text:
    Sixty-Third and Halsted Realty Company, Appellee, v. Chicago City Bank and Trust Company et al., Defendants. Appeal of Martha Paschong et al., Appellants.
    Gen. No. 40,290.
    Opinion filed March 29, 1939.
    Chas. O. Rumdall, of Chicago, for appellants.
    Memorandum brief in behalf of interests formerly possessed by Catherine L. Bromstedt was also filed by Frangís E. Hinckley, Bernard Barnard and Chas. O. Rundall, all of Chicago.
    Clausen, Hirsh & Miller, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff, Sixty-Third and Halsted Realty Company, an Illinois corporation, as successor lessee by assignment in two 99-year leases covering contiguous parcels of land located on the northwest corner of Sixty-Third and Halsted Streets, Chicago, filed its complaint in the superior court of Cook county against the then owners of the fee and the county collector of Cook county seeking first, to enjoin the county collector from proceeding* to have a tax receiver appointed for the premises, and second, for authority to accumulate rents and apply them to delinquent taxes which were liens on the property when the term of the leases began. Martha Paschong, Arthur W. Bromstedt, Ethel R. Martin, William F. Bromstedt and Earl W. Bromstedt, defendants, successors to undivided interests in the fee under one lease were later made defendants and filed a counterclaim seeking a termination of one of the leases for failure to pay the stipulated rent.

A decree was entered upon the findings of the court granting the prayer of an amended complaint and dismissing an amended and supplemental counterclaim. The counterclaimants appeal. An appeal was also taken by the conservator of the estate of Catherine L. Bromstedt, lessor of one tract and the owner of an undivided one-third interest in the other tract.

The case was tried on an amended complaint of plaintiff and answers thereto and on an amended and supplemental counterclaim of appealing defendants and' answers thereto,; The relief asked in the amended complaint was substantially as prayed in the original and the relief prayed in the amended and supplemental counterclaim was the same as in the original.

The sufficiency of the original and of the amended complaint was tested on motions to dismiss, the first of which was sustained and the .second overruled by the trial court.

The defendants suggest that no question is raised as to the pleadings save the contention that the amended complaint fails to state- a cause of action in equity. Defendants’ theory is (1) that there was no jeopardy because the tax receivership proceeding was void, ab initio; (2) that the leases contained specific provisions limiting the lessee’s rights in the event of dispossession to exoneration from rental liability during any period of ouster and limiting the lessor’s liability to the deprivations of rents during such period; (3) that the leases are not ambiguous or otherwise available to judicial construction; and (4) that the lessee could not refuse to pay rent and retain possession of the premises.

Catherine L. Bromstedt died on May 31, 1938, after the decree was entered in the trial court. Thereafter her son William F. Bromstedt was appointed administrator of her estate by the probate court of Cook county. Her death has been suggested of record in the proceeding and the appropriate substitution of appellants made.

The facts as they appear in the record are undisputed according to the plaintiff, and are that William Bromstedt was the owner of property on the northwest corner of 63rd and Halsted streets, Chicago, having a frontage on Halsted street of approximately 94 feet. His wife, Catherine L. Bromstedt, was the owner of the contiguous property on the north with a frontage on Halsted street of about 22 feet. One building covered both tracts. Catherine Bromstedt was adjudicated incompetent and her husband was appointed conservator of her estate by the probate court of Cook county.

In 1909 William Bromstedt leased his tract to one Schoenfeld for a period of 15 years, expiring on April 30, 1924, with an option for an extension of 10 years to April 30, 1934. This option was exercised and the lease extended. The lease to Schoenfeld required the lessee to pay all taxes assessed against the property.

On March 9, 1922, William Bromstedt leased his tract to Lenz, Dehning and Meyn for a period of 99 years, to begin 12 years later, that is on May 1, 1934, and to end on April 30, 2033. This lease was made subject to the Schoenfeld lease and required the lessees to pay all taxes levied for the year 1934, up to and including those for 2032. On the same day, and pursuant to authority obtained from the probate court of Cook county, William Bromstedt as conservator of the estate of his wife, Catherine, made a corresponding lease of her contiguous tract for the same term and to the same lessees. On May 19, 1928, William Bromstedt conveyed his tract to Chicago City Bank and Trust Company as trustee and concurrently made a trust agreement known as Trust 303 for the benefit of himself for life, and after his death, for the benefit of the named beneficiaries. William Bromstedt died on March 19, 1929, leaving him surviving Catherine L. Bromstedt, his insane widow, and defendants Martha Paschong, Arthur W. Bromstedt, Ethel R. Martin, William F. Bromstedt and Earl W. Bromstedt, his children, as his only heirs at law and next of kin. After his death, the Chicago City Bank and Trust Company was appointed successor conservator of the estate of the insane widow.

Schoenfeld defaulted in the payment of some of the taxes for 1928 and following years. The Chicago City Bank and Trust Company, owning the corner tract as trustee under Trust 303 and owning the adjoining 22 feet as conservator of the estate of Catherine L. Bromstedt, induced Schoenfeld to relinquish possession of the properties covered by his leases. The bank made an arrangement with the county treasurer to pay $5,000 in cash and $1,000 per month on account of the delinquent taxes. The $5,000 payment and one or more of the monthly payments were made. Substantial delinquencies existed on May 1, 1934.

Shortly before the terms of the leases began, the plaintiff corporation succeeded by assignment to the interests of Lenz, Dehning and Meyn, the original lessee. At a recurring annual profit, the plaintiff made a sublease of both tracts to Groldblatt Bros., Inc., for a period of five years from May 1,1934, with an option for another 94 years. This option has been exercised.

The plaintiff or its subtenant, took possession of the two tracts on May 1, 1934, which were then burdened with a lien for delinquent taxes in the sum of more than $55,000, with penalties aggregating in excess of $120,000.

On August 1, 1935, Joseph L. Grill, the then county treasurer of Cook county, filed an original proceeding in the circuit court of Cook county, No. 35 C 12592, alleging delinquencies in the payment of taxes on the two tracts in question and praying that he be appointed receiver of the rents, issues and income for the purpose of collecting and satisfying the delinquent taxes.

The plaintiff filed its complaint in this case in the superior court of Cook county on August 6,1935, seeking to enjoin the appointment of a tax receiver and asking that the leases in question “be construed with reference to the rights of the lessees therein . . . to pay general taxes . . . delinquent at the time of the coming into effect of said indentures of lease.” The complaint also sought sanction for the payment of delinquent taxes by the plaintiff and deduction of the amounts so paid from rents due and to become due under the leases. A temporary injunction was entered as prayed and the order appointing the tax receiver vacated.

In a proceeding then pending in the circuit court of Cook county, No. C 4614, on August 13, 1935, a decree was entered nullifying the trust instrument known as Trust 303 and the conveyance made by William Bromstedt to the trustee covering* the corner tract. The decree found that when William Bromstedt died his widow — who already owned the contiguous 22-foot tract — became seized in fee of an undivided one-third interest in the corner tract and the five children of William Bromstedt, who prosecute this appeal, became seized in fee of the remaining two-thirds.

After entry of the decree in the circuit court No. 35 C 4614, finding ownership of the corner tract in the widow and five children, an amended complaint was filed reciting the facts and making them parties. The relief prayed was essentially the same as asked in the original complaint.

The plaintiff claims that on May 1, 1934, and on or about the first of each succeeding month thereafter, to and including* July, 1936, it made legal tender of the rent and kept its tender good. From August, 1936, to date, the plaintiff has deposited the accruing rents with the clerks of the circuit and superior courts of Cook county under the provisions of orders entered in those courts, validity of which orders is challenged. It is admitted that none of the rentals reserved in either lease has ever been received by the fee owners. The five children served notice on the plaintiff and its subtenant on August 26, 1936, that they were the owners of an undivided two-thirds interest in the corner tract and that a default existed for nonpayment of rent. No response was made to the notice. On June 21, 1937, the five children demanded two-thirds of the accumulated and accruing rentals of the corner tract, to which no response was made.

Paragraph eight of the lease gives the lessors the right to terminate the lease under specified conditions and provides: “in case of default in the payment of rent only Thirty (30) days’ notice thereof to the Lessees shall be required in order to entitle Lessor to terminate this lease for such default.”

The five children, as owners of an undivided two-thirds of the corner tract, served three notices of default on the plaintiff and its subtenant on February 7, 1938. The notices advised that unless the defaults were cured within 30 days the lessors would terminate the lease. The first notice specified a default in the payment of rent from May 1, 1934 to and including August, 1935'. Those dates cover the period from the beginning of the term of the lease until the entry of the decree of the circuit court in case No. 35 C 4614 finding the children to be owners in fee. The second notice specified a default in the payment of rent from September, 1935 to and including July, 1936. Those dates cover the period from the entry of the circuit court decree finding the children to be owners in fee to the time the plaintiff began depositing the rent with the clerk of the circuit court. The third notice specified a default in the payment of rent from August, 1936 to and including January, 1938. Those dates cover the period during which the rental payments were deposited with the circuit court clerk. No response was made to such notices served on the plaintiff. -

Because the defaults were not cured, the five children, 31 days later, on March 10, 1938, served three corresponding notices of their election to declare the term of the leases ended and demanding immediate possession. No response to these notices and demands was made by the plaintiff, whereupon an amended and supplemental counterclaim was filed praying for a termination of the lease.

The Chicago City Bank and Trust Company as conservator of the Estate of Catherine L. Bromstedt, defended against the plaintiff’s complaint on the ground that the plaintiff was not entitled to equitable relief against her, and further that neither lease was binding as to her. The conservator served no notice of default or election to terminate the separate lease on its ward’s parcel; nor did it join in the notices of default or election to terminate the lease on the corner tract served by the five children owning- the remaining undivided two-thirds interest. It did, however, sign a statement appended to each of the notices denying that the lease was binding on its ward or upon her interest in the premises.

It is conceded by the parties in interest that the taxes levied and assessed against the demised premises prior to May 1, 1934, because of the default of Schoenfeld in payment of the taxes as required by his lease, became and were the obligation of the lessors. Under the terms of the plaintiff’s leases, plaintiff was obligated to pay all general taxes on the demised premises, beginning May 1, 1934, and all such taxes have been paid.

This court in the case of Morrison v. Moir Hotel Co., 204 Ill. App. 433, passed upon a question involved in an action brought by the lessor under a lease to recover taxes which it was alleged the lessee was obligated to pay. It appeared from the provision of the lease that the lessee should “pay to the said lessor, his heirs, administrators, executors or assigns the said rent, in installments hereinafter specified for said demised premises, from April 30, 1911, together with all water rates, taxes and assessments . . . levied or assessed annually, or from time to time upon the said demised premises.” The court there said: “We are of the opinion that this motion should have been allowed for the reason that under the lease the defendant was obligated to pay only those taxes levied or assessed after April 30, 1911 (the beginning of the term of the lease), and plaintiff failed to prove upon the trial that any of the taxes sought to be recovered were levied or assessed after that date.”

In the instant case it appears that the plaintiff is only obligated to pay the taxes from the beginning of the lease, May 1, 1934.

The Bromstedt heirs contend that they are relieved of any necessity of removing the lien of the unpaid taxes, because under the prior lease which the Bromstedts made with Schoenfeld, expiring April 30, 1934, and with which the plaintiff had no connection, Schoenfeld was obligated to pay the taxes. However, the unpaid taxes were a prior lien upon the premises in question, atnd Bromstedt having* failed to p'ay" the taxes, the county treasurer instituted the proceeding, to which we have called attention, for the appointment of a receiver to take possession of the premises and collect the rents and apply them to the payment of taxes then due. It does not appear from anything suggested by either party that there is any question as to the amount of taxes due, the question being* whether the plaintiff has the right to pay the taxes and apply the rent as it accrues in payment of the amount of taxes due. The defendants contend that while the plaintiff has a right to pay the taxes, the court is without jurisdiction to entertain a bill in equity such as was filed in the instant case to restrain the appointment of a receiver as prayed in the petition filed by Joseph L. Grill, the county treasurer of Cook county, to collect the rents and apply them in payment of taxes. The defendants suggest that it is elementary that equitable relief will not be afforded if there is an adequate remedy at law. By its pleadings and proof plaintiff has shown that it has an adequate remedy at law, and while the defendants do not claim that the plaintiff was under any legal or moral duty to discharge the delinquent taxes; nor that this is a proceeding to compel it to pay them, the primary obligation was that of Schoenfeld, and when he failed to pay, an arrangement was made by the owners of the fee with the county treasurer to pay in instalments, and suit was instituted to recover the amounts paid, and point to 36 Corpus Juris, 113, where it is said: “Further, the remedies for the recovery of taxes may render the lessee’s property primarily liable therefor, and when he pays taxes to avoid the subjection of his property to their payment, he may withhold the amount paid from the rents, as a compulsory payment, or he may recover the amount so paid in an action against the lessor.” Defendants cite other supporting authorities. However, that does not seem to be the question here. The plaintiff admits that it could pay the full amount of the taxes and then retain the rents to apply on moneys advanced until the amount is satisfied, but the answer to that is it would require the payment of a sum amounting to $120,000 to satisfy the lien for taxes and penalties, which would require the plaintiff to advance this considerable sum and thereby give the defendants the advantage of having their taxes paid by plaintiff’s advancing the amount required.

Under the terms of the leases entered into on March 6, 1922, by Bromstedt individually with Lenz, Dehning and Meyn, and by Bromstedt as conservator dated March 9, 1922, the lessor in each case demised and leased the premises involved for a period of 99 years beginning May 1, 1934. It is contended by the plaintiff that in the court below the Bromstedt heirs took the position that there was no obligation on the lessors under the leases in question to assure to the plaintiff the peaceful and quiet enjoyment of the premises in question. In this court plaintiff quotes the language used by the defendants in which this statement is made: “The lease contains no covenant on the part of the lessor to put lessee in possession, nor is there a covenant of quiet possession other than implied by law.”

Our attention has been.called to the case of Harms v. McCormick, 132 Ill. 104, upon this question, where the court said: “The words ‘demise’ and ‘demised’ in a lease, import a covenant on the part of the lessor, of good right and title to make the lease, and also imply a covenant for quiet enjoyment. (5 Am. and Eng. Ency. of Law, p. 538, title ‘Demise,’ note 1, and authorities cited therein; Gazzolo v. Chambers, 73 Ill. 75).” Also to the case of Berrington v. Casey, 78 Ill. 317, and Wade v. Halligan, 16 Ill. 507.

The defendants deny the assertion of the plaintiff that a covenant of quiet enjoyment is implied in every lease, but state that in their original brief they admitted that such a covenant was implied in the lease in dispute, and they repeat that admission but insist that until and unless plaintiff alleges and proves a breach of that covenant it is not entitled to any relief because of its existence, whether express or implied. So the plaintiff is entitled to a covenant of quiet enjoyment, which is implied in every lease, and of course the plaintiff must allege and prove that there was a breach of that covenant before he is entitled to relief on that particular point, and that must be disclosed by the allegations in the bill of complaint, as well as by the evidence submitted in support of the plaintiff’s complaint.

The plaintiff calls to our attention that the taxes levied and assessed against the demised premises, prior to January 1, 1934, were the obligation of the lessors. Under the terms of plaintiff’s leases, plaintiff was obligated to pay all general real estate taxes on the demised premises, beginning with the year 1934, and all such taxes beginning at that time have been paid. The obligation to pay the taxes that are the subject of this discussion was that of one Schoenfeld, who was in possession under a lease expiring April 30, 1934, and the plaintiff suggests that it knew that Schoenfeld might fail to pay the taxes, and also had knowledge that the taxes would be a first lien on the property, and if not paid, a defect in the title of the lessor would arise. This is admitted by the defendants when they suggest that the entire discussion under this caption is to the point that such taxes were not the obligation of the lessee, and state that “in this we agree, and in our original brief, we said, ‘We do not claim that plaintiff was under any legal or moral duty to discharge the delinquent taxes; nor is this a proceeding to compel it to pay them.’ ” So, from the suggestions that were made, the question arises as to what obligation there was for the plaintiff to pay the taxes which were the obligation of the lessor, and if payments were made were they to be treated as payment of rent.

The defendants’ position in regard to this question is that if the nonpayment of taxes, regardless of the responsibility therefor, constituted an infringement of plaintiff’s rights for which these defendants are liable, plaintiff had the right to pay them, become subrogated to the liens of the taxing bodies and obtain restitution out of future rents or recover the amount in an action therefor.

This suggestion seems to be clear, and it is a question of in just what manner will equity grant relief to the plaintiff in applying the rentals in payment of these taxes.

It would seem from the authorities that have been called to our attention that a tenant may undertake to pay taxes and deduct the amount out of the rent, for the landlord is bound to protect his tenant from all paramount claims. In Taylor on Landlord and Tenant (9th Ed.), the rule is stated as follows:

“A covenant is sometimes introduced into the lease, by which the tenant undertakes to pay the taxes; but, in the absence of such a covenant, the tenant may pay them, and deduct the amount of them out of the rent; for the landlord is bound to protect his tenant from all paramount claims. When therefore, a tenant has been compelled, in order to protect himself in the enjoyment of the land in respect of which his rent is payable, to make payments which ought, as between himself and his landlord, to have been made by the latter, he is considered as having been authorized by the landlord so to apply his rent, whether due or to become due.” And again, in sec. 395 of the same work, it is said:

“As a general rule, the tenant is liable in the first instance to pay all taxes imposed upon the demised premises. The land itself, in the hands of the occupant, is in fact debtor to the public, and prima facie it is the tenant’s tax, because the remedies are against him. He is, therefore, for his own protection, authorized to pay all such taxes and assessments, laid upon the premises for public improvements, as may be demanded of him, and to charge them to account of rent. . . . Nor is it necessary, to render the payment by the tenant involuntary, that the superior lord (i. e., the State) should threaten to distrain, for a demand, by one who has power to enforce his claim, is equivalent to compulsion; and such a payment is said to be no more voluntary than a donation to a beggar who presents a pistol. And if the sum paid by the tenant exceeds the rent due, the landlord will be bound to repay such excess, as being money paid by the tenant to his use.”

Then follows the contention of the plaintiff that equity will afford relief against threatened forfeiture of a lease. As we have already suggested, plaintiff’s leases carried with them a covenant of quiet enjoyment of the leased premises, and the obligation to pay taxes for the years prior to 1934, was the obligation of the lessors under the Schoenfeld leases, and not the obligation of the plaintiff.

The record states that on May 1, 1934, the plaintiff went into possession under the two leases. On that day it made tender to the Chicago City Bank and Trust Company of the full amount of rentals then due, aggregating $1,666.67. Plaintiff suggests that this tender was refused without explanation, and that like tenders were made on the first of each month thereafter, and upon refusal of each of such tenders, the rentals were deposited with the Continental Illinois National Bank and Trust Company, subject to withdrawal upon the order of the Chicago City Bank and Trust Company, and from the facts it appears that this situation prevailed from May, 1934 to July, 1935, inclusive. During this period, no attempt was made by the plaintiff to pay the delinquent and past due taxes, levied and assessed against the property for years prior to 1934, and it appears that on that day Joseph L. Gill, county treasurer and ex officio county collector of cook county, filed his complaint in the circuit court of Cook county against the Chicago City Bank and Trust Company, wherein he set forth that general taxes for the years 1928, 1929, 1930 and 1932 had been duly levied and assessed, that such taxes had been delinquent for more than six months, and that the total amount thereof was $55,678.64. Gill prayed that he be appointed the receiver of the rents, issues and income of the property, for the purpose of collecting and satisfying out of the rents, issues and income, the delinquent taxes.

In the filing of its bill, the plaintiff sought the aid of a court of equity, and it appeared from this petition that the plaintiff’s right of possession was questioned by the application for the appointment of a tax receiver by the county collector and by reason of this action the plaintiff was faced with the legality of a claim of forfeiture for nonpayment of rents by notice from the defendants, in the event it should pay taxes and seek to apply the amount thereof in payment of rentals.

It is clear from the record that there was no plan or offer by the defendants to pay the taxes, provided the plaintiff would pay the accrued rents. It would seem that they are interested more in receiving the income from this property than in making arrangements for payment of the taxes which are a lien upon the title in which they are interested. It is unreasonable to hold that by reason of notice to and failure of the plaintiff to pay the rents the defendants may forfeit this lease, when we consider that the plaintiff has deposited the money with a bank and the clerks of the circuit and superior courts, with the only request that he be permitted to satisfy the lien of the taxes which are in default, and which, of course would inure to the benefit of the defendants, in that the title would be clear and not subject to these defaulted taxes.

It is well to bear in mind that the interest of the plaintiff in this proceeding is an interest in real estate, for the reason that ch. 77, sec. 3, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.153], entitled, “Judgments, Decrees and Executions,” provides:

“The term ‘real estate,’ when used in this act shall include lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto, including estates for the life of the debtor or of another person, and estates for years, and leasehold estates, when the unexpired term exceeds five years.” And when we consider that plaintiff’s interest is a real estate interest, we find from an examination of the Revenue Act, ch. 120, par. 238, sec. 253 [Jones Ill. Stats. Ann. 119.274] that:

“The taxes upon real property, together with all penalties, interests and costs, that may accrue thereon, shall be a prior and first lien on such real property, superior to all other liens and incumbrances, from and including' the first day of April in the year in which the taxes are levied until the same are paid; which lien may be foreclosed in equity in any court of competent jurisdiction in the name of the people of the State of Illinois, whenever the taxes for two or more years, upon the same description of property, shall have been forfeited to the state, and may be sold under the order of the court by the person having authority to receive state and county taxes. . . .” So that a lien was created which covers the subject of this leasehold, and considering all the facts and circumstances as they appear in the record, the plaintiff was fully justified in proceeding in equity for the purpose of having the court declare whether he could use the accrued rentals for the purpose indicated.

One of the authorities which has been submitted to this court and which we think has an important bearing upon the matter is Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284. The court passed upon the question of jurisdiction of a court of equity to prevent threatened forfeiture of a lease, and this controversy turns upon whether or not the trustees of the residuary estate of Marshall Field were entitled to recover the income tax they had paid to Harvey. This tax amounted to $8,350.97, and the value of the leasehold estate was $2,000,000. The trustees of the residuary estate of Marshall Field contended that they were not liable for such income tax under their lease with Harvey, and Harvey thereupon served notice of. his intention to forfeit the lease if the tax was not paid. The court said:

“The chief contention of plaintiff in error is that defendants in error were entitled to maintain a bill in equity to prevent the threatened forfeiture. Defendants in error concede that if this be true the payment was not compulsory, but they contend that a bill in equity would not lie because they had a remedy at law, — that is, to pay and sue to recover the amount, as they did, and that this was their only remedy at law. We are unable to adopt this reasoning, for it decides for defendants in error the main question in the case, —that is, whether they had a right to pay and recover, —and then uses such decision as a logical premise to prove that the case should be decided in favor of the payor. This overlooks the fact that the payor is seeking in this suit not to avoid a forfeiture but to recover money paid on an illegal demand. If he may avoid the payment of such demand by resorting to a remedy in equity but does not avail himself of such remedy the payment is not compulsory even though pressure for payment is re-enforced by a threat to commit injury. ’ ’

This rule as announced justified the plaintiff in filing the bill in equity for the purpose of asking the court’s direction with reference to the use of the rental money which accrued in the payment of taxes. The court continued: “It is of the nature of equitable relief that it may be granted to obviate the effect of an act which the other party has a right to perform but by which he in equity and good conscience should not be allowed to benefit. Equity jurisprudence proceeds on the ground that a party having a legal right shall not he permitted to avail himself of it for the purpose of injustice, fraud, oppression or harsh and vindictive injury. (3 Story’s Eq. Jr. — 14th ed. — sec. 1728;) . . . We are unable to see any difference between a right given by statute and one arising from any other source. The basis of the relief is that the defendant is seeking to exercise a right which he has but which he should not be permitted to exercise.” How well that applies to the case now before this court. Here the defendants want the money which accrued for the rent, but do not offer any plan whereby they will pay the defaulted taxes which are a lien as indicated, and they want to destroy the value of the 99-year leasehold that is now owned by the plaintiff in the action.

Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284, was followed by this court in the case of Mayer v. Collins, 263 Ill. App. 219. This court there sustained a bill to enjoin the threatened forfeiture of a lease, and in following* the Harvey case, said:

“It is a well recognized principle that it does not follow that, because a remedy at law is afforded in a case, equity will not also take jurisdiction of the same state of facts. If the remedy in equity is more adequate because of special circumstances in the situation, the jurisdiction of equity will be sustained. Warfield-Pratt-Howell Co. v. Williamson, 233 Ill. 487. In Chapman v. American Surety Co., 261 Ill. 594, it was said: ‘No branch of equity jurisdiction is more frequently invoked. The use of injunctions to stay actions at law was substantially coeval with the establishment of chancery jurisdiction. That jurisdiction was largely built up through the instrumentality of injunctions in restraining* the prosecution of legal actions where the aid of chancery was sought because the equities of the case could not be considered in the common law action.’ And, further, that equity jurisdiction is for the purpose of prohibiting litigants from resorting to legal jurisdiction, 'because the controversies involve equitable features which can only be fully and finally determined in a tribunal having equitable jurisdiction.’ There are many other similar cases.” And the opinion of the Appellate Court seems to sustain the theory that even where there is jurisdiction to maintain an action at law, still the aid of chancery is sought because the equities of the case could not be considered in a common law action, and this is true in the instant case. Defendants expect the plaintiff to pay the rent, and then if the plaintiff uses the rent to pay the taxes, they still expect, unless the rent is paid, that legal title in plaintiff will be at an end. The court finally said :

“We cannot agree with the proposition advanced by defendant that a court of equity will not grant relief from the forfeiture of a lease for a cause other than the nonpayment of money in the absence of fraud, etc.” In the Harvey case the court cited with approval a number of cases passing upon the question of when forfeitures will be enforced by courts of equity. The cases quoted from are Springfield & Northeastern Traction Co. v. Warrick, 249 Ill. 470; Lehigh Valley Coal Co. v. Searle & Stark Heirs, 248 Pa. 385; Abrams v. Watson, 59 Ala. 524; Atkins v. Chilson, 52 Mass. 112 and Ostenberg v. Scottsbluff Inv. Co., 106 Neb. 143. From the authorities cited and the facts as they appear in the bill of complaint, we are satisfied that the court had jurisdiction to enter the decree appealed from in this action.

The question still to be considered is whether the Bromstedt heirs, defendants, are entitled to a decree of forfeiture of plaintiff’s lease. They base their contention on the facts as they appear in the record, and we cannot add very much to what we have already said upon this question, We have indicated that the Bromstedt heirs, as defendants, are not entitled to a decree of forfeiture of plaintiff’s lease. The question is raised as to whether the plaintiff has properly made a tender, which was kept good in the manner made by the plaintiff. There is one subject, however, that might be important, as well as interesting, and that is that the tender made in an equity proceeding is somewhat different from that made at law, and it appears from the statement made in this bill that the plaintiff made a deposit of the money as we have indicated, and that this money was within the control of the court and by the application made by the court, it was made so as to protect the rights and interests of all parties to the litigation.

The decree is affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., concurs, and Burke, J., takes no part.


source: Caselaw Access Project

author: Mr. Presiding Justice Riess

license: Public Domain

text:
    Frank Dinwiddie, Appellee, v. Norman Siefkin and Household Finance Corporation, Appellants.
    Gen. No. 9,132.

      Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    Hershey & Bliss and Daniel H. Dailey, both of Taylorville, and George B. Rhoads, of Shelbyville, for appellants.
    Harry I. Hannah, of Mattoon, for appellee; R.. F. Dove, of Shelbyville, and T. R. Figenbaum, of Mattoon, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

A judgment in the sum of $7,900 was entered in the circuit court of Shelby county upon the verdict of a jury in favor of the plaintiff appellee, Frank Dinwiddle, and against defendants appellants, Norman Siefkin and Household Finance Corporation, in a suit to recover damages for personal injuries alleged to have been sustained by the plaintiff, who was struck by defendants’ automobile while engaged with other employees of the State of Illinois in repair work on State Highway Bond Issue Route No. 16, from which judgment defendants have appealed to this court.

The first two counts of plaintiff’s complaint, as amended, charged the defendants with having wantonly and wilfully injured the plaintiff, while the third count charged general negligence. Defendants first filed motions to strike the complaint on the ground that all parties were operating under and bound by the provisions of the Workmen’s Compensation Act, which motions were denied, and answers and reply were filed, wherein the issues were joined and a jury trial followed, resulting in a verdict in favor of plaintiff under the third count. Motions for directed verdict were interposed by the defendants at the close of plaintiff’s evidence and of all the evidence and were denied. Motions for judgment notwithstanding the verdict, for a new trial and in arrest of judgment were also denied, and judgment was entered on the verdict.

It appears from the evidence that plaintiff Frank Dinwiddie and three other workmen were engaged in heating, pouring and sanding tar, in filling and repairing cracks in an 18-foot concrete slab on the above State highway extending east and west between and beyond the cities of Shelbyville and Mattoon, Illinois, at a point about 3% miles east of Shelbyville. The collision and resultant injuries occurred shortly after 2 o’clock in the afternoon of May 6, 1936, at which time a ton and one-half State owned dump truck was being slowly driven and operated westward on the north or right-hand side of the black center line of the highway by one of the workmen, Delmer Riley, at a speed of one to one and one-half miles per hour.

A 2-wheeled tar wagon containing a tar pot partially filled with hot tar, about 3x3%x5 feet in dimensions, with smoke stack from which smoke was issuing at the top thereof, was attached to the rear of the truck by 2 iron arms or braces made of 2%x3 inch channel irons. Attached to the right fender of the tar pot was a steel wire 108 feet long which extended to the rear along the highway where it was attached to and dragged a sled, about 2x2% feet in size and made of 4x4 inch lumber, along the right-hand or northerly edge of the slab, upon which sled an upright sign about 2% feet square faced eastward or to the rear, bearing the words “One Way Traffic,” at the top of which sign was attached a red flag extending horizontally from the south side of the sign pointing toward the center of the pavement. A similar red flag was also attached to the rear of the truck.

The truck had slowly traveled and worked westward on the north side of the pavement about 2% miles, while the three workmen on foot were engaged in the cleaning, tarring and sanding operations. The plaintiff was sweeping out the cracks that required tarring with a broom at a point about 30 feet east or back of the tar pot and about 20 feet behind him Oscar Tull was pouring hot tar out of a bucket into the cracks. Approximately 30 feet to his rear, another employee, Early, was engaged in sprinkling sand from a bucket upon the freshly poured tar. Back of Early about 20 feet, the sled, sign and flag were being slowly drawn by the attached wire along the north edge of the pavement. Riley, the truck driver, sat in the truck with one foot on the running board and was watching the work and traffic both from the front and rear of the repair equipment when the accident occurred.

A Chevrolet sedan driven by George Davis at about 45 miles per hour, came from the east, approached the highway crew from the rear, and as it drew near, slowed down to about 20 miles per hour, and in passing, pulled to the left or south side of the slab and had come up almost even with the truck and tar pot at the time.

Defendant appellant, Norman Siefldn, 24 years of age, was also driving westward in a new Plymouth coupe, in the course of Ms employment as investigator for defendant, Household Finance Corporation, en route from Flora to Pana, Illinois, on business for his employer.

He was traveling at a speed of 65 to 75 miles per hour, according to witnesses Delmer Riley and Mrs. Carrie Helton, and by his own statement about 50 miles per hour. He came up directly behind Davis in the westbound lane with the intention of passing around Davis. At this moment Davis, according to Siefkin, turned over into the left-hand or eastbound traffic lane to pass the men, and Siefldn, for the first time, saw the warmng sign, the Mghway crew and the truck. He immediately applied his four-wheel brakes and locked the wheels and sMdded on in the right-hand lane, knocking the sand bucket out of Early’s hands, striking Tull and Dinwiddie and crashed into the rear end of the tar pot, bent the iron supports and his car partially turned, struck the fender of the Davis car and stopped at an angle on the slab. The hitch irons of the tar pot and truck were broken and the truck knocked forward approximately 10 feet. The sand bucket was thrown down the road alongside the truck, Tull was knocked about 60 feet and died immediately, and plaintiff Dinwiddie was knocked about 30 feet over on to the right-hand dirt shoulder near the rear end of the truck. The tire skid marks upon the pavement extended back from the truck 125 feet to about 15 or 16 feet back of the warmng sled.

Dinwiddie was taken by ambulance to a hospital at Shelbyville, where' he was treated for his injuries, which, according to plaintiff and his physicians, consisted of a lacerated cut on his left forehead, dislocated right shoulder and collar bone injuries, a puncture wound above his left hip, bruises and shock; that X-ray pictures were taken which disclosed a dislocation of his right shoulder, the muscles and ligaments torn loose so that the scapula had dropped down and the clavicle raised up one and one half to two inches out of normal position; that the chronium process holding the shoulder in place was injured, and a condition shown which indicated rib and back injuries. Plaintiff remained in the hospital at Shelbyville for 18 days. He was subsequently sent to a Chicago hospital where a repair operation was performed on the shoulder by removing fascia from his leg and opening up and sewing the clavicle and scapula together. He was in the Chicago hospital for 4 weeks, and his body, shoulder and arm were in a cast for 11 weeks.

The plaintiff and a treating physician testified that this and other injuries resulted in permanent disability in use of the right arm and shoulder. He testified that he had been unable to work since this injury; that he suffers pain almost continuously in his back, shoulder and neck; must lift his weight on his right leg; walks with a cane; can climb stairways only with difficulty; cannot lift with his right arm, nor use it to any considerable extent and cannot perform any kind of manual labor; that he was 58 years of age, married, living with his wife, and for some time prior to the injury had been employed by the State of Illinois in general highway maintenance and repair work on an average, as he testified, of 4 to 6 days per week at an average daily wage of $3.20.

Plaintiff’s Exhibit “A,” admitted without objection, disclosed that medical, surgical, hospital and hotel claims and medical supplies in the total sum of $901.96 had been paid by the State of Illinois and that the further sum of $271.55 had been so paid as compensation for temporary disability as a result of the injury.

It is contended on the part of the defendant appellants that both the State of Illinois and the defendants were operating under and bound by the provisions of section 29 of the Workmen’s Compensation Act (ch. 48, par. 166, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 143.44]), and that, therefore, the plaintiff has no common law right of action against the defendants herein, but is limited to his statutory right to claim compensation payable to him by his employer under the terms of the act.

If both parties were operating under and bound by the terms of that act, then the employee cannot recover for the negligence of the third party who is also bound by the act, but is limited to his statutory right to recover compensation payable by his employer under the terms of the act. (O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 137 N. E. 214.) This directly raises the question of whether or not the employee has a claim or cause of action under the act as against the State of Illinois, which would bring both parties within the scope of the above provision.

It appears from the evidence that the plaintiff Dinwiddie was employed in extra hazardous repair work upon a concrete State highway by the State of Illinois and that his injury arose out of and in the course of his employment; that such injury was proximately caused and occasioned by the negligent acts of the defendant Siefkin, an employee of the Household Finance Corporation, then operating under and bound by the terms of the Workmen’s Compensation Act.

It was held in the case of City of Rock Island v. Industrial Commission, 287 Ill. 76, 122 N. E. 82, that where an employee of the city, while engaged in sweeping and cleaning concrete streets in said city, was struck by an automobile and sustained injuries, the finding of the Industrial Commission that he was engaged in an extra hazardous occupation, out of and in the course of which his injury arose, was in accord with the facts; that “the occupation of constructing permanent roads whereon cement mixtures are formed and placed and where rock is crushed and placed thereon may be regarded as a dangerous occupation. The maintaining and repairing of such public roads or of public streets in cities are the maintaining and repairing of a ‘structure’ within the meaning of division 1 of paragraph (b) of section 3 aforesaid, (section 3, Workmen’s Compensation Act, ch. 48, par. 139, Ill. Rev. Stat. 1937) when the maintaining and repairing of the same are, in fact, extra-hazardous. (McLaughlin v. Industrial Board, 281 Ill. 100.)”

In the case of Menestrina v. St. Louis Nat. Stock Yards, 278 Ill. App. 342, a suit for damages under the Injuries Act was filed against the St. Louis National Stock Yards seeking recovery for the benefit of intestate’s next of kin, growing out of the death of a State veterinarian, who was alleged to have been fatally injured as the result of a fall occasioned by the breaking of defendant’s stock pen fence, over which the decedent had sought to climb in attempting to escape from a charging bull which he was seeking to inoculate with serum in the course of his employment. The upper plank of the fence was broken and caused him to fall and receive fatal injuries, and it was charged that the Stock Yards ’ company had negligently failed to keep its fences in reasonably safe repair, resulting in his death while there as an invitee in the performance of his said duties. A. plea to the general issue and a special plea were filed by the defendant alleging that plaintiff’s intestate was an employee of the State and that the plaintiff should have proceeded against the State under the Workmen’s Compensation Act, and that he had no cause of action against the defendant, who was also operating under the act. A demurrer to this special plea was sustained, and the ruling was assigned as error.

In passing upon the error assigned, the court said: “Sec. 26, Art. 4, of the State constitution, provides, ‘The State of Illinois shall never he made defendant in any court of law or equity. ’ Proceedings, under the Workmen’s Compensation Act, before the Industrial Commission, while somewhat informal, in all their essentials partake of the nature of law suits, and are terminated by an order or judgment which fixes the rights of the parties as effectually as does a judgment at law or a decree in equity. We are of opinion that to have thus proceeded against the State, would to all intents have been to sue the commonwealth, a course which is barred by the constitution. . . . The subject, however, is fully provided for by the Court of Claims Act, pars. 462 to 475, ch. 37, Cahill’s R. S. 1933. Par. 467, subpar. 4, relative to the powers of the court, provides that it shall have power to ‘hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience discharge and pay.’ Paragraph 6 of the same section confers upon the court the power ‘to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the “Workmen’s Compensation Act,” the Industrial Commission being hereby relieved of any duty relative thereto. ’ Par. 474 declares that the jurisdiction conferred upon the court of claims is exclusive. . . . It is apparent that the legislature designed that such demands were only cognizable before, and by, the court of claims, and that the procedure therein should be, as near as might be, that employed under the Workmen’s Compensation Act, which should not otherwise apply. That this is clear appears from the last clause of said par. 6: ‘ The Industrial Commission being hereby relieved of any duty relative thereto.’ It is manifest that the demand could not have been heard by the Industrial Commission, and the court properly sustained the demurrer to the special plea.” The above case was thereupon tried on issues joined and adjudicated on its merits as between the claimant and the defendant, although the defendant National Stock Yards was operating under the Workmen’s Compensation Act, and the suit was filed by the personal representative of an employee of the State of Illinois.

That the inclusion of the State with all other municipal corporations, bodies politic and other employers and their employees engaged in extra hazardous enterprises or businesses enumerated in section 3 of the Workmen’s Compensation Act was intended by the legislature to be directory only and not “binding” upon the State is evidenced by the above provision expressly relieving the industrial commission “of any duty relative thereto.” It will be further noted that in the City of Rock Island case, supra, the claim of the employee who was injured by a passing automobile while sweeping the city streets was filed with and heard by the Industrial Commission, which is given exclusive jurisdiction of claims under the Workmen’s Compensation Act, with the sole exception of claims filed against the State. The action of the court of claims cannot be reviewed by certiorari or otherwise, as may be done when a claim for compensation is instituted before the Industrial Commission.

That the State is not bound by the Compensation Act in the- same reciprocal sense in which it applies to and between other employers and employees is well illustrated by the case of Fredrickson v. State of Illinois, reported in 6 C. C. R. 347 (1929), wherein the driver of a State truck negligently backed his truck into the automobile of the claimant, who thereupon filed his claim for damages in the State court of claims, in the sum of $173.98 based upon the alleged negligence of the State employee. It was there said: “The claim being based upon the negligence of an employee of the State cannot be allowed. No government is liable for the negligence of its employees in the absence of a statute making it liable for such negligence. (Gibbon v. United States, 8 Wal. 268; Minear v. State Board of Agriculture, 259 Ill. 549; Hollenbeck v. Winnebago Co., 95 Ill. 148.) If the injury complained of was caused by the negligence of the driver of the truck, claimant’s remedy is against the driver and not against the State. (Cooney v. Town of Hartland, 95 Ill. 516.) ”

In the case of Minear v. State Board of Agriculture, supra, a suit was filed by the plaintiff who had been injured in the fall of temporary seats added to a grandstand upon the State fair grounds and filed a suit in tort for the recovery of damages, predicated upon alleged negligence of the agricultural board resulting in plaintiff’s injury. The Supreme Court there held that the State board was an arm or agency of the sovereign State government, and, therefore, could not be sued upon the tortious action because of the inhibition of the above section 26, art. 4, of the State Constitution. See also In re City of Mt. Vernon, 147 Ill. 359 (363 et seq.), 35 N. E. 533.

The rule announced in the case of Fergus v. Russel, 277 Ill. 20, 115 N. E. 166, that the sovereign State cannot be sued because of the above provisions of the Constitution has been uniformly held by the courts of review of this State. The advisory jurisdictional power of the court of claims does not confer upon individuals the right to sue and enforce recovery from the State in contravention of the above provisions of the Constitution. It seems obvious that the intention of the legislature in creating reciprocal rights of recovery between respective employers and employees, when all are operating under and bound by the act, was not intended to create an enforceable legal claim or demand against the State. If an employee of a third person bound by the act was injured through the negligence of a State employee, it would further seem obvious that the employer could not recover compensation paid by him to his injured employee from the State of Illinois under the provisions of section 29 of the Workmen’s Compensation Act.

We therefore hold, as in the Menestrina case, supra, that the plaintiff herein was not deprived of his common law remedy, hence the cause was properly submitted to the jury upon the issues of fact as joined herein.

It is further contended by the appellant in its brief that if the State was not so operating under and bound by the provisions of the act, the State could not become a party to the proceeding by interpleader and thus procure a lien by subrogation against the judgment for the amount which it had advanced in payment of physicians and hospital bills and temporary disability allowances to the plaintiff. The purported order of subrogation was entered by the lower court after the final judgment and appeal therefrom was perfected in this case, hence we will not undertake to pass upon the validity of such order, as the same was not appealed from by either party and is not before this court.

On the question of due care by plaintiff, there was no controversy; on that of negligence on the part of defendant Siefkin, who was conceded to have been engaged in the duties of his employment at the time of plaintiff’s injury, there is little controversy. Seventeen witnesses testified on material questions of fact for the plaintiff and only defendant Siefkin testified for the defendants. The jury might well have been warranted in finding the defendant on the facts shown in the record to have been guilty of wanton and wilful conduct under the first and second counts of the complaint. The verdict in favor of the plaintiff under the third or general negligence count was in accord with the manifest weight of the evidence, and on the facts in evidence, we are constrained to hold that any other verdict would have been contrary to the manifest weight of the evidence. A new trial, if granted, under the evidence produced herein, would not likely result in any other verdict, and it is the opinion of this court that substantial justice has been done between the parties.

Defendants appellants have assigned certain additional errors concerning the admission of evidence and the testimony of physicians, principally of a cumulative character, which we deem under the whole of the evidence, not to have been prejudicial in its effect. We do not deem the exhibition of the plaintiff’s injured shoulder or the plaster cast to the jury or taking exhibits to the jury room to have been an abuse of discretionary power by the trial court. Nor do we find certain remarks by plaintiff’s counsel in his closing argument, to which objection was promptly made and sustained by the court and which the jury was instructed to disregard, to have adversely affected the defendants’ interests. The remarks complained of, however, were improper, and their use does not meet with the approval of this court.

Defendants assign as a further ground of error that under the whole of the evidence, the verdict was excessive ; that certain alleged errors in instructions left the jury in a state of mind where they might well have given exemplary damages under the third count. The instructions set forth the rule of law permitting exemplary damages to be given in the event of the defendant being found guilty under the first or second counts charging wanton and wilful conduct. The jury evidently distinguished between the two counts charging wanton and wilful conduct and the third count which charged negligence and found the defendant guilty under the third count only. We cannot assume in that state of the record that the jury might have been misled by the instructions providing for exemplary damages in the event of finding the defendant guilty of wanton and wilful conduct.

A number of physicians and surgeons testified to the nature and extent of the plaintiff’s injury, pain and suffering. There was evidence showing that the clavicle and scapula and connecting ligaments were torn apart and displaced and that a new shoulder had to be built by a surgeon in Chicago from fascia taken from one of the limbs of the plaintiff; that the use and mobility of the shoulder and arm was greatly restricted and weakened and that this condition was permanent ; that the plaintiff, an uneducated man who was obliged to depend on physical labor for his livelihood, would be unable to perform ordinary manual labor thereafter.

In view of these facts, which were submitted to the jury, we do not find the amount of the verdict to have been contrary to the manifest weight of the evidence. While the record herein is not entirely free from error, we hold that substantial justice has been done between the parties and that no reversible error appears in the record.

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

Judgment affirmed.


text:
    The American State Bank of Bloomington, Illinois, Executor of Last Will and Testament of Christiana Wissmiller, Deceased, Appellee, v. Rosa Blum et al. Rosa Blum, Appellant.
    Gen. No. 9,136.

      Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    Schneider & Schneider and Sidney H. Dilks, all of Paxton, for appellant.
    Carter Pietsoh and C. 1ST. Coolidge, both of Bloomington, for certain appellee.
    Morrissey & Morrissey, of Bloomington, for certain other appellees; John J. Morrissey, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Plaintiff appellee, The American State Bank of Bloomington, a corporation, executor of the last will and testament of Christiana Wissmiller, deceased, filed its complaint in the circuit court of McLean county seeking certain equitable relief, to which appellant Bosa Blum and numerous other defendants answered, and Bosa Blum filed a counterclaim also praying equitable relief. Answers thereto were filed and the cause, upon issues joined, was referred to and heard by a special master in chancery, whose report was approved, and objections thereto, standing as exceptions, were overruled by the court, and a decree entered in favor of the plaintiff, from which this appeal was taken.

It appears that Jacob Wissmiller died testate on or about the 10th day of July, 1913, owning in fee simple the southeast quarter of section 17, township 24 north, range 4 east of the third principal meridian, McLean county, Illinois, and other lands not directly involved in this proceeding.

His will and a subsequent codicil thereto were admitted to probate on August 22, 1913. The will devised the above described tract of real estate to his son, John Wissmiller, subject to the payment of a legacy of $6,000 to Rosa Blum, one of testator’s four daughters, to each of whom similar legacies were so given and made hens upon other lands therein described. He directed that said respective legacies of $6,000 each be paid to his daughters by his sons within 5 years from the first day of March next following his death and should bear interest at the rate of 5 per cent per annum from and after the first day of March next following after 2 years from his death until fully paid.

It was further provided that upon payment of such legacies, each of his daughters was to give a release or acquittance, executed in due form of law, to the devisee of said respective tracts, to be recorded and so evidence the satisfaction of said liens.

In a codicil to his will, he later devised the above described tract of land to his wife, Christiana Wissmiller, subject to the payment of said $6,000 legacy by her to the daughter, Rosa Blum, which was directed to be paid by his wife in like manner and upon the same terms as had been provided in his said will for the payment thereof by his son, John Wissmiller. All of the daughters except Rosa Blum later executed releases which were duly recorded.

Christiana Wissmiller went into possession of the real estate at Jacob’s death in 1913 and held the property until she died testate on October 9, 1935. Her last will and testament made in 1930 was admitted to probate on December 2, 1935, and provided in substance that the American State Bank, executor and trustee under her will, was to sell and convert into money all property owned by her, including said farm and her home place in Bloomington, and that it distribute the proceeds in equal shares among her eight children or their respective descendants named in the will. Her said daughter, Rosa Blum, was to receive an eighth part as one of said distributees.

The bank, as executor, by virtue of the power and direction given under the will, offered the real estate in question at public auction. A purchaser, Mrs. Kraft, bid the sum of $24,204.60 for said tract, and after causing examination of the abstract of title, refused to complete the payment of the purchase price because there was no showing of record that the $6,000 legacy of Rosa Blum provided for by the will of Jacob Wissmiller had been paid, and the lien discharged. The bank then filed this suit.

The complaint alleges that said legacy was paid by Christiana Wissmiller or some one in her behalf and that no release of the lien was given, and in the alternative alleges that the lien of $6,000 has expired by lapse of time and is barred by laches and the statute of limitations, and that the bank is unable to complete its duties as executor and trustee because of the apparent record existence of the lien created by the will of Jacob Wissmiller, and prays that the lien be declared void and that Rosa Blum be barred and restrained from any right, title or interest in the premises. Rosa Blum and all children of Jacob Wissmiller or their surviving heirs were made parties defendant to the complaint, and all defendants except Rosa Blum filed answers admitting the allegations set forth therein. An answer and amended counterclaim was filed by Rosa Blum. After a motion to strike the amended answer and counterclaim of Rosa Blum was overruled, plaintiff answered the counterclaim, specifically pleading that the legacy sought to be declared an existing lien and ordered paid to Rosa Blum under her counterclaim, had been paid in full, or in the alternative was barred by the statute of limitations and laches.

After the issues were joined on the complaint and counterclaim and evidence was taken, Rosa Blum filed a motion to dismiss the original complaint of the plaintiff for want of jurisdiction, which motion was denied. The trial court entered a decree after the evidence had been so heard by the special master and findings made by him in his report, which recommended denial of the relief prayed in the counterclaim of Rosa Blum; finding that the lien had expired by lapse of time and laches, and directed the bank, as executor, to proceed with the settlement of the estate of Christiana Wissmiller by completion of the sale and division of the proceeds according to the terms of her will.

The primary purpose of the executor in filing its suit was to determine whether the legacy was paid, and if not paid, whether it was barred by the statute of limitations or by estoppel on account of laches.

Upon the first question, it appears from the greater weight of the evidence that the defendant and counter-claimant, Rosa Blum, received from her mother the sum of $1,500 as part payment and credit upon her $6,000 legacy on the 29th day of February, 1916, as evidenced by her signed receipt therefor; that she received thereon in February, 1917, a further sum of $1,025 as evidenced by a check for said amount paid to her by her brother, John Wissmiller, since deceased, for the mother and received by Rosa Blum, as shown by her indorsement thereon. It further appears that the mother, Christiana Wissmiller, had been very diligent in procuring for her four daughters large amounts in addition to the legacies provided for in the will because she felt that they were not receiving a fair share out of the estate devised to the sons by their father, Jacob Wissmiller. To prevent litigation between the sisters and brothers, the mother, in 1913, brought them together at one of their homes and by her active intercession, brought about a settlement under the terms of which this defendant, Rosa Blum, was paid an additional sum of $9,000 by her brothers.

Between September 22, 1918, and March, 1920, after the above $1,500 and $1,025 credits were made on the $6,000 legacy by the mother to the daughter, within the year when the legacy became due on March 1, 1919, the bank deposit records of the mother’s account in evidence showed that there was deposited and withdrawn from her accounts an amount in excess of $8,000. No large deposits and no large withdrawals in her account appeared at any other period between 1914, when the account was opened, and 1931, when it was closed and she moved from her home in Bloomington to her daughter Mary’s home in Normal, where she died in 1935.

The further circumstances may be noted that the mother, who had been active and circumspect in bringing about payment of various sums to and for the daughters, executed her own will in 1930, in which she expressly gave $1,000 to the daughter, Mary Sutter, on account of caring for her during illness and made express provisions for an equal division among all eight children or their respective descendants of the entire residue of her property to be equitably converted by her executor into cash, and so divided, including the farm in question and the home property in the city of Bloomington.

It does not appear from any competent evidence that during the many years after the $6,000 bequest became payable to Rosa Blum in 1919, she made or took any legal steps or efforts to collect the same prior to the death of her mother in 1935, or that for a period of more than one year thereafter she had either filed any claim against the estate or made any claim or mention to the executor in relation thereto.

It further so appears that upon subsequent inquiry by the executor as to whether or not she had been paid, she answered evasively and did not claim that she was not paid, but asked whether there was any proof that she had been paid; that when her brother and sister called at her home at Sibley, she again made no claim that she was not paid, but inquired of them if they had any proof that she had been paid. At these times there was every reason for her to speak out and make or assert claims or that she present any unpaid claim which she may have had.

All of these and other circumstances in evidence tended to indicate that she had been paid or that if not paid, she had waited until those who knew the facts and circumstances had departed this life and would be prejudiced by any stale or paid up claim advanced by her that would otherwise be barred by the doctrine of laches or by the express provisions of the statute of limitations. When a party permits a debt to run, making no effort to collect it until the statute of limitations can be pleaded in bar of the action, he is in no position to call upon a court of equity to aid him upon slight proof; on the contrary, the evidence ought to be clear and satisfactory to overcome the bar of the statute.

It is insisted by the appellant that the provisions in the will of Jacob Wissmiller that the legacy was to bear interest until fully paid would operate to prevent the running of the statute or estoppel by laches. In the well reasoned opinion in the case of McKeage v. Coleman, 294 Ill. App. 232, 13 N. E. (2d) 662, and citations therein, where legacies were made payable by a devisee receiving real property under the will, it was held that the devisee did not become a testamentary trustee creating a relationship of trustee and cestui que trust whereby the bar of the statute would not operate, but that the payment of such legacy became an equitable lien or charge against the land in its nature similar or analogous to that of a mortgage and that when the same became due and payable under the terms of the will, the statute of limitations would begin to run, and that a failure to assert the legatee’s claim for a sufficient length of time would, in equity, in the absence of circumstances excusing the same, render such a claim subject to estoppel by laches.

The master heard the testimony and found that the legacy of Rosa Blum had been fully paid. The master further found that the claim had, through the lapse of time, become barred by laches. Objections to the master’s report were overruled and standing as exceptions before the trial court, said exceptions were overruled.

We hold that the trial court was justified on the facts in this case in ruling that the legacy in question was in the nature of an equitable lien on the real estate in question as against the devisee and not as creating a trust relationship between said devisee and legatee and was therefore subject to the defense of estoppel by laches. Under the facts herein, the claim of Rosa Blum became fully due and payable on March 1, 1919, and the 10-year statute of limitations, Ill. Rev. Stat. 1937, ch. 83, ¶ 17 [Jones Ill. Stats. Ann. 107.276], then began to run, and the same was barred on March 1, 1929, during which period no suit was broug'ht to enforce said claim and no credit was paid thereon, and no sufficient facts are shown by competent legal evidence to raise the bar of the statute in equity.

We further hold the doctrine of laches to apply because the condition of the parties had materially changed, and evidence necessary to establish any payment or nonpayment of the claim in question had been lost or rendered unavailable and incompetent by reason of the death of the testatrix and other witnesses who were conversant with the facts. When necessary material evidence is lost on account of the lapse of time whereby the interests of other persons become prejudiced, equity will not intervene to aid the one who has slept on his rights.

The defendant, Rosa Blum, did not establish by competent legal evidence the right to relief prayed in her counterclaim; hence we hold that the same was properly denied by the court.

The brief of appellant raises the further question as to whether or not the executor was vested with such title in the premises as would authorize him to seek the affirmative equitable relief prayed for in the complaint or whether the executor possessed a naked power of sale only. If this case were submitted upon the original complaint and answers alone, it would become necessary for the court to pass upon that issue, but since the defendant, Eosa Blum, has filed her amended counterclaim directly raising the issue of whether or not her legacy remains in effect as an equitable lien against the lands in question and prayed for affirmative relief, coupled with a prayer for general relief, to which amended cross complaint, all parties having any interest in the real estate or under said will, have filed their respective answers upon which issues were joined, we hold that the court had jurisdiction of the subject matter and of the parties for the purpose of granting all necessary relief upon the issues involved.

No reversible error appearing in the record, the decree of the circuit court of McLean county will be affirmed.

Decree affirmed.


text:
    DePauw University and Margaret C. Parrett, Appellees, v. United Electric Coal Companies, Appellant.
    Gen. No. 9,162.

      Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    Gunn, Pehwell, Lindley & Burk, of Danville, for appellant.

      Jones, Grant & Sebat, of Danville, for appellees.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The defendant, United Electric Coal Companies, a corporation, has appealed from an order of the circuit court of Vermilion county overruling its motions to strike certain portions of and to dismiss the complaint of the appellees, DePauw University, a corporation, and Margaret C. Parrett, and from judgment against the defendant in the sum of $2,074.31 and costs entered upon default in failure to answer pursuant to rule and on proofs heard.

The complaint alleged in substance that on January 26, 1927, John H. Harrison and W. J. Parrett, as lessors, entered into a written 10-year lease with the defendant, as lessee of certain premises therein described ; that each of the plaintiffs holds a half interest in common in the said lease and property, acquired by them as respective legatees and devisees of said lessors, who have since died testate and whose wills were duly probated; that it was verbally agreed and understood between the parties that the term of the lease should be 10 years from the date of possession; that the rooms were completed and possession taken on December 31, 1927, and monthly rents paid thereunder to September 1, 1937, but that defendant failed and refused to pay rentals for the last four months of the 10-year term ending December 31, 1937, and prays judgment for $2,000 and interest as damages.

The provisions of the written lease, a copy of which was attached, are as follows:

“That the parties, Lessor and Lessee, for and in consideration of One Dollar ($1.00) by each to the other paid, and in further consideration of the mutual undertakings and agreements of the parties hereto, have agreed, and do hereby agree together, in the manner following, to-wit:

“First: Lessor owns, and hereby leases and lets, to Lessee, the certain ‘Booms’ hereinafter designated, in the office building of Lessor, situated at Nos. 139 and 141 North Vermilion Street, Danville, Illinois, known as the ‘Adams Building,’ and located on Lot Number Six (6), Block Four (4) North, Bange One (1) East of the Public Square, in Hezekiah Cunningham’s Addition to the City of Danville, Vermilion County, Illinois, To have and to hold said leased premises to Lessee, for the ‘Term’ hereinafter indicated.

“Second: Lessee agrees to pay as rental for said premises, the sum of money, hereinafter designated as ‘Monthly Bental,’ on the first day of each and every month, during said term.”

Clauses numbered third to seventh concern heating, light, water, elevator service, repairs and maintenance of the premises, and relate generally to terms of cancellation and for surrender of the lease without demand ‘ ‘ at the expiration of said term. ’ ’

“Eighth: This contract shall extend to, and be binding upon, the parties hereto, and their respective heirs, administrators, and executors.

“ ‘Booms:’ All the Fifth Floor, to be built and arranged approximately as shown on blue prints and specifications prepared by Lewis & Dougherty, architects, with option in the Lessee to modify arrangement of rooms and specifications to meet its requirements.

“ ‘Term:’ Ten (10) years, beginning on the 1st day of September, 1927, or thereabout.

“ ‘Monthly Bental:’ Five Hundred ($500.00) Dollars per month; rent to start from time possession is taken.”

Defendant’s motion to dismiss alleged that the complaint was substantially insufficient in law to state a cause of action; that there can be no recovery under the terms of the written contract attached to and made a part of the complaint; that it has undertaken to extend, by alleged verbal agreements, the 10-year term of the written lease in violation of the statute of frauds, Ill. Rev. Stat. 1937, ch. 59, 2 [Jones Illl Stats. Ann. 55.02], and that such verbal terms were merged in the written agreement.

Stripped of its surplusage, conclusions and allegations as to certain verbal statements or agreements referred to and set up in a bill of particulars, and considering only facts well pleaded concerning the written lease in question, and possession and rental payments thereunder, it appears that the complaint concerned a lease to the defendant of the rooms constituting the fifth floor of the Adams building in the city of Danville, to be built and arranged according to blue prints and specifications prepared by architects named therein and to be used for office purposes by the defendant company; that said lessee agreed to pay as monthly rental on the first day of each and every month during the term of the lease a sum of $500, which rent was to start from the time possession was taken; that the term of said lease was fixed at 10 years, during which term the lessee was “to have and to hold said leased premises”; that said lessee entered into possession of said premises after their completion according to the terms specified, on December 31,1927, and so continued therein and paid such rental of $500 per month for 9 years and 8 months thereafter; that said lease refers to the term as “ten years beginning on the first day of September, 1927, or thereabout” and that on said date the rooms were not completed and ready for occupancy and were not occupied by the defendant until 4 months later.

The plaintiffs contend that the “term” of the written lease, when all provisions and purposes thereof, as set forth, are considered together, extended from December 31,1927, to December 31,1937, and that there was, therefore, remaining dne and unpaid such rental of $500 per month for the 4 months of September, October, November and December, 1937.

The defendant contends that under the terms of said lease, the 10-year term began on September 1, 1927, and expired on September 1, 1937, at which time possession of the premises was surrendered by it, and to which date its rentals were paid in full.

The intention of the-parties is to be gathered from all the provisions of the contract, when considered together, and to ascertain this intention, regard should be had to the nature of the instrument, the condition of the parties executing it and the object and purposes which they had in view. Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 43 N. E. 774, 31 L. R. A. 529.

A valid term for years may be created to begin in futuro. Where the lease does not expressly fix the beginning of the term, the entire contract will be looked to in order to ascertain, if possible, the intention of the parties. The date of the lease does not necessarily affect the beginning of the term, although it may be regarded as the date of the commencement of the term where no other time is indicated by the agreement. A provision in the lease as to the time from which the rent shall run may be indicative of the intention of the parties as to the beginning of the term. 35 C. J. 973, par. 50; Laskey v. Bew, 22 Cal. App. 393, 134 Pac. 358.

The duration of a term, as in the case of its commencement, is governed primarily by the provisions of the lease; and when not precisely defined, it may be ascertained by a reference to the covenant as to rent, or to the amount of rent paid thereunder, or other provisions which, when construed together, make the intention and purposes of the -parties clear. Burris v. Jackson, 44 Ill. 345; Siegel, Cooper & Co. v. Colby, 61 Ill. App. 315, aff’d 176 Ill. 210, 52 N. E. 917; Holmes v. Parker, 25 Ill. App. 225; 35 C. J. 973, par. 51.

In 16 R. C. L. 607, section 87, it is said: “A leasehold estate, . . . such as a term for years, may be created at common law to commence in fntnro, for in such a case a present interest vests, called an interesse termini, though not an interest in possession until the lessee enters into possession. The time between the making of the lease and its commencement in possession is no part of the term granted by it. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. It is the estate or interest which he has in the land itself by virtue of the lease from the time it vests in possession. ’ ’ Young v. Dake, 5 N. Y. 463, 55 Am. Dec. 356.

Assuming that the plaintiff herein sought to dispossess the tenant before the end of the 10-year period, during which he held possession and was regularly paying his rent, can it be said that the construction contended for by the defendant herein would prevail against him? We think not. Under the terms of this contract, it must be taken as bilateral and not unilateral in its effect.

It is evident that in construing this lease, the date of which was January 26, 1927, the purpose for which it was entered into, the provisions concerning the building and alteration of the rooms according to the fixed plans and specifications set forth therein; that the date “first of September, 1927, or thereabout” is a qualifying phrase apparently used by the parties because the exact date of occupancy could not then be fixed, and the rental was to begin only upon the date of its occupancy for the purposes for which the tenancy was created.

We hold that the meaning of the contract, when all of its terms are so construed together, is that neither the date it was written nor the date of “the first of September, 1927, or thereabout” are controlling in arriving at the exact time when the term provided for in futuro began, but the date of its occupancy for the purposes for which it was altered, when possession was so taken by the tenant, and from which day he began payment of rental at $500 per month made payable monthly during the entire term of the lease, which was fixed at 10 years, can only mean that the written lease began on December 31, 1927, and ended on December 31, 1937.

It has frequently been held that where the purposes or provisions of a lease fixed the beginning of its term at some future time according to some definite event to which reference is made, the happening of this event is controlling and may be shown by the evidence.

We deem paragraph 6 of the complaint, referring to what was verbally agreed as to the time the term began, and all references thereto in the bill of particulars, to be surplusage and subject to the objection that an attempted verbal understanding would be within the statute of frauds, and this paragraph might well have been stricken. However, from the facts well pleaded, a cause of action upon the written contract is stated, and under the rule that all facts material to the issue that are well pleaded are to be taken as admitted for the purpose of the motion to dismiss, it appears that a good cause of action has been stated, and that the circuit court did not err in overruling defendant’s motion to dismiss the complaint and in entering judgment in the sum of $2,074.31 upon proof heard, for rental and interest remaining due and unpaid for the last 4 months of the term of the written lease.

Appellant has failed to brief or argue assignment of error for interest allowed, hence we deem said objection to be waived.

Respective counsel have cited numerous authorities concerning the rules applicable to the construction of contracts in courts of equity as well as cases in which the cause of action was predicated upon oral contracts within the provisions of the statute of frauds. Neither line of decisions have proved materially helpful to the court in the construction of a written contract which was declared upon in a suit at law.

The judgment of the circuit court of Vermilion county will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Fulton

text:
    John Katsinas, Appellee, v. Colgate-Palmolive-Peet Company, Appellant. George Hoffman, Defendant.
    Gen. No. 9,121.

      Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    Dobbins, Dobbins & Thomas, of Champaign, for appellant; R. F. Dobbins and John J. Bresee, of Champaign, of counsel.
    Busch, Harrington & Tate, of Champaign, for appellee; Earl C. Harrington and C. E. Tate, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

The plaintiff, John Katsinas, appellee here, brought suit in the circuit court of Champaign county against the Colgate-Palmolive-Peet Company, a corporation, the appellant, and George Hoffman, to recover damages for injuries received by appellee in an automobile accident. The complaint consists of two counts, in each of which it is charged that the defendant George Hoffman, negligently operated his automobile so that it collided with the automobile of the appellee causing the damages for which the action was brought. The complaint further charged that at the time of the collision the defendant Hoffman was the agent and servant of the Colgate-Palmolive-Peet Company.

The appellant answered denying all the material allegations of the complaint. George Hoffman, the other defendant, filed his written entry of appearance but filed no other pleadings in the cause and appeared only as a witness for appellee.

On the trial before a jury, a verdict was returned in favor of the appellee for the sum of $3,500, on which judgment was entered. The Colgate-Palmolive-Peet Company, the only appellant seeks to reverse such judgment by this appeal.

The accident happened in the city of Champaign at the intersection of Neil street which runs north and south, and Springfield avenue, which runs east and west. Neil street at this intersection was State Route No. 25 and Springfield avenue was State Route No. 10. Regulation State stop signs were in place on the east and west sides of Neil street at Springfield avenue.

On the 3rd day of October, at about the hour of 11:15 p. m. the appellee, John Katsinas, was driving a Pontiac sedan owned by him in a southerly direction on South Neil street. He was the owner of two restaurants and taverns in the city of Champaign and was familiar with the intersection. He testified that on the evening in question, he was driving about 20 miles per hour and as he approached the intersection with Springfield avenue he looked to the left and saw no one approaching from the east. On looking west he saw a car about 150 to 175 feet to the west and he then proceeded into the intersection. When he reached a point where the front of his car was practically even with the south side of the intersection, the car coming from the west, driven by the defendant George Hoffman, crashed into the right side of appellee’s car, knocking his car to the southeast corner of the intersection. The Chevrolet coach, driven by Hoffman, was turned over in the intersection. Appellee was severely injured and taken to the Burnham Hospital in Champaign. Hoffman was also seriously injured.

A witness, William Marshky, called by the appellee, testified that he was a resident of the city of Champaign and quite familiar with the intersection where the accident occurred; that on the night in question he was driving north on Neil street and approached the intersection at about the same time with appellee; that he observed both cars approaching and as he looked the car from the west was traveling at a speed of 15 or 20 miles per hour and was then 10 or 15 feet west of the intersection. After he passed the intersection the collision occurred. There were no other eyewitnesses to the accident.

The record presents the following questions to be determined by this court: 1. The effect of alleged prejudicial remarks by the trial court. 2. Did John Katsinas, the appellee, fail to prove that he was in the exercise of due care for his own safety? 3. Was there competent testimony showing that George Hoffman was guilty of negligence? 4. What was the relationship between the appellant corporation and the defendant George Hoffman? 5. Refusal of instruction offered by appellant.

It is well settled that the law does not permit the Presiding Judge to give to the jury his opinion on a controverted question of fact. Andreas v. Ketcham, 77 Ill. 377. Such opinions might readily Mas or prejudice a jury as to any material fact in controversy. We have carefully examined the remarks complained of and while it might be said that the trial court expressed some impatience over the amount of time consumed on one phase of the evidence, there was no expression of an opinion on any really controverted question of fact. Neither do we find there was any such comment by the Presiding Judge on the manner of conducting the trial of the case that could be construed as prejudicial.

The question of contributory negligence is one preeminently for the consideration of a jury as such negligence cannot be defined in exact terms, and unless it can be said that the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of the jury. Blumb v. Getz, 366 Ill. 273. The question of due care on the part of a plaintiff is always a question of fact to be submitted to a jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on the part of such plaintiff. Thomas v. Buchanan, 357 Ill. 270. The testimony of the appellee and the witness Marshky contains facts which compelled the trial judge to submit the question of contributory negligence to the consideration of the jury, and prevented him from finding, as a matter of law, that Katsinas failed to prove that he was in the exercise of due care for Ms own safety just prior to and at the time of the accident.

The same set of facts and the same authorities are also conclusive on the question of the negligence of the defendant George Hoffman. The testimony of appellee that at the time he entered the intersection the automobile of Hoffman was then 150 feet west of Neil Street; that appellee was struck when he proceeded immediately into the intersection at a point when the front of Ms car reached a point almost at the south line of the intersection, coupled with the fact that there was a State stop sign on Springfield avenue just west of Neil street, are all facts from which the jury might legitimately and reasonably infer negligence by Hoffman in the operation of his car.

The evidence showed that Hoffman was employed by the Colgate-Palmolive-Peet Company as a display man and salesman; that it was necessary for Hoffman to have a car; that he acted under the instructions and supervision of the supervisor of sales for appellant in central Illinois; that while there was a conflict in the evidence as to where Hoffman was on the evemng and night of the accident," the testimony of appellee’s witnesses, other than Hoffman, stated positively that he called upon merchants in Monticello, Cisco and Argenta between the hours of 7 and 9 o ’clock on the evening of October 3rd, and that the said towns were from 20 to 40 miles distant from the city of Champaign. There was further evidence of his reporting to the appellant company as to his location for the night, his manner of reporting expense accounts and his movements for each day and the fact that his automobile just after the accident contained a supply of display cards and certain samples and products of the appellant corporation. Hoffman was required to cover territory as directed by the supervisor of sales but his method of operation proceeded without apparent interference by his employer. The supervisor of sales had the power to discharge Hoffman at any time. Where the work is not of a character requiring a great deal of supervision, failure to supervise does not change the relationship of employer and employee. Franklin Coal & Coke Co. v. Industrial Commission, 296 Ill. 329. Since the contract of hiring in this case was not in writing and could only be shown by parol evidence, the determination of its terms was properly submitted to the jury under proper instructions by the court. Shannon v. Nightingale, 321 Ill. 168. Thiel v. Material Service Corp., 283 Ill. App. 46. In the present case we do not think the court erred in submitting to the jury the question as to whether or not George Hoffman was an independent contractor or acting as an agent and servant of the appellant at the time of the injury.

Lastly, the appellant contends that the court erred in refusing to give to the jury a peremptory instruction covering the question just reviewed. In three or four other instructions offered by appellant and given to the jury the principle of law embodying the doctrine of master and servant and the duty of the appellee to show that the servant or agent was acting within the scope of his employment at the time of the injury complained of were fully covered. We believe the jury were properly and fully instructed as to the law applying to the facts in this case.

Finding no substantial error in the record the verdict of the jury and the judgment of the circuit court will be affirmed.

Affirmed.