author: Mr. Justice Store

text:
    Martha Paris, Appellee, v. East St. Louis Railway Company, Appellant.

      Opinion filed June 4, 1934.
    Farmer & Klihgel, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Justice Store

delivered the opinion of the court.

The defendant below appeals from a judgment of the circuit court of St. Clair county awarding the plaintiff below damages of $500 in an action for negligence.

Defendant moved in arrest of judgment upon the ground that neither count of the declaration stated a cause of action. The denial of this motion is assigned as error.

Count one of the declaration alleged that the defendant was a common carrier of passengers, engaged in the business of carrying passengers for hire, by means of motorbuses which the defendant operated over the streets of the City of East St. Louis, and particularly over Market avenue and Bond avenue in the said city; that on May 14, 1932, at 10:30 p. m. plaintiff became a passenger on one of the defendant’s motorbuses and paid her fare; that as the said bus was traveling west on Bond avenue, after it had passed Eighteenth street and before reaching Seventeenth street plaintiff gave the usual signal to stop; that the defendant maintained regular stopping places and marked the stop between Eighteenth street and Seventeenth street with a sign on the north side of Bond avenue just east of the intersection of Bond avenue and Seventeenth street; that because of the darkness of the night plaintiff was unaware of the fact that the bus driver drove the bus about 100 feet past the regular bus stop; that the bus driver did know or should have known that he did not stop at the regular bus stop; that the bus driver carelessly and negligently stopped the bus 100 feet beyond the designated stopping place and in the middle of the street; that while the plaintiff with due care and caution for her own safety was attempting to alight from the bus, she was struck by an automobile traveling in a westerly direction with the bus and on the north side of the bus; and that as a result of the combined negligence of the defendant and the driver of the automobile plaintiff was knocked from the bus step and greatly injured.

The second count was substantially the same as the first except that it alleged that the bus driver negligently failed to drive the bus to the curb, and stopped the bus in the middle of the street, plaintiff having no means of knowing that the bus had not been driven near the curb.

Defendant did not demur to the declaration, but entered a plea of not guilty.

Defendant’s specific objections to the declaration are that neither count states facts showing any duty which the defendant violated; that on the facts stated defendant was not bound to anticipate that an automobile driver would violate the law by passing on the right side of the bus and by failing to stop 10 feet behind the stopped bus.; that there is not any duty on defendant as a matter of law to have its buses driven to the curb in discharging passengers; and that there are no facts stated showing that the action of the bus driver was .the proximate cause .of the injury.

All’that isurequi'red of a declaration is that it fairly present an issue upon the question of negligence. At this stage of the proceedings, the question of the suffieiency of the declaration having been first raised on motion in arrest, every reasonable intendment of the pleadings is to be taken in favor of the pleader. Gerke v. Fancher, 158 Ill. 375, 380.

A declaration which states facts fairly raising a question for decision by a jury on the existence of a duty, violation of that duty, injury to plaintiff because of that violation, and due care by plaintiff, is a sufficient declaration as against the motion here presented by appellant. In our opinion each of the counts of the declaration in this case contains allegations sufficient to raise an issue of fact for the jury on each of the essentials of a case, to advise the defendant and the jury fairly what is to be tried, and to serve all the purposes of a declaration.

The cases cited by the defendant with respect to the duty of those operating street cars must be applied with reservations to the case of one operating motor-buses. The principle of law elementary to this situation requires of the carrier the highest degree of care reasonably consistent with practical operation of the carrier. Chicago City Ry. Co. v. Pural, 224 Ill. 324, 328, 329. The carrier is required to provide a reasonably safe opportunity for the passenger to alight. Griswold v. Chicago Rys. Co., 339 Ill. 94, 98. A street car cannot be operated so as to discharge passengers at the curb. A bus can be so operated and ordinarily is so operated. Such operation is not only the most practical way of preventing automobiles from driving between the bus and the curb, but it is also the effective way to warn automobile drivers that the bus is about to discharge passengers. Conceding that no duty imposed by law requires all bus stops to be made at curbings, we think this record presents a proper issue of negligence for the jury, whether this bus should have stopped at the curb on the trip in dispute. The declaration raises that issue by its allegations, and even though on demurrer to these allegations defendant would have prevailed because the duty on appellant in the second count is overstated, the declaration should not be held, on that account, insufficient to sustain a verdict, on a motion in arrest of judgment.

Whether a defendant must anticipate the illegal acts of third persons depends largely upon the circumstances of the case. It is a question whether under the circumstances a reasonably prudent man would anticipate the possibility of the particular danger and take steps to guard against it. 45 C. J. 936. We think it is a proper question for the jury whether under the circumstances the driver of the bus might reasonably have anticipated that automobile drivers would pass the bus on the right-hand side. We cannot say that as a matter of law this violation of the traffic "laws could not have been anticipated. The declaration clearly raised that issue.

While no statute requires a motorbus carrier to discharge passengers at the curb, and it is true that cars may be parked along the curb, nevertheless a question of fact may be presented whether proper care for the safety of passengers requires that a particular bus should be driven to the curb when it is reasonably convenient to do so on a particular occasion. This, as we consider, is the question which was presented and tried in the instant suit.

It is next objected that the averments of the declaration do not demonstrate that the failure to pull over to the curb was the proximate cause of the injury. The declaration does allege that the driver negligently failed to stop at the proper place, that the passenger was injured while attempting to alight in the exposed place where the bus was stopped, and that the injury was caused by the combined negligence of the driver of the bus and the driver of the automobile. This fairly raises a contention and issue that the negligence of the bus driver was the proximate cause of the injury to appellee. It charges that appellant deposited appellee, not at the usual and expected spot, but in the exposed middle of the pavement, in the path of traffic, at night, and that appellee was hit because of this negligence of appellant and the negligence of an automobile driver. “Where an injury occurs through the concurrent negligence of two persons and would not have happened in the absence of either, the negligence of both is the proximate cause of the accident and both are answerable. 22 R. C. L. 130. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against either or all of the responsible persons; 45 C. J. 924. . . . The mere fact that the injury would not have happened but for the negligence of a third party is not sufficient to exonerate the defendant; Sullivan v. Ohlhaver Co., 291 Ill. 359. Where an injury proceeds from two causes operating together, the party putting in motion one of them is liable as though it were the sole cause; Fisher v. C. R. I. & P. Ry. Co., 290 Ill. 49. . . . If the occurrence of an intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury.” '(Votrian v. Quick, 271 Ill. App. 259, 262.)

Upon the evidence presented here, and under this declaration, the jury might conclude, within their province, that the conduct of defendant’s bus driver was a proximate cause of plaintiff’s injury, if they believed that it was an element without which plaintiff would not have been struck, even though negligence by another was necessary to be added to the conduct of the defendant, in order that the injury to plaintiff might result.

The uncontradicted evidence definitely supports the material charges in the declaration in all matters except the instant at which plaintiff was struck, and the exact distance between the stopped bus and the curb at the time of the accident, and the distance between the stop sign and the place where the bus stopped.

There is a conflict in the testimony concerning whether plaintiff was alighting from the bus or was two steps away from the bus with the door closed, when she was struck. The testimony of witnesses as to the distance between the bus and the curb varies from 6 to 15 feet, but all testify that there was room for a rapidly moving automobile to pass. The testimony varies as to the distance the bus ran past the stop sign. The bus driver states that he stopped at the intersection of Bond avenue and Seventeenth street which would be 50 feet beyond the stop. We cannot say, as a matter of law, that the verdict would have been improper had the jury found the facts as stated by the defendant’s witnesses. It is not true that the passenger carrier relation terminates in every case the instant the passenger is clear of the vehicle. For an obvious illustration see Griswold v. Chicago Rys. Co., 339 Ill. 94.

Defendant objects to the refusal of the court to give defendant’s instructions 1, 2, 3, 4, and 5, and to the giving of plaintiff’s instructions 2, 3, 4, and 5.

Defendant’s refused instruction No. 1 stated that if the plaintiff alighted safely from the bus and was afterwards struck, then the jury should find the defendant not guilty. Defendant’s refused instruction No. 5 contained in substance the same charge with the addition that if the plaintiff was on the street safely and away from the bus when she was struck the jury should find the defendant not guilty. We believe that defendant’s given instruction No. 1 covers the situation even more favorably to the defendant than the refused instructions, and perhaps more favorably than defendant was entitled to. The court instructed as follows:

“The Court instructs the jury that a common carrier of passengers, such as the East St. Louis Railway Company at the time of the operation of its bus line complained of in this suit, is not a guarantor of the safety of passengers; and you are further instructed that if you believe from the evidence that the plaintiff, Martha Paris, had alighted from the defendant’s bus and was safely on the street before being struck by the following* automobile, if you believe from the evidence she was struck, then you are instructed that the relation of passenger and carrier between the defendant Railway Company and the plaintiff Martha Paris had ceased, and the company did not owe her the duty to see that she was safely up on the sidewalk at and immediately before the time of her injury, and if you find such facts from the evidence then you should find the defendant not guilty.”

The court gave a similar instruction further emphasizing* the termination of the passenger carrier relation in defendant’s instruction No. 3 as given.

Defendant’s refused instruction No. 2 stated that the law did not require a carrier to drive its motorbus to the curb to discharge its passengers. We think defendant’s given instruction No. 1 above quoted stated all that defendant was entitled to have stated to the jury in this regard. The refused instruction would tell the jury that it was never the duty of the carrier to deposit passengers at the curbing*. In this case we think the instruction asked would have been an invasion of the province of the jury.

Defendant’s refused instruction No. 4 emphasized the fact that recovery can be had on the negligence charged in the declaration and on no other negligence. We think defendant’s given instruction No. 5 covered this point fairly. It was:

“The mere fact that an accident occurred, and that the plaintiff was injured, of itself raises no presumption of negligence or liability on the part of the defendant for such injury. Negligence like any other material fact, must be alleged and proved by the plaintiff as alleged, by a preponderance of the evidence, and even if you believe from the evidence that the plaintiff received the injuries complained of, yet if you further believe from the evidence that the plaintiff has not proved by a preponderance of the evidence that she was injured by the negligence of the defendant, as charged in her declaration, then the plaintiff cannot recover, and your verdict must be for the defendant.”

. Defendant’s refused instruction No. 3 stated that if the accident were caused entirely by events outside of the control of defendant and by action of the driver of the automobile which was unlawful and which acts were the sole cause of the injury, then the defendant should be found not guilty. Defendant’s refused instruction above was covered by defendant’s given instruction No. 2:

“The Court instructs the jury that if you believe from the evidence that the motorbus of defendant on which plaintiff was a passenger had been driven ahead of the vehicle which came into collision with plaintiff; and if you further believe from the evidence that such vehicle or automobile which collided with the plaintiff, if you believe from the evidence that it did that, was traveling in the same direction as defendant’s motor-bus, and in the rear of it, then you are instructed that such automobile had no right to pass the bus ahead of it on the right-hand side, if you believe that it did that, but must pass such bus, if at all, on the left-hand side; and if you further believe from the evidence that said automobile which came into collision with the plaintiff unlawfully passed on the right side of defendant’s bus and collided with and injured the plaintiff as complained of in her declaration in this cause, and that this was the sole cause of the injury to the plaintiff, then you should find the defendant Railway Company not guilty. ’ ’

We think that except as to defendant’s refused instruction No. 4, all the refused instructions might fairly be rejected as abstract and likely to confuse as applied to this case.

The court is not required to duplicate the substance of instructions given for either party. (Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150.) We think the charges were on the whole fairly given, and if erroneous they were so in being favorable to the defendant.

While it is not advisable as a matter of practice we do not find any harmful error in the fact that the court gave two instructions for the plaintiff defining due care in substantially the same language.

Plaintiff’s given instruction No. 4 defined the duty of a carrier with respect to persons riding thereon and alighting therefrom. Defendant’s objection is that the instruction assumes that plaintiff was riding on the bus when injured. We think not. There was some evidence tending to show that plaintiff was injured while alighting. Plaintiff was entitled to instructions covering this theory of the facts.

Defendant objects to plaintiff’s given instruction No. 5 on the ground that it assumes that there was combined negligence between defendant and the driver of the automobile. The instructions preceded the objected portion with “if you further believe from the greater weight of the evidence” and followed it with, “if the same is shown by the evidence.” We do not believe that it was faulty in assuming facts.

We find no error in the trial of the cause and the judgment is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    R. W. Goodale and Myrtle L. Goodale, Appellees, v. Midwest Dairy Products Corporation, Appellant.

      Opinion filed June 4, 1934.
    Stevens & Herndon and John L. Kagy, for appellant.
    June C. Smith, Wham & Wham and Hugh V. Murray, Jr., for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

Prior to April 1, 1927, appellee, R. W. G-oodale, was the owner of an ice cream, soda water, bottling and dairy products business in Centralia, Illinois. He operated said business in said city and the territory adjacent thereto within a radius of 150 miles. On March 16, 1927, the parties hereto entered into a written contract for the sale by appellee to appellant of said business, good will, etc. Said contract after making representations as to title, power to convey, minor liens, taxes, bills receivable, examinations by attorneys, etc., none of which is questioned here, proceeds as follows:

“4. In payment for the property herein agreed to be conveyed, purchaser agrees, subject to all provisions of this agreement, upon receipt of proper conveyances thereof, to pay to the vendor, as full purchase price for the same, the sum of Eighty Thousand ($80,000.00) Dollars, to be paid as follows: Twenty Thousand ($20,000.00) Dollars in cash and Six Hundred (600) shares of the par value of One Hundred ($100.00) Dollars each of the preferred capital stock of the Midwest Dairy Products Corporation.

‘5. Possession of said property and delivery of said instruments of conveyance and payments of the aforesaid consideration shall be made April 1, 1927, All instruments of conveyance shall be in form approved by purchaser’s attorney and shall include necessary or proper warranty deeds, bills of sale, assignments and/or other instruments of conveyance.

“6. In consideration of the conveyance herein agreed to be made and of the covenants and agreements herein made on the part of the vendor to be kept and performed, purchaser agrees that upon said sale and purchase being consummated in accordance with the terms of this agreement, it will on the 1st day of April in 1928, purchase from vendor at par value plus dividends accrued and unpaid, one hundred fifty (150) shares of said preferred capital stock and will on April 1st of each of the years 1929, 1930 and 1931 also purchase from vendor a like number of shares of said preferred capital stock or par value plus dividends accrued and unpaid.

“7. In consideration of the conveyance herein agreed to be made and of the' covenants and agreements on the part of vendor to be kept and performed, purchaser agrees that simultaneously with said purchase and sale the purchaser will execute and deliver to vendor a contract in form to be approved by vend- or’s attorney for the employment by purchaser of vendor in purchaser’s business for a period of one year at a salary of Five Thousand ($5,000.00) Dollars per annum.

“8. Vendor agrees that to secure to the purchaser the said business of vendor and the good will thereof, hereby agreed to be conveyed, it is necessary that purchaser be fully protected from competition in said business by or on behalf of vendor in the territory hereinabove described as tributary to said business; and vendor, in further consideration of the premises and agreements by purchaser herein contained, and for the purpose of enabling the purchaser, its successors and/or assigns to acquire, enter upon, manage, conduct, continue, carry on and enjoy the business herein agreed to be conveyed and the good will thereof, does covenant and agree to and with the purchaser that upon consummation of said sale in accordance with the terms of this agreement he will not at any time during the period of fifteen (15) years from and after April 1, 1927, directly or indirectly set up, exercise, conduct or be engaged, employed or interested in, or carry on, in said territory or any part thereof, any occupation, interest or profession, similar to or of the same nature with the business hereby agreed to be conveyed and the good will thereof, nor set up, make, carry on or encourage, or be engaged or interested in, any opposition of any kind whatsoever to said business, or become an employe of any person, firm, or corporation engaged in any opposition in said business.

“9. It is expressly understood and agreed that if vendor shall tender transfer and delivery of the property hereby agreed to be conveyed in full accordance with the terms and conditions herein set forth, and purchaser shall fail or refuse to pay to vendor the consideration hereinabove stated in accordance with the terms of this agreement, the amount of the damages accruing to vendor thereby shall be the sum of Twenty Thousand ($20,000.00) Dollars.

On April 1, 1927, appellee delivered title to his premises and business to appellant and appellant paid the $20,000 to appellee and delivered to him the 600 shares of preferred stock described in the contract. The contracts having been thus consummated by performance of the parties, appellant proceeded to operate said business with appellee in charge as its sales manager. We are using the term appellee in the singular because the evidence shows that Myrtle L. Good-ale was made a party only because of the title to certain real estate being involved.

Later, on April 18, 1933, appellee brought suit in assumpsit against appellant for the value of the 600 shares of stock with their accumulations, which by sec. 6 of the contract appellant agreed to purchase.

The amended declaration consists of 10 counts— eight original and two additional. The first five counts are the common counts. The first alleged an indebtedness of the appellant to appellees on March 11, 1933, “in the sum of $65,000 for the purchase price of six hundred shares of preferred stock of the Midwest Dairy Products .Corporation, of the par value of $100 per share, plus accrued dividends, before that time sold by plaintiffs to the defendant.” The second, third, fourth and fifth each alleged an indebtedness “in the sum of $16,000 for the purchase price of one hundred fifty shares of” such stock “sold by plaintiffs to the defendant,” and they differed from each other only in their respective dates of April 1 of the years 1928 to 1931, inclusive, when the indebtedness was alleged to have accrued.

The remaining three counts of the declaration as it stood at the time of the trial were each special.

The sixth alleged that on March 16, 1927, appellees “bargained and sold six hundred shares of the preferred capital stock of the Midwest Dairy Products Corporation, of the par value of $100 each, to the defendant” and that appellant had failed to pay appellees therefor in accordance with the terms of a written contract of that date, set forth in full in the count. The seventh alleged that on March 16, 1927, appellees “bargained and sold six hundred shares” of said preferred capital stock to appellant and that notwithstanding appellees’ tender of said stock and demand for payment made March 11,1933, appellant had failed to pay appellees therefor in accordance with the terms of said written contract, likewise set forth in full in this count. The eighth and last of the three special counts alleged that appellees' had accepted and received the stock as consideration for the performance of the obligations imposed by the written contract of March 16, 1927, also set forth in full in this count, and that on said date appellees “bargained and sold six hundred shares” of said stock to appellant, and that notwithstanding plaintiffs’ tender of the stock and demand for payment appellant had failed to pay appellees therefor in accordance with the terms of the written contract.

The first of the two additional counts, filed after trial on September 25, alleged a sale by appellees to appellant on March 16, 1927, of appellees’ property and business, for a purchase price consisting in part of 600 shares of appellant’s preferred capital stock, in accordance with the written contract of that date, set forth in full in the count; that thereafter in March of the following year appellant agreed with appellees that if appellees would not exercise the right given them under the written contract to require appellant to repurchase specific instalments of appellees’ stock on specific dates as specified in said written contract, appellant would carry out and perform that contract in all respects except as to time, and would purchase said 600 shares from appellees for the price and consideration fixed by the contract at any time appellees should request that such purchase be made; and that request and demand for purchase of the 600 shares had been made by appellees on March 11, 1933, with tender of the certificates of the stock.

The second additional count alleged a sale by appellees to appellant on March 16,1927, of appellees’ property and business for a purchase price consisting in part of the 600 shares of appellant’s preferred capital stock, in accordance with the written contract of that date, also set forth in full in,this count; that appellant induced appellees to accept the 600 shares to obtain a temporary extension of the time of payment of $60,000 of the consideration for the sale of appellees’ property; that thereafter in March, 1928, and prior to any time -fixed by said contract at which appellees might demand purchase by appellant of any of said stock, appellant agreed with appellees that if appellees would not exercise the right given them under the contract to require appellant to purchase the specific instalments of appellees’ stock on specific dates as specified in the contract, appellant would carry out and perform that contract in all respects, except as to time, and would purchase said 600 shares from appellees for the price and consideration fixed by the contract at any time appellees should request that such purchase be made; and that request and demand for purchase of the 600 shares had been made by appellees on March 11, 1933, with tender of the certificates of the stock.

To the amended declaration, appellant filed a plea of non-assumpsit. The case was tried on the issue thus made. While the case was under advisement, appellees by leave of court filed the two additional counts. To these two counts, appellants filed pleas of non-assumpsit and the five-year statute of limitations. The trial court awarded appellees judgment in the sum of $67,839.96. To reverse said judgment appellant appeals.

The controlling question in this case is the nature and character of that part of the contract between the parties which has to do with the repurchase of the 600 shares of stock. Was this an option contract or was it a firm contract binding alike upon the seller and the buyer? Was it such a contract as either party might compel specific performance of? If this was an option contract it was incumbent upon appellees to perform certain acts as a condition precedent to bringing this suit, i. e., presentment and demand for payment within the time prescribed. Appellees do not pretend to have thus performed. On the contrary they contend that such performance if it was necessary, was rendered unnecessary and excusable by the request of appellant.

An option is defined by onr courts as a right acquired by contract to accept or reject a present offer within a limited or reasonable time in the future. American and English Enc. of Law (2d Ed.) 924. Adams v. Peabody Coal Co., 230 Ill. 469, 473. Appellee for the consideration of his property received $20,000 in cash and the 600 shares of stock. That is not all he received. He also received a privilege, right, or option to sell said stock to appellant within a speck fied time at a specified price. He was not bound to accept this. He might do so. Appellant had no enforceable right to purchase this stock. Appellee had the right of election whether he would avail himself of the right which he acquired as a part of the consideration for the sale of his property or whether he would not. His status is thus placed within the scope of the above definition and in harmony with those authorities which afford illustration of optional contracts. Having an optional contract it was incumbent upon him to perform all necessary acts which would consummate a sale, within the time prescribed in his contract. It is conceded that he did not perform those acts. He excuses himself therefrom by saying that he forbore such acts at the behest of appellant by virtue of an oral agreement in and by which for a consideration, he extended time in which for appellant to pay the money and take up the stock in question. We shall deal with this oral agreement later. We are now concerned with a question of pleading. In the first eight counts of appellee’s declaration he alleges performance. Not only is there no evidence of performance of the condition precedent to transforming the optional contract into a sale but it is conceded by appellee that he did not perform those acts. The evidence in support of these counts consists of a reason or excuse why he did not perform. This, in itself, is an admission that he did not so perform, much less proof of performance. A declaration of performance is not supported by proof of the reason why performance was not made. The terms are inconsistent.

“There can be no recovery on a contract against one party whose performance is dependent on some act to be done or forborne by the other party unless the condition precedent has been fully or substantially performed by the plaintiff or he has averred and proved a sufficient excuse for non-performance.” Feder v. Midland Casualty Co., 316 Ill. 552; Miller v. Chicago & N. W. Ry. Co., 347 Ill. 487.

There being no allegation of waiver of performance in the first eight counts of the declaration, evidence to that effect ought not to have been admitted. Not only is such evidence not proof of performance as alleged in the' declaration, but it is not proof of anything averred in the declaration and therefore not competent evidence for any purpose. Far from being a harsh rule, this is a wise provision of the science of pleading. The defendant has a right to know definitely what he has to meet. He can only look to the declaration for this information. Holding as we do that the contract for the sale of this stock was an optional contract fraught with a condition precedent to the bringing of this suit, and there being no proof of the performance of this condition, it seems to us inescapable that there can be no recovery under the first eight counts of the declaration.

Appellee relies upon a further agreement as a reason why he did not demand payment from appellants within the time prescribed in the contract. There is a conflict of evidence on this phase of the case. Appellee testifies that he had a conversation with Hayes in March, 1928, in which the latter told him that they were considering the purchase of other properties, and that if those deals went through it would be hard for them to buy his preferred stock, that was due for payment April 1st; that Wineberg had made the statement that I would have to be paid on the due date; that he, appellee, laughed at that; that Hayes said he had told Wineberg that if he explained their activities, what they had accomplished etc., he was satisfied it could be managed with appellee; that in this conversation he explained to Hayes why he had the contract made as he did, that he would not take any action that would waive any rights in the payment coming due or any other payment; but that he did not need the money at that time, that it did not have to be paid on that date; that Hayes told Trim that he would not be waiving any rights in the contract at all, that Hayes said he would see to it personally that appellee was taken care of at all times; that the stock would be paid for on my demand.

Wineberg testified that prior to April 1st of each of the four years in question he asked appellee if he wished to have his stock taken up by the company and on each occasion appellee answered that he did not— that he was well satisfied.

Archie Lehn, treasurer of appellant, testified that he was present at a conversation in the spring of 1929 between Wineberg and Goodale when Wineberg asked Groodale if he wanted to redeem his stock April 1st; that Goodale said, “No, he was satisfied with his stock and wanted to keep it; that he was well satisfied with the company and wanted to go along with it.” That on the way to New York Goodale said he was afraid the National Dairy Company would retire his stock.

H. E. Strong, purchasing agent for appellant, testified that on the way to New York, appellee said he was glad he had not cashed in his stock. He would rather have it in a company he was interested in. In Mayfield, Kentucky, appellee said he had taken stock for his plant and that he was well satisfied. This was in March, 1931.

H. E. Stoner, superintendent, says he talked with appellee in Decatur in April, 1931; that appellee there said he had some stock in the Midwest Dairy Corporation and that he would not part with it. He thought it was a good investment.

W. B. Hayes, president and general manager of appellant, testified that he had a conversation with appellee sometime two or three weeks after April 1, 1928; that he had not discussed appellee’s stock with him prior to that time. On this occasion, appellee said that Charley Wham had raised the very devil with him for not cashing in his stock before April 1st; that he did not want to sell his stock; that he thought it was a good investment; that Wham had no right to tell him what to do with his stock. Witness further testified that he was present in the office of appellant just before the trip to New York; that appellee there said he was not much interested in the proposed trade or as to whether he sold his stock; that appellee repeated this statement in New York. Hayes further testified that in 1932 when the second loan was made, appellee said in the presence of Wineberg and Lehn that he was satisfied to go along with the company; that he would dig in and work harder than ever and if necessary would go down with the ship.

Appellee denies all these conversations.

The burden was upon appellee to establish the new agreement, extension, assurance or whatever the name, the influence which decided appellee to waive his rights under the contract, may be called. We are making-due allowance for those circumstances under which the smaller number of witnesses may furnish the preponderance of the evidence. Likewise are we taking into consideration all facts and circumstances in this record which seem to tend to corroborate appellee’s version of what actually took place but we can find no warrant for the conclusion that appellee has met the burden in this matter. Selamakos v. Victory Ice & Ice Cream Co., 246 Ill. App. 178; Huchette v. Williamson County Coal Co., 188 Ill. App. 321; Peaslee v. Glass, 61 Ill. 94. On the other hand there is corroborated testimony denied only by appellee, that on divers times and in various places appellee said that he was “satisfied with his stock.” “Glad he had it.” “Wanted to keep it.” etc.

Assuming, however, appellee’s version of what took place to be a plenary warrant for his failure to perform in the first instance, he would then have a right to insist upon appellant carrying out its agreement to buy his stock within the new time fixed by the oral extension. What was this new time fixed? It was “on his demand,” or “at any time hereafter.” This, being interpreted, means a reasonable time. Elliott on Contracts, sec. 54, Vol. 1, page 91; Estate Stove Co. v. Kenney, 234 Ill. App. 366; Quigley v. Macqueen & Co., 321 Ill. 124. It could not mean at any time hereafter without limit. Especially is this true in dealing with a subject matter so fluctuating and varying as stocks. The extension did not change the character of' the contract. If the first was optional, as we have held, the second was equally so. Kissack v. Bourke, 224 Ill. 352. In appellant’s own citation (Norton Iron Works v. Wilson Steel Products Co., 232 Ill. App. 523) this doctrine is held.

We have read with much interest appellee’s argument that the parties contemplated an entire cash payment of $80,000 and that the leaving of the stock with appellee was for the purpose of an extension of credit.

We find nothing in the record to justify that assertion. It is true that the California cases cited so hold in those particular cases but we know of no Illinois decision to that effect except in cases where the intention of the parties is manifest. Even then there is something to do. Appellee could not sit by and wait until the money was brought to him.

We are loath to reverse cases under the circumstances of this one but we cannot escape the conclusion that the trial court misapprehended the legal effect of this contract in view of what was done under it.

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

Reversed and remanded.


text:
    E. Harold Wineland, State’s Attorney, ex rel. William Abeln et al., Appellee, v. M. Huber, Inc. et al., Appellants.

      Opinion filed June 4, 1934.
    C. E. Feirich and H. D. McCollum, for appellant Southern Illinois & Kentucky R. Co.; E. C. Craig and V. W. Foster, of counsel.
    June C. Smith and Hugh V. Murray, Jr., for appellants M. Huber, Inc. et al.
    E. Harold Wineland, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On the 15th day of November, 1933, appellees filed in the circuit court of Clay county their bill in chancery, alleging that M. Huber, Inc., a corporation, with main offices in the City of Chicago, purchased, on May 1, 1930, a tract of land in Larkinsburg township, Clay county, Illinois, containing about 160 acres— describing the tract; that said tract lies along both sides of the Southern Illinois and Kentucky Railroad at a point where Dismal Creek is crossed by said railroad and that said tract is and has been under control of M. Huber, Inc. Said bill further alleges that all the relators, who are appellees, here reside within a radius of two and one-half miles of the point where said Dismal Creek is crossed by said railroad; that some of the premises owned by relators adjoin said Huber tract; that subsequent to May 1, 1930, the said M. Huber, Inc., commenced an unlawful use of said tract of land in such a way as to hinder, prejudice and damage relators in an irreparable manner — that is to say, appellants caused huge amounts of garbage, rubbish, trash, junk and decomposed vegetable and animal matter, animal and vegetable matter in the stage of decomposition from outside of said county, as petitioners believe from the City of Chicago, to be carried and transported to the tract of land in question and deposited thereon; that said rubbish, garbage, etc., was carried and transported to said tract over the Southern Illinois and Kentucky Railroad; that the defendant, M. Huber, Inc., owned and controlled two steam shovels with which said garbage and rubbish was dumped upon said tract of land and leveled thereon; that said rubbish and garbage was brought and distributed to said tract in innumerable quantities at different times and dates and now covers a considerable portion of the landscape upon the said tract of land; that the said rubbish and garbage, etc., is composed of all kinds of decomposed and decomposing vegetable and animal matter; that the carcasses of dogs, cats and other animals, tin cans, boots, rags and broken glass have been dumped there; that certain of the defendants are now in the employ of the said M. Huber, Inc., and have assisted in the disposing of the said rubbish and garbage upon said tract; that subsequent to the bringing of the said rubbish and garbage to the said tract it would be left to dry and burned by certain of the parties defendant.

That said tract has become a place for the congregation of undesirable persons of low and vicious instincts and habits, some of whom have continued to dwell upon said tract and whose means of existence is foraging and scavenging of the said rubbish and garbage, etc.; that violations of law have resulted therefrom and that on the 24th day of June, 1932, one William Burgiss, alias Getz, was murdered upon said tract by one Claude Sapp. At the time of the said murder the parties thereto were residing upon said tract with the knowledge of the said M. Huber, Inc.; that persons so foraging and scavenging upon the rubbish, garbage, etc., have disturbed the peace of the neighborhood and used lewd, obscene and blasphemous language to the hindrance and prejudice of the relators and their families.

That the rubbish and garbage aforesaid, since being deposited upon the said tract, has had numerous rains fall upon it which have caused minute portions of the rubbish, garbage, etc., to drain into Dismal Creek which runs along a point adjacent to the said rubbish, garbage, etc., and that said Dismal Creek as a result thereof has become polluted and poisoned to the damage, hindrance and prejudice of the relators and other landowners and occupants through whose land the said Dismal Creek runs; that the stench and filthy odors arising from the said garbage and rubbish, etc., has become unbearable to relators and other adjacent landowners and occupants; that said stench and odors have affected and impaired the health of relators and their families and the health and well-being of domestic animals owned and possessed by relators; that the smoke arising from the burning of said garbage, rubbish, etc., has descended upon the plants and vegetables of relators to the damage, prejudice and hindrance of relators; that an uncommon species of rat has infested the pile of rubbish, garbage, etc., and that said rats infest the barns and dwelling of relators and destroy the chickens and other fowls belonging to relators ; that as a result of said garbage, rubbish, etc., being piled upon the said tract of land, innumerable flies and insects have collected and are infesting said tract and the homes of relators to the damage, prejudice and hindrance of relators; that the said M. Huber, Inc., has often been requested to discontinue transporting and dumping of said garbage, rubbish, etc., upon said tract but he has refused to do so. That the said defendant, M. Huber, Inc., has wholly disregarded the rights of relators and that one' of its employees told one of the relators in disrespectful language that it was none of relator’s affairs as to what was done on said tract and further said to him that “if we feel like building a mountain of garbage on your land you hicks have got to like it.”

That for over a period of a year defendants have not carried garbage or other filthy material upon said tract and that by reason thereof the nauseating condition of the said rubbish, garbage, etc., already deposited there has become somewhat alleviated and the odors and stench and insects are not so distinct and pronounced as they were when the garbage, rubbish, etc., was deposited on said tract. However, petitioner is informed and believes that said M. Huber, Inc., intends to and will commence the dumping of more garbage, rubbish, etc., upon said tract of land on, to wit, Thursday, November 16, 1933; that your relators will thereby be without adequate remedy unless said defendants are restrained from carrying and dumping any more rubbish, garbage, etc., upon said tract of land; that the injury to the public health and safety of relators will be irreparable unless the dumping as aforesaid is restrained.

Said bill further alleges that as a result of said dumping of rubbish and garbage, etc., the value of the premises of relators has depreciated exceedingly and if the threatened grievance is permitted to continue to exist, said premises will still further depreciate in value and that the relators will be compelled to abandon the use of said premises as abodes for themselves and families.

A prayer for injunction to restrain further acts of depositing refuse upon said tract wqs made a part of seiid bilk

Said bill with its accompanying affidavits was presented on the same day to Hon. Wm. B. Wright, one of the judges of said court, who granted a temporary injunction in accordance with the prayer therein, without notice and without bond. The order for injunction is that appellants, their attorneys, officers, agents and servants be restrained from dumping, carrying upon, placing in such a way that it might be dumped upon, discharging or depositing any garbage, rubbish, filth, refuse or any material from any source on the tract of land in question, or from bringing in or causing to be brought in, until the further order of the court, to the said county for the purpose of depositing or discharging upon the said tract of land, any rubbish, garbage, filth or refuse of any kind or from any source. The writ of injunction follows the order.

On December 9, appellants filed their answers to the bill. In said answers, appellants M. Huber, Inc., Basil Cantrall, Jack Nichols, Frank Springer and Dick Singer admit the ownership of the real estate described in the bill and the control thereof. Further answering said appellants denied all the material allegations of said bill, and in addition thereto alleged as defenses that in the year 1929, the said M. Huber, Inc., entered into a contract with the City of Chicago to dispose of street sweepings and other rubbish accumulated and collected in the said city, consisting of tin cans, old shoes, boots, rags, paper, broken glass and other nonputrescible matter; that for the purpose of disposing of said rubbish the said M. Huber, Inc., purchased the tract of land in question; that said tract is located in a sparsely settled portion of Clay county in a community where there are few inhabitants and at a great distance from the dwelling houses and other buildings of the inhabitants of the community, which community is grown up with scrubby timber, brush and other vegetation ; that in order to handle and dispose of said rubbish it was necessary for the defendant, M. Hnber, Inc., to, and it did construct a plant for the loading and handling of the same in the City of Chicago, representing an investment of approximately $100,000; that said rubbish was collected by said city and delivered to the plant of the said defendant, M. Huber, Inc., therein where defendants loaded same on railroad coal cars and transported it to the said tract of land where it was unloaded in a deep depression or ravine far from the habitation of any of the relators; that in order to handle the disposition of such rubbish the said M. Huber, Inc., has invested a large amount of money at the point where said rubbish is unloaded, for the construction of railroad sidetracks and other equipment which is maintained by said M. Huber, Inc., at great expense; that in order to unload said rubbish on the real estate in question, the said M. Huber, Inc., employs a large number of men and the handling of said rubbish affords work and employment to a large number of the citizens of said community who would not otherwise be employed; that the operation of the dump thereby furnishes a substantial pay roll and livelihood for a large number of individuals residing in that community; that up to the time of the serving of the injunction the said At. Huber, Inc., had transported and unloaded at said dump approximately 12,000 carloads of rubbish and that it averages 28 cars per week, which furnishes regular and continuous employment to a large number of employees of said railroad, who would not otherwise be employed; that in handling and transporting such rubbish the railroad company uses open coal cars which have been transported to Chicago and to other points in the Middle West loaded with coal and these empty cars are then loaded with the rubbish which is transported to said dump, thus enabling the railroad company to secure revenue in the movement of said cars both ways from southern Illinois coal fields to the City of Chicago, and elsewhere.

That the people upon said dump are poor and without property or other means of support and for the purpose of enabling them to gain a livelihood and not become public charges or objects of charity the defendant, M. Huber, Inc., has permitted them to reside on said tract of land in the vicinity of said timber and to ply their vocation of salvaging from said rubbish, rags, scrap iron, glass and other salable material, by which they have been able to earn a living.

Further answering, defendants say that rubbish of the same kind and character has been used extensively for filling quarries and depressions in thickly populated localities and has not caused inconvenience to the inhabitants who reside within the vicinity where the same has been dumped; that "similar rubbish has been dumped for many years in certain depressions in the thickly populated residential sections of the City of Chicago; that 5,000 carloads of rubbish of the same composition was used to fill an abandoned quarry in the thickly populated residential section of the City of Kankakee and that same caused no disagreeable odors or other disadvantages to the citizens residing in the immediate community.

That the dump or point where said rubbish is dumped is practically in the center of said tract of land so that it is far removed from the land and property of others; that in the year 1929, the character of rubbish deposited on said dump was investigated by the Department of Health of the State of Illinois and that said department determined that said dump did not create or cause a nuisance.

Defendants further allege that the action in this case was not brought in good faith and not on account of the evil effects complained of but because of some imaginary private grievance which relators have against the defendant, M. Huber, Inc., because they have been refused permission to pick rags on said dump or have been unable to obtain employment with the said M. Huber, Inc.; that a number of said relators have from time to time worked for the said M. Huber, Inc., on said dump and during said time made no complaint of any offensive odors or conditions arising therefrom; that other of said relators have sought to induce the said M. Huber, Inc., to give them the exclusive privilege of picking rags and other salvage from said dump and to exclude all other persons from so doing and upon being unable to make such arrangements have set upon the unfounded claim that said dump is offensive; that the said complaints of said relators are imaginary grievances and not an account of any offensive odors or other disagreeable conditions existing in the neighborhood; that the said M. Huber, Inc., maintains a substantial pay roll and pays out same in wages to the residents of said community, most of which is paid to people who would not otherwise be able to earn a livelihood.

That the damages through the improvident issuance of said injunction without bond and without notice, have resulted not only to defendants but to the community at. large, because it has prevented various citizens of said community from following their employment.

The answer of the appellant, Southern Illinois and Kentucky Railroad Company, a corporation, admits and denies substantially the same allegations of the bill as are admitted and denied by the answer of the other appellants. In addition, this appellant describes its connection with the Illinois Central Railroad Company and alleges the magnitude of the Huber contract and its value to said Illinois Central Railroad Company. _

With their answers appellants filed a motion to dissolve the temporary injunction alleging that there is no equity on the face of the bill; that the material allegations of said bill are denied by their answers and affidavits filed therewith and will be further denied upon hearing of said motion; that it appears from said bill and the affidavits filed in connection therewith that the injunction was improvidently and improperly issued, because no sufficient or proper affidavits were filed, entitling appellees to the issuance of a temporary injunction without notice.; that it appears from said bill of complaint and the affidavits filed therewith that it was improper to grant an injunction thereon without bond.

A cross motion was made by appellees to strike from the files appellants’ motion to dissolve and also their answers, notices etc. This motion was denied. No cross error is assigned on this ruling.

On the hearing of said cause, the court modified the decree thereby enjoining and restraining appellees from dumping upon the said tract of land any separated or unseparated garbage or carcass or any dead matter of any other decomposed or putrescible animal or vegetable matter therefrom, or cans or containers filled or partly filled with like animal or vegetable matter or any putrescible or decomposed matter derived therefrom, or from bringing into Clay county from any source for the purpose of dumping upon said tract any separated or unseparated garbage or carcass of any dead animal, or any decomposed or putrescible animal or vegetable matter or any putrescible or decomposed matter derived therefrom, and from dumping any filthy matter whatever, including putrescible animal or vegetable matter or any putrescible or decomposed matter derived therefrom, within 300 yards of the channel of said Dismal Creek. Thereafter, the trial court denied the motion to dissolve. From this interlocutory order denying said motion appellants have appealed to this court, assigning as errors that the court erred in denying the motion, in refusing to sustain said motion, in continuing the injunction in effect as modified, in the admission and exclusion of evidence; that the order was contrary to the evidence in the case, that it appears from the face of the bill that it is not a suit to abate a public nuisance but is a suit of a private nature and the complainant as State’s attorney cannot maintain such suit; that said injunction was improvident and improperly granted without notice and without bond.

A motion to stay the proceeding pending this appeal was filed in this court and was taken with case.

Appellees raise two questions which must be disposed of before consideration of the merits of this case. (1) Should this appeal be brought, if, indeed, it may be brought at all, under sec. 123 of the Practice Act of 1907, Cahill’s St. 1931, ch. 110, TF122? Or should it be brought under sec. 78 of the Civil Practice Act, Cahill’s St. 1933, ch. 110, 11206? Were there ground for holding that this appeal should be presented under the old act, we should have to dismiss it as we are convinced that the weight of authority is to the effect that appeals from interlocutory orders denying motions to dissolve injunctions were not appealable under that act. It seems quite clear, however, from Bule 1 adopted by our Supreme Court at its December Term, 1933, in pursuance of the Civil Practice Act that any order entered after January 1, 1934, if appealable at all, is appealable under the provisions of the Civil Practice Act — excepting of course such matters as are without the scope of said act. The order in this case from which the appeal was taken was entered after the latter date . and therefore, if appealable, was appealable under" the new act, although the case was brought and in large measure tried before the new act became effective.

The second question is, is the order under-examination an appealable order within the purview of see. 78. of the Civil Practice Act! That section provides: “Whenever an interlocutory order or decree is entered granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, ... an appeal may be taken therefrom to the Appellate Court.” Cahill’s St. 1933, ch. 110, 206.

The language of this section seems broad enough to include any and all orders denying motions to dissolve-, whether they be entered by a judge in vacation or by a court in term time. Substantially the same language is used in section 123 of the Act of 1907. That section, however, was taken from the Act of June 14, 1887, which was enacted under the title: “An act to Provide for Appeals from interlocutory Orders, granting Injunctions or appointing Receivers. ” It is obvious, that although the language of the section is broad enough to include such appeals, it is too broad for its title. This is the theory of the cases, cited by appellee, to the effect that such appeals as this do not lie. Section 78 of the Civil Practice Act is not open to this objection — it having been enacted under the title “An act in relation to practice and procedure in Courts of Record. ’ ’ By virtue of the latter section the law now is that appeals lie from interlocutory orders refusing to dissolve injunctions, whereas they did not, formerly. This section also, in our judgment, includes all such orders whether made by a judge or by a court.

Appellants contend that there is that substantial conflict in the evidence which requires appellees to establish their rights at law before they are entitled to an injunction; also that leaving in effect this injunction will occasion greater injuries to defendants than will be occasioned to complainants by dissolving it. They also invoke the doctrine of laches. Appellees contend that the injuries set out in their bill are irreparable ; that those injuries involve loss of health, destruction of the means of subsistence, permanent ruin to property, the breathing of foul air, the ruin of natural watercourses, other invasions of public rights and the destruction of the ordinary physical comforts of ordinary persons.

Comment on some of the cases cited may furnish a proper background for the consideration of this case.

The case of Robb v. Village of LaGrange, 158 Ill. 21, cited by appellants merely holds that in that particular case, the evidence was not sufficient to constitute a nuisance and would not be so regarded unless there was an adjudication at law that the place was a nuisance. This case does not decide the general principle as appellants have argued. In addition this case refers to two other cases, viz., Dierks v. Commissioner of Highways, 142 Ill. 197, and Village of Dwight v. Hayes, 150 Ill. 273, citation in each of which our Supreme Court held that the discharge of sewage of a village into a stream of water running through complainants’ land was a nuisance and that the landowner was entitled to an injunction to abate it in the first instance.

The case of Sutton v. Findlay Cemetery Ass’n, 270 Ill. 10, is not in harmony with the application sought to be made of it. In that case the court among other things said, “Defendant insists that as a cemetery is not a nuisance per se but may or may not be a nuisance, according to circumstances, its character as such should have been first established by a judgment in an action at law before a court of equity would interfere, by injunction, to restrain or abate it. That this was formerly the rule, is undoubtedly true, but that rule has in more modern times not been strictly adhered to.” In this case an injunction was approved, enjoining the pollution of a stream although there was a dispute on the main facts in evidence. To the same effect is Barrett v. Mt. Greenwood Cemetery Ass’n, 159 Ill. 385.

In the ease of City of Pana v. Central Washed Coal Co., 260 Ill. 111, it was held that the circumstances of the case were such that a mandatory injunction should not issue to abate an alleged nuisance which meant the destruction of long established valuable property rights without there being first an adjudication at law of the question of nuisance. There the cases on both sides of this question' are collected and numerically are somewhat equally balanced. The principles of these cases are not in conflict. The sure authority to be derived from their consideration is that each case must be governed by its own facts and circumstances. The chancellor is the arbiter of these facts and circumstances and if he is convinced upon hearing that a nuisance either exists or does not exist, his opinion is entitled to great weight and it ought not be disturbed unless an Appellate Court can readily see that he has acted contrary to the weight of evidence or in conflict with established rules of law. We do not find authority in the City of Pana case, supra, which requires that in cases of this character in every conflict of evidence a judgment at law is a condition precedent to the intervention of a court of equity. Furthermore the City of Pana case was a mandatory injunction case in which it was sought to compel the defendant company to remove a pile of slack which was the accumulation of many years. There is substantial difference between enjoining a continuing nuisance and compelling the performance of affirmative acts in reference to property rights long acquiesced in, the change of which involves prodigious tasks and large expenses.

We have analyzed the above authorities not so much for the purpose of arguing against the principles sought to be applied to the case at bar as to expose the line of demarcation between those cases which hold that a judgment is a prerequisite to an injunction and those which hold that injunction is proper in the first instance. We think that line is not indistinct. It is bounded on one side by those cases in which the facts are so in dispute and in which the evidence is so conflicting that a court cannot without difficulty determine whether the right exists and on the other by those cases in which a court can readily see that the right exists and that the remedy of injunction should be employed. There is a wealth of illustration of these boundary lines to be found in the decisions of our courts. As said before many of them have been collected and commented upon in the City of Pana case, supra. We believe there would be little or no question in- the minds of the parties to this suit of the soundness of the principles of these cases, as they have been applied. Indeed, the same is true as to the cases here cited by the respective parties. It follows that our sole concern is which of these classes of authorities applies to the facts in the record before us. We need not look further. All questions involved in this case have been passed upon by the authorities submitted. We have but to make the proper application.

The evidence of appellees tends to show that since 1929, appellants have dumped approximately 12,000 cars of rubbish upon the tract of land in question; that the material so dumped is of great variety, consisting of trash of all kinds, animal and vegetable matter, dead dogs, dead goats, cats, rats, and other putrescent matter; that said dump has attracted a peculiar species of rats; that said rats have spread to the surrounding community and have preyed upon the poultry of the residents; that said dump has attracted many rough characters who indulge in lewd, coarse and unlawful conduct to the annoyance of the neighborhood; that fires are burned upon the dump and the smoke therefrom settles over the neighborhood destroying vegetation and rendering the lives of citizens miserable by polluting the air which they breathe; that the stench and foul odors arising from the dump are sickening and can be smelled for miles around; that families have become sick from breathing the air; that people in the vicinity have to keep their houses closed on hot summer nights to escape the effects of the odor from the dump; that the conditions there are ideal for the spread of germs which affect animal life, such as hemorrhagic septicemia, influenza, trichinae, anthrax and black leg; that the waters of Dismal Creek which runs through the premises and empties into the Little Wabash River' are poisoned and polluted so as to render them unusable and to be destructive to animal life; that flies and insects gather in immense quantities about the place to the annoyance of the neighborhood.

If these things are true this dump amounts to a public nuisance of a dangerous, not to say a deadly, character. It renders homes uncomfortable and families miserable. It takes from them the natural, God-given rights of breathing pure air and using pure water. Conduct of the character here described is in direct violation of Cahill’s St. ch. 19,1} 72; section 61 of chapter 19 of Smith-Hurd statute against the pollution of streams. Damages of this character cannot be compensated in money. No remedy at law is adequate. Neither can property rights be set off against these inherent and inalienable rights. It would be a vicious doctrine, indeed, that would permit a party to say, “We have rendered your homes useless and your lives miserable, but we have our money invested in our industry and our property rights must not be disturbed. ’ ’ Furthermore, we are unable to accept the argument that these people, having endured the things which they claim in this record as long as they had, and then being somewhat relieved by the cessation, are not in a position to complain when they are threatened with the resumption of the conduct which first brought about their misery. There is only one question involved here: “Does this evidence, considered in the light of the evidence of appellants as to the nature and character of their industry, warrant this injunction ? ’ ’

To meet the evidence of appellees, appellants offered a number of affidavits to be found oh pages 30-40 of the abstract to the effect that the affiants resided in the neighborhood, some of them with their farms adjoining the dump tract; that they had not been adversely affected by the odors from the dump or the pollution of the waters of Dismal Creek. Much of this evidence is in the nature of conclusions of the various witnesses. Some of them admit that there are odors from the dump. Some of them have some interest in the outcome of the case. Appellants also offered oral testimony of a number of witnesses, among them Melvin A. Dobbs, who is employed by the Illinois Water Survey. He visited the premises and made an inspection in 1929 and found none of the things complained of in the bill. The dump necessarily. was new at that time. Since 1929 the company has dumped 12,000 carloads of material there. An inspection in 1929 would not be very convincing of the condition of the dump since that time. Neither would the testimony of the witness, Fred W. Farmer, who examined the cars of rubbish on the tracks of the Illinois Central at Champaign. It is quite possible that appellants were hauling to the dump the matter complained of and still there would be none of it in the cars he examined. Most of these witnesses are employed by the Illinois Central Railroad Company which has a direct interest in the outcome of this case. They testify that they never observed offensive odors from the dump in question. Their testimony must be considered in the light of their employment by said railroad company. John J. Balger is manager for the chief defendant. M. Huber is at the head of the chief defendant. R. O. Singer is a defendant. Gus W. Barnhart was employed by the Huber Company. Henry Gilmore is a junk dealer and derives benefit from the dump.

There is substantially no contradiction of the evidence, that the waters of Dismal Creek are contaminated by the dump. Neither is there serious conflict on the question of animal and vegetable matter being upon the dump among the persons who live near. There is conflict from the testimony of defendants then agents, servants, etc. We do not mean to decry the testimony of these people but under the rules of evidence we must take into consideration their interest in this suit.

That this dump is a rat breeding place and that the neighbors have suffered from that fact is practically uncontroverted. Theories, statements on information and belief and the “not that I know of” character of testimony do not weigh against positive statements of known matters of fact. Statements like that of Mr. Mulhouse and Mr. Boyer that their families have been made sick by the odors from this dump are not contradicted by the statements of others that they were never made sick by them.

Much is in appellants’ evidence as to the damages accruing to the community by the loss of employment to its citizens on the dump. While we regard this as most unfortunate we cannot balance that loss against the destruction of the unquestionable rights of the citizens of the community to have their homes, comfort and health unimpaired by unlawful conditions which destroy them.

Much is said about the scope of this injunction. It must necessarily be broad and decisive if it is not to invite a multiplicity of lawsuits to determine whether it is being obeyed. Moreover, there would have been no need for any injunction, had appellants applied their common knowledge of what might have been dumped upon their own premises and what might not have. No resort to the knowledge of the law on injunction is necessary to determine that fact. That one may not use his premises so as to destroy the natural rights of his neighbors is as old as law itself.

Taking this record in its entirety, giving due consideration to the very able manner in which counsel for appellants have argued their case, we are constrained to the opinion that the injunction in this case is fully warranted and that the trial court did not err in denying the motion to dissolve it.

Affirmed.


author: Mr. Justice Huffman

text:
    The First National Bank of Hinckley, Defendant in Error, v. Maxwell Clark, Administrator De Bonis Non with Will Annexed of the Estate of Edward Stahl, Deceased, et al., Plaintiffs in Error.
    Gen. No. 8,547.
    Opinion filed April 25, 1934.
    Rehearing denied June 25', 1934.

      Thomas M. Cliffe, for plaintiffs in error.
    H. E. Mann and Lowell B. Smith, for defendant in error.
   Mr. Justice Huffman

delivered the opinion of the court.

Defendant in error brought an action of debt against plaintiffs in error, the administrator and devisees of Edward Stahl, deceased. The suit is based upon sections 10, 11 and 12 of the Statute of Frauds and Perjuries, Cahill’s St. ch. 59, lift 10-12. Defendant in error held two promissory notes executed by the deceased, upon which there was a total balance due of $1,399.94. Edward Stahl died testate on December 28, 1928. By his will be devised and bequeathed his estate to Ms widow Christiana Stahl for her natural life, with remainder in equal portions to his five children,' who with said widow are the plaintiffs in error herein. AdmiMstration wás had upon the estate of the deceased and same was closed on July 28,1930, without defendant in error filing any claim against said estate upon these notes.' Thereafter this suit was brought to recover the aforesaid balance due upon the two notes. There is no dispute regarding the amount due thereon. The declaration alleged, among other things, that the personal, assets of said estate were insufficient to pay the notes and interest due, and that by force and effect of the above statute, the plaintiffs in error herein, as the heirs of said deceased and the devisees and legatees under his will, became and were liable to pay to the defendant in error its debts, to the extent of the value of the real estate so devised to them by said deceased under his will.

The court in its judgment found the value of the real, estate to be $3,000, and the amount due defendant in error $1,399.94’; that the administrator had made Ms final report and was duly discharged prior to the’ beginning of this suit; that he had no assets in his hands belonging to said estate; that there were no undiscovered assets of said estate; and ordered that the defendant in error take nothing as against the said administrator. The court further found that the personal assets of said estate were insufficient to pay the amount due defendant in error upon said notes, and that by force and effect of the statute of this State in such case made and provided, the plaintiffs in error, as heirs of the said deceased and as devisees and legatees under his will, were liable to pay to the defendant in error to the full extent of the value of the real estate so devised and bequeathed to them under said will. It was ordered that the defendant in error should recover from the plaintiffs in error the said sum of $1,399.94, and that it have execution therefor against said real estate.

Plaintiffs in error urge that defendant in error is barred from recovery in this action by force and effect of section 70 of the Administration Act, Cahill’s St. ch. 3, ft 71. Defendant in error contends that the limitation provision as contained in said section 70 of the Administration Act is not applicable to this case, and that a recovery is authorized under the above sections of ch. 59, known as the Statute of Frauds. The facts do not appear to be in dispute in this case, and the question now before the court is the right of defendant in error to maintain its action.

The limitation provision of the Administration Act as contained in section 70 thereof .is operative only as to an executor or administrator. Heirs and devisees cannot rely upon this limitation. Durflinger v. Arnold, 329 Ill. 93, 99. One of the early cases where the question involved herein was before the Supreme Court is the case of Ryan v. Jones, 15 Ill. 1. It was there held that a creditor of a deceased person could reach the lands in the hands of the heirs or devisees where the personal estate was not sufficient for the payment of the debts. The same statute has been before the Supreme Court in Hoffman v. Wilding, 85 Ill. 453; Guy v. Gericks, 85 Ill. 428; Campbell v. Potter, 147 Ill. 576; People v. Brooks, 123 Ill. 246; McLean v. McBean, 74 Ill. 134; Branger v. Lucy, 82 Ill. 91; Monroe v. Becker, 283 Ill. 42; Mackin v. Haven, 187 Ill. 480; and other cases, all of which recognize and follow the law as announced in Ryan v. Jones, supra.

The devisees have no just claim to the lands until the debts of the testator are fully discharged, and they acquire same subject to the payment of the debts of such testator. The question involved herein was squarely before the Supreme Court of Illinois in the case of Durflinger v. Arnold, supra, and there decided adversely to the contention of plaintiffs in error. The same question was presented in the case of Straus Bros. Co. v. Rush, 241 Ill. App. 216, wherein it was held that the limitation provision of section 70 of the Administration Act would not bar recovery under the provisions of the Statute of Frauds, as sought herein. Similar holdings are found in the cases of Durflinger v. Arnold, 244 Ill. App. 276; Dairyman’s State Bank of Marengo v. Dunham, 271 Ill. App. 249, 257.

The judgment of the circuit court in favor of the defendant in error against plaintiffs in error, as devisees of Edward Stahl, was correct, and the judgment is affirmed.

Judgment affirmed.


text:
    Jessie Erickson, Appellee, v. Grace R. Gregory et al., Appellants.
    Gen. No. 8,566.

      Opinion filed April 25, 1934.
    Rehearing denied June 25, 1934.
    Wolf & Love, for appellants; Stephen Love, of counsel.
    Edgar F. Thoma and Alsohuler, Putnam, Flannigen & Johnson, for appellee; W. C. O’Brien, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant, Albert Gregory, was a motorman on the Chicago, Aurora and Elgin Bailway. He lived at Wheaton, Illinois, and was the husband of appellant, Grace B. Gregory. Appellee lived at Elmhurst, Illinois. One spring day in the year 1923, appellee was at the station in Elmhurst when appellant brought his train of electric cars to a stop. Appellee at this time was holding a bouquet of flowers. She took one and tossed it up to appellant with the remark, “Here is a flower for the motorman.” Appellant thanked appellee for her favor. This chance meeting ripened into a warm friendship between appellee and the appellant husband, which continued until the spring of 1926. During this time the evidence shows that appellee and appellant would see each other from time to time, upon which occasions they would discuss flowers and gardening, and would exchange bulbs with each other at appropriate seasons of the year; and that appellee would bring pie and cake, and upon one occasion roast duck, to appellant at the station, where the same were delivered to him for his enjoyment.

This platonic friendship continued until the spring of 1926, as aforesaid, when upon one night, appellant’s wife, Grace R. Gregory, took the family car and drove to the lodge hall where appellant was supposed to be attending a lodge meeting. Upon her arrival at the lodge hall, she was advised by appellant’s fraternal brothers that he had not been to lodge that night. Whereupon appellant, Grace R. Gregory, returned home, and upon the husband’s return, a stormy session was had, wherein the husband admitted to the wife that he had spent the evening at the home of appellee, and further confessed to the acquaintance and friendship with appellee as above set out.

Upon the following morning Grace R. Gregory went to the home of appellee and advised appellee that she knew her husband had been there the night before, and that she had come to settle with appellee. It is claimed by appellee that the said wife stated appellee’s property was worth $14,000 and thereupon demanded the sum of $5,000. The evidence shows repeated and continued visits and messages from the said wife to appellee. Appellee claims the wife stated she was going to make the husband sign over to her everything he had, and divorce him, and make appellee pay her $5,000; that the wife threatened her, stating that she was not born and raised in Canada for nothing; that she was a pretty straight shot; and unless appellee made settlement as demanded there would be a terrible tragedy. The evidence further shows that the wife stated she was going to take appellee’s home away from her in addition to the $5,000, and that she was going to get her job at the Hillman Department Store in Chicago. The evidence shows that the wife did go to the above store where she created a scene. It appears that the wife took appellee from her residence to the home of appellants, in appellants ’ car, and there in the presence of the husband, Albert Gregory, procured an instrument which she stated to appellee was a note, and appellee claims she was there caused to sign the note in the sum of $5,000, because of the threats of the said wife, with the husband present. It is apparent from this record that the husband acquiesced in the conduct of the wife and submitted to such demands and directions as she made. However, the evidence does disclose that the husband when outside of the presence of the wife, in referring to her would use most opprobrious and shocking terms.

After the giving of the note as aforesaid, the conduct and methods employed by the appellant wife continued until appellee gave to said appellant her check for $5,000 in lieu of said note. Appellee claims the said wife advised her that she was a former deputy sheriff, and read to her from a law book for about 15 minutes, all of which appellee claims she did not understand. The evidence shows the wife stated she had not yet found out just how much she was damaged, and that she would have to dig it out of Albert. Albert, upon the trial of the cause, insisted that the friendship between himself and the appellee consisted only of discussions regarding flowers and gardening, together with the exchange of bulbs as aforesaid; and with appellee occasionally bringing food to him, as above set out. He did, however, claim that he and appellee were guilty of one act of indiscretion in the spring of 1925.

Appellee’s check to the appellant, Grace R. Gregory, was presented by appellant to the bank upon which it was drawn, and there paid, on June 11, 1926. The proceeds of this check were deposited to the joint account of appellants, and $4,500 of the money was applied to the payment of a note of which appellants were makers.

Appellee instituted this suit against appellants for the recovery of said money on June 11, 1931. It is insisted by appellants that the statute of limitations had run, but we are of the opinion that appellee had until midnight of June 11, 1931, to bring her suit. Crowley v. Methodist Book Concern, 323 Ill. 215, 216, 220. The check was dated a day or two prior to the day it was cashed, but par. 210 of ch. 98, Cahill’s St. 1931, provides that, “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” We therefore do not consider that .payment took place until the day appellants presented the check at the bank and received payment thereof.

Appellants also urge for reversal the fact that in the beginning of this suit, Thomas Gregory, Albert’s brother, was made a party defendant, due to the fact he drove the car for appellant, Grace R. Gregory. Thomas Gregory did not share in any of the money paid and did not endeavor to coerce appellee into the payment of this money. He was dismissed out of the suit at the time of the hearing. Appellants insist this constitutes reversible error because after the dismissal of said defendant, the declaration was not amended; urging that it is improper to dismiss one defendant alleged to be jointly liable, and continue as to the other defendants, without amending the declaration. It does not appear, however, that the appellants made any objection to the dismissal of this defendant and did not object to the testimony offered in the case on the grounds of a variance. No such motion being interposed, nor the point being made in the trial court, where appellee could have amended her declaration, we do not consider the same to now constitute reversible error. Harris v. Humphrey & Co., 103 Ill. App. 45, 47; Mayer v. Brensinger, 180 Ill. 110, 118; Teich v. Ayer, 213 Ill. App. 41, 45.

Appellants urge reversal because of the refusal of the trial court to give appellants’ offered instruction number eight, but upon examination, we find that this instruction is covered by appellants’ given instructions, numbered three and four.

Appellants complain as to appellee’s given instruction number one, which was as follows:

“The court instructs the jury that the plaintiff may recover in this suit if the jury believe from the evidence that the defendants, or either of them, had in his or their possession when this suit was commenced money which in equity and good conscience belongs to the plaintiff; and if the jury believe from the evidence that the defendants, or either of them, through fraud, coercion, intimidation, or threat to do an illegal act induced the plaintiff to pay out $5,000, then the jury should find the issues for the plaintiff.”

They complain because this instruction uses the words, “which in equity and good conscience belongs to the plaintiff.” This was an action brought by appellee for money had and received. We think appellants’ objection is obviated by the ruling of the court on instruction number three given in the case of Reichwald v. Gaylord, 73 Ill.. 503. That instruction contained the same phrase and was approved by the Supreme Court in the above case. Appellants further object to that portion of appellee’s instruction number one, which had to do with the appellants inducing the appellee to pay over the money through coercion, intimidation, or threats. Appellants ’ given instructions two, three, and four, contain substantially the same language. Under such circumstances appellants cannot now be heard to complain of an alleged error in appellee’s instruction number one, when the same matter objected to is contained in appellants’ own instructions. Hunter v. Sanitary District of Chicago, 179 Ill. App. 172, 177; Robishaw v. Schiller Piano Co., 179 Ill. App. 163, 170.

Appellants next urge the verdict is so uncertain in its terms that no lawful judgment could be entered thereon. The verdict reads as follows: “We, the jury, find the issues for the plaintiff, Jessie Erickson, and against the defendants, Grace B. Gregory and Albert Gregory, and assess the plaintiff’s damages in the sum of $5,000, plus interest at 5%.” They urge the verdict fixed no date from which the interest was to be computed, and that therefore the court could not enter judgment on the verdict for the sum of $6,479.13, as was done. The court in this case instructed the jury that in the event they should find the plaintiff was entitled to recovery from the defendants, they might allow plaintiff interest at the rate of five per cent per annum on such sum as they believed from the evidence plaintiff should receive from the defendants, from the date such money was received by the said defendants until the time of the verdict.

Judgment was entered by the court on the verdict in favor of appellee herein and against appellants on June 11, 1932, for $5,000, and the interest thereon, which totaled the sum of $6,479.13, and the costs. Appellants do not dispute the correctness of the interest as computed by the trial court in this judgment. In their objections to the judgment they rely upon the case of Minnesota Mut. Life Ins. Co. v. Welsh, 131 Ill. App. 103. It appears in the opinion of the court in that case, that, “It is apparent from the record that appellee should be allowed interest from the date when the proofs of death were furnished to the appellant, if such date appeared; but that date is not contained in the record.” The court in that instance was unable to determine the interest to be charged, because nothing appeared in the record to fix the date when interest should commence. It is further stated in said opinion that the court may look to the record for necessary data for the purpose of carrying out a verdict.

Appellants urge the verdict is against the weight of the evidence. The jury heard the witnesses testify, and it was within their province to determine the weight of the evidence. In the state of the record we cannot now say that the verdict is against the manifest weight of the evidence.

The conduct of the appellant, Grace R. Gregory, in this case, is such as cannot be sanctioned. She had her legal remedy which she could have pursued' in the courts. Instead, she elected to take the matter in her own hands, and by a continued course of conduct which cannot be countenanced, caused the appellee to part with her money. She must now-abide the result of her own acts. Appellants have at all times continued to live together, and have jointly enjoyed the money paid by appellee, using $4,500 thereof in payment upon a joint obligation, and a deposit of the remainder to their joint account. This was an action for money had and received, and we understand the rule to be that such action may be maintained whenever the defendant has obtained money of the plaintiff, which in equity and good conscience he has no right to retain. First Nat. Bank of Springfield v. Gatton, 172 Ill. 625, 627.

Counsel for appellants claim that the trial of this case resembled a “Roman Holiday,” and urge the cause should be reversed and remanded because of the deportment of the audience that attended the trial. We have examined the record in this respect and do not find any criticism to be made of the trial court.

Finding no reversible error in the record, the judgment of the circuit court of DuPage county is affirmed.

Judgment affirmed.


text:
    Will B. Page et al., Appellants, v. Thomas E. Gray et al., Appellees.
    Gen. No. 8,729.
    Opinion filed April 25, 1934.
    Rehearing denied June 25, 1934.
    Welch & Hoffman, for appellants; Ninian H. Welch, of counsel.
    Hall & Hulse, for appellees; Minard E. Hulse, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit in foreclosure brought by appellants against appellees. Thomas E. Gray and Cora A. Gray, his wife, were the owners of a certain lot in the City of Waukegan, Illinois. On March 31, 1924, they executed their four principal notes in the sum of $5,000 each, secured by a trust deed upon the aforesaid lot. Appellants became the holders of these notes and on January 23, 1931, filed their bill in the circuit court of Lake county to foreclose the trust deed. Gray and wife, on November 1,1924, conveyed the premises to Bessie Jacobs and Jacob Kaplan. Subsequently, and on August 25, 1925, Bessie Jacobs and husband conveyed their undivided one-half interest in the premises to the said Kaplan. He was the owner of the premises at the time of the filing of this bill. This fact was set up by appellants and he was made a party defendant.

A decree pro confesso was taken in said cause and sale had thereunder, which resulted in a deficiency of $2,000. A few days after the sale, Cora A. Gray died intestate. About 10 days after her death appellants procured the entry of an order approving the master’s report of sale, and the entry of a deficiency decree jointly against appellee Thomas E. Gray and the personal representatives of Cora A. Gray, deceased. Upon execution being served under this decree, Thomas E. Gray individually and as administrator of the estate of Cora A. Gray, filed his motion to vacate and set aside the deficiency decree. . Such personal representatives were not parties to the decree of foreclosure. This deficiency decree was erroneous. Odell v. Levy, 307 Ill. 277. The trial court properly vacated and set same aside. This was done without objection upon the part of appellants. Following this, appellants filed their supplemental bill in said cause claiming the right to a deficiency decree against appellee, Thomas E. Gray, individually and against him as the administrator of the estate of Cora E. Gray, deceased, praying that he might be required to make full and direct answer individually and as administrator, and that the court find the said Thomas E. Gray individually, to be jointly and severally liable with the said Thomas E. Gray as administrator of the estate of Cora A. Gray, deceased, for the payment of said deficiency; and for general relief. It was stipulated by agreement of the parties, that appellee individually and as administrator of the estate of Cora A. Cray, deceased, was given leave to file answer in this cause.

Appellee filed his joint and several answer individually and as administrator, to the original and supplemental bill of complaint, setting up that the property in question had been conveyed by himself and wife as above set out, and that the grantee therein assumed and agreed to pay the mortgage indebtedness as a part of the purchase price; that on April 1, 1927, Jacob Kaplan was the owner in fee of the property; that on said date the appellants herein for a valuable consideration extended the time of payment of the mortgage indebtedness (which matured on said above date) for a period of three years; that neither appellee nor his wife, Cora A. Cray, had any knowledge or notice of any such extension and did not join therein or consent thereto, nor thereafter adopt or ratify the same. Appellants filed their replication to this answer. The cause was thereupon referred to the master to take proof and to report his findings. The master refused appellee the right individually and as administrator to offer testimony in support of the above allegations set forth in his answer to the original bill of complaint and to the supplemental bill. Appellee’s objections to the master’s report on this point were overruled and were permitted to stand as exceptions before the trial court. The trial court sustained appellee’s exception to this portion of the master’s report and ordered that he proceed to take proof thereon óf the respective parties. The parties then entered into a stipulation before the master, in lieu of taking testimony, which stipulation after setting out the execution of the notes and trust deed, admits the conveyance of the property as claimed by appellee, subject to the trust deed herein involved, with the grantee assuming payment thereof as part of the purchase price, the recording of same, that Jacob Kaplan owned the fee title at the time of the commencement of this suit, and admitting the extension of time granted by appellants to the said Kaplan for the payment of the mortgage, for a valuable consideration, as claimed by appellee, and without any notice thereof on the part of appellee or his wife, and that appellee and his wife did not join therein or consent thereto, or ratify or adopt the same.

A supplemental bill authorizes the court to proceed as though a decree pro confesso had not been rendered. By the filing of the supplemental bill all previous decretal orders were vacated and the appellee had the right to answer both the original and supplemental bill. Odell v. Levy, supra, at page 281; Gibson v. Rees, 50 Ill. 383, 406, 410. The court did not err in so ordering the master to proceed to take such proof.

The master in his report found that by reason of the said extension agreement between appellants and the said Jacob Kaplan, for a valuable consideration, extending the time of payment of the principal due in the mortgage for a period of three years, without the knowledge or consent of appellee or his wife, and without their joining in said agreement, and without their ratification of same, that they thereby were released from liability on the notes secured by the trust deed, and that the appellee was not liable upon the notes and not liable for the payment of any deficiency in the proceeds derived from the sale of the premises involved, either individually or as administrator of the estate of Cora A. Gray, deceased. Appellant’s objections to the master’s report were overruled by the master and permitted to stand as exceptions upon the hearing thereof before the court. The master’s report was approved and confirmed. The trial court by its decree provided that the motion and application of appellants for the entry of a deficiency decree as against appellee, Thomas E. Gray, individually, and against him as administrator of the estate of Cora A. Gray, deceased, be denied, and that the supplemental bill of complaint be dismissed for want of equity, at the cost of complainants therein.

There is no controversy regarding the facts in this case or the facts as found by the master in his report. A mortgagor of realty is released from further liability when he conveys the property subject to the mortgage, which the grantee assumes to pay as part of the purchase price, and thereafter, without the knowledge or consent of the mortgagor, the mortgagee enters into an agreement with the grantee for a valuable consideration, extending the time for payment of the mortgaged debt. Albee v. Gross, 250 Ill. App. 98 (certiorari denied in this case); Douglass v. Ullsperger, 251 Ill. App. 145.

In view of the foregoing facts the judgment and decree of the trial court was correct, and the same is affirmed.

Judgment and decree affirmed.