and the court rendered judgment in favor of claimant for the sum of $1,124.44 and costs of suit. Mary Tully, acting in her own behalf and in the name of Samuel Rinkenberger, executor of the last will and testament of Peter Rinkenberger, deceased, gave notice of appeal from the judgment of the circuit court of McLean county.

On the trial of said cause it was stipulated by the parties that the evidence taken in the probate court on the hearing of said claim in question, including the original promissory note, might be taken as evidence in the trial of this appeal in this court, together with a claim filed simultaneously by Lydia Hershe against said estate, a certified copy of which claim is attached, and together with a certified copy of the order of the court allowing the claim for $345 in the probate court of McLean county, together with the agreement of the parties that said claim of $345 has been paid in full by the executor of said estate.

The claim filed was upon a promissory note, reading as follows:

$1000.00 September 1, 1931.
After my death I promise to pay to the order of Lydia Hershe $1000.00 with interest at-per cent per annum, at-, for value received.
Peter Rinkenberger.

From the stipulation it appears that Samuel Rin-kenberger testified upon behalf of the plaintiff, as follows: that Peter Rinkenberger was his father; that he had known Lydia Hershe 12 or 15 years; that his father died April 30, 1933; that Miss Lydia Hershe kept house for Mm. She had been there since 1927; his father was 83 years old at the time of his death. 1 remember when he executed the note on September 1, 1931, upon which Lydia Hershe filed a claim. I have seen claimant’s Exhibit “A,” and the handwriting on said note is mine. I wrote the note at my father’s request. My father signed the name Peter Rinkenberger at the bottom of the note in my presence. I was there when my father was sick, before he went to the hospital the last time. While I was in his room he told me he would like to give Miss Hershe $1,000 in recognition of her services while she was keeping house for him; he said he did not think he would be here long and he wanted to leave that much to her; he had a book of blank notes; the note was written in his bedroom, and no one was there but he and I. After it was signed he asked me to call Miss Hershe in the room, and she came in and he handed the note to her and said he did not think he would be here very long and wanted to leave that much to her for her services while she had been there, above what her salary was. She took the note. I do not know whether or not she had any knowledge prior to the mailing of this note that it would be made. I don’t think so.

On cross-examination he testified that he was the executor of his father’s estate and had acted as his personal agent since October, 1929. Miss Hershe had begun work in his father’s home about 1927. About February, 1930, I made arrangements with her, at my father’s request, as to the amount of such services. It was $15 per week. I paid her regularly until 1932, in November, when I ran out of funds.. In September, 1931, she was being paid regularly at the rate of $15 a week. I do not know if it was regularly, or not, but there was no indebtedness standing out except maybe a week or two.

My father lived at Gridley at the time he instructed me to draw up the note. He was operated upon in Peoria shortly after that, — four or five days. My father said he would like to give her $1,000 in recognition of her services and did not think he would be with us much longer. He made this statement when I drew up the note and also when he handed the note to Miss Hershe.

In addition to the above evidence the record showed that a claim was allowed in favor of Miss Hershe for the sum of $345, being for a period of 23 weeks at $15 a week, as per agreement with deceased, for labor performed, which claim was paid by the executor of said estate.

Appellant urged that the court erred in allowing the claim upon the note because there was no legal consideration; that there was no legal liability.

It is insisted by appellee that absence of consideration is an affirmative defense and appellant failed to show, by a preponderance of the evidence, that there was no consideration; that Peter Rinkenberger, if alive, would be estopped from paying the note as a gift, and such estoppel extends to his heirs and representatives.

Appellee, in making her claim in the probate court, introduced the original note in evidence and called Samuel Rinkenberger, son of and executor of the estate of Peter Rinkenberger, deceased, as a witness in her behalf and is bound by his testimony; he testified on November 14, 1933.

On the trial of this cause in the circuit court it was stipulated, on October 15,1935, that the evidence theretofore taken before the probate court on the hearing of the claim might be taken as the evidence in the trial of the appeal, and the testimony of Samuel Rinken-berger, son of and executor of the estate of decedent, was read in evidence; and it was not stipulated that such witness was to be examined as if under cross-examination at the instance of the plaintiff; neither did claimant offer any counter-testimony to rebut the testimony given by said Samuel Einkenberger, and his testimony stands uncontradicted.

The testimony of the son is that he was in his father’s room before.he went to the hospital the last time, and his father told him he would like to give Miss Hershe $1,000 in recognition of her services while she was keeping house for him; his father said he did not think he would be here very long, and he wanted to leave that much to her. After his father handed the note to Miss Hershe, he said he did not think he would be here very long and he wanted to leave that much to her for her services while she had been there, above what her salary was.

We have carefully considered the evidence and suggestions, offered on behalf of the parties, and from the evidence it is obvious that the note was made without consideration; it was an attempt to make a gift, and a gift inter vivos must be complete to be a valid gift, and it is held that this does not result when the gift is attempted to be made by the execution and delivery of a promissory note, and that the donee cannot establish a claim against the estate of the donor based upon such promissory note, for which there was no consideration. Kelley v. Dyer, 359 Ill. 46.

It is well settled law in Illinois that a promissory note intended as a gift is without consideration. Stump v. Dudley, 207 Ill. App. 587.

The judgment of the circuit court is therefore reversed, with a finding of fact to be incorporated in the record of this court, that the note upon which the claim of appellee was based was a mere promise to make a gift and was without consideration.

Reversed with finding of fact.