text:
    G. F. Wettaw, Appellee, v. Retail Hardware Mutual Fire Insurance Company et al., Appellants.
    Opinion filed November 19, 1936.
    Silber, Clausen, Hirsh & Woley, of Chicago, for appellants.
    Harry J. Flanders and K. C. Ronald, both of Eldorado,' for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

The appellants, defendants, Retail Hardware Mutual Fire Insurance Company, a corporation, Hardware Dealers Mutual Fire Insurance Company, a corporation, and Minnesota Implement Mutual Fire Insurance Company, a corporation, appeal from an order of the circuit court of Saline county granting a new trial and setting aside a verdict rendered in favor of the defendants in a suit brought by G-. F. Wettaw, plaintiff, and appellee, upon insurance policies for damage to property alleged to have resulted from a windstorm, tornado, or cyclone.

The appeal was allowed under section 77 of the Civil Practice Act, Ill. State Bar Stats. 1935, eh. 110, 205, and Bule 30 of the Buies of Practice and Procedure adopted by the Supreme Court of Illinois. Appellants contend that action of the trial court in granting the new trial is contrary to law and constitutes an abuse of discretion of the trial court.

It appears that witnesses for the defendants were ' paid $2 per day for their attendance in court in excess of the statutory allowance to the witnesses. It also appears that this fact was brought out during the trial in the examination of the witnesses, and the court, jury, and counsel for the plaintiff, appellee, were fully advised of the situation, and that the plaintiff did not request the court to declare a mistrial, nor did counsel for plaintiff, appellee, take other action in respect thereto, except in their address to the jury. Plaintiff’s attorneys made the following argument to the jury on this subject:

“What evidence has the defense - to offer in this case? Paid witnesses of the insurance companies. Witnesses who would testify to anything for a few dollars. We don’t do that down in this county. I don’t need to tell you men the type of witnesses the defense has brought here before you. We didn’t discover that these witnesses were paid until yesterday, when Mr. Wettaw saw this man who is working for the insurance companies paying these witnesses $2.00 a day for their time, right out in the ante room, where you men could see it right through the glass door. Are you going to believe the testimony of witnesses who were paid by the insurance companies to come in and testify?”

It also appears (from the statement of the trial court with reference to the granting of a new trial) that during the trial a representative of the defendants was almost continuously moving in and out of the court room after each witness would testify, and that such representative passed to the counsel table after each such trip and conferred with counsel. It further appeared that payment of the witnesses above referred to occurred just outside the court room and in view of the jurors. Complaints were made to the court by citizens other than those involved in this suit to the effect that the above noted practices were lowering the dignity of the court.

The trial court in a written statement of reasons for granting a new trial said in part:

“When the motion for new trial was presented, together with the affidavits submitted, which bore out the complaints which had been made to the court and also the things which the court observed, the court felt that in order that the courts may have a high standing in the minds of officers of courts and citizens who partake therein or observe, and that no criticism or suspicion that unjust things could be permitted in courts, the action of the court in granting the motion for a new trial was actuated principally in the desire to maintain the high prestige of the judiciary of this State which has been from time immemorial universally recognized.”

While the motion for new trial also submitted that the verdict of the jury was contrary to the law, and contrary to the manifest weight of the evidence, it was presented, argued, and granted principally on account of the foregoing irregularities in the trial of the case. This court has carefully reviewed the evidence and finds ample evidence from which the jury could reasonably arrive at the verdict rendered. The defendant’s theory that the fall of the building was not caused by windstorm is supported by the weight of the evidence.

The matter of payment of witness fees in excess of the statutory allowance has been previously considered by the courts of Illinois. In North Chicago Street R. Co. v. Anderson, 176 Ill. 635, on p. 640, the court clearly indicates that such matter goes to the weight of the testimony and is a matter for the consideration of the jury. The court there said, approving a modification of an instruction: “The same observation holds good as to Instruction No. 23 asked by appellant which was to the effect, ‘the fact that a witness has been promised pay for time lost while attending the trial of this case does not in anywise tend to impeach his credibility as a witness,’ and which the court modified by an addition advising the jury that they might consider the fact that the witness had been promised pay, together with all the other facts in evidence, in determining the weight of the testimony of the witness.” In Tague v. Chicago City Ry. Co., 181 Ill. App. 346, on p. 348, the court said of a similar agreement: ‘ ‘ There is nothing- in the record to support the belief that they perjured themselves. The fact, freely admitted, that defendant promised to make good any wages they might lose while attending court, is hardly sufficient alone, in view of ,all the other evidence to justify such a belief.” In Chicago West Division Ry. Co. v. Conley, 43 Ill. App. 347, on p. 349, the court said: “Whatever handle before a jury may be made of such payments, by an attorney gifted with extraordinary powers of invective, it ought not to impeach the credibility of witnesses that a party litigant does not insist, even as to resident witnesses, upon its legal right to compel them to attend in its behalf even at a loss to themselves.”

In view of these holdings, and in view of the full advantage taken by counsel in examination of witnesses and argument to the jury, it would not be proper for the trial court to order a new trial on the sole ground of payment of witness fees slightly in excess of the statutory allowance. It is difficult to arrive at the conclusion that the plaintiff was prejudiced by these facts.

The other conduct of the defendants referred to by the trial court, especially the annoyance to those conducting the trial and the payment of witnesses within sight of the jury, undoubtedly tended to affect the dignity and honor of the court. It created an unseemly appearance and it deserved the reprimand of the court. However, the plaintiff did not seek to have a declaration of mistrial. The disturbances stopped when the court ordered them stopped. Plaintiff chose to speculate on the verdict. The language of the court in Chicago & Erie R. Co. v. Meech, 163 Ill. 305, on p. 317, seems appropriate here: “It is finally urged that the Superior Court erred in not granting a new trial for prejudicial conduct of the plaintiff in the presence of the jury. This contention has reference to the transaction to which allusion has just been made. The fact that a plaintiff or defendant or witness or any other person suddenly swoons or faints or gives vent to hysterical exclamations, or breaks down with hysteria does not call for the granting of a new trial, — and especially when the party claiming to be prejudiced does not ask for the withdrawal of a juror and continuance of the case, lout lies log and speculates on his chances for a verdict. It is hardly probable that the occurrence in question affected, in any way, the verdict. If it had any effect, it was as likely to prejudice as to help the case of the plaintiff.” In the case of Mastin v. National Tea Co., 278 Ill. App. 60, on pp. 63 and 64, the court said on this subject: “The trial proceeded and the defendants continued to offer evidence. The failure of the witness to return was not made the subject of any objection at any time during the trial, and no doubt if it had been properly called to the attention of the trial court, a motion for leave to withdraw a juror and the case continued would have been considered. The defendants speculated as to the outcome of the cause, and having submitted the cause to the jury, are not now in a position to complain. If the witness Snell was subject to punishment for contempt of court in failing to return, such action should not have deprived the plaintiff of the benefit of the testimony of this witness.”

It is true that the trial court has more latitude in passing on the verdict of a jury than this court has. Gavin v. Keter, 278 Ill. App. 308, on p. 315; Adamsen v. Magnelia, 280 Ill. App. 418, on p. 422. The trial court here has given a written statement of reasons for granting the motion for new trial, a procedure recommended by the First District Appellate Court in the case of Gavin v. Keter, supra, p. 316. From such statement we are enabled to determine that the granting of the motion was based upon the irregularities we have noted rather than upon the weight of the evidence. While the trial court is entitled to wide discretion in such matters the action of the trial court is nevertheless subject to review, and in a similar case such action has been reversed: Mastin v. National Tea Co., 278 Ill. App. 60, on p. 64.

The trial court erred in granting a new trial of the cause. The order of the circuit court of Saline county granting a new trial will therefore be reversed and the cause remanded to the circuit court with directions to enter judgment for the defendants in accordance with the verdict.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    Sears Roebuck and Company, Appellant, v. Piasa Building and Loan Association, Appellee.
    Opinion filed November 9, 1936.
    Rehearing denied December 14, 1936.
    Terry, Gueltig & Powell, of Edwardsville, for appellant.
    Gilson Brown, of Alton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal by Sears Eoebuck and Company, appellant, from a judgment of the circuit court of Madison county that it have and retain certain plumbing supplies and fixtures for which it had commenced an action in replevin. This cause was heard on a former appeal and the facts are fully set forth in the opinion of the court in Sears Roebuck & Co. v. Piasa Bldg. & Loan Ass’n, 276 Ill. App. 389.

Appellant assigns as error the refusal of the trial court to enter a judgment in its favor for the value of the property in trover, and the entry of the above mentioned judgment in its favor in replevin.

Appellant contends that the replevin action originally instituted by it before a justice of the peace, became by virtue of section 18 of “An Act to Revise the Law in Relation to Replevin” (Ill. State Bar Stats. 1935, ch. 119,1Í18) an action in trover, upon the failure of the officer to deliver up the property in pursuance of the writ.

Section 18 provides:

“When the property or any part thereof has not been found or delivered as aforesaid, and the defendant is summoned or enters his appearance, the plaintiff may proceed, under original or amended complaint, as in an action for the wrongful taking and detention of such property or so much thereof as is not found and delivered to the sheriff, constable or other officer, and as to the property not found and delivered, the plaintiff, if he shall recover, shall be entitled to judgment for the value thereof or his interest therein, and such damages as he shall have sustained by reason of the wrongful taking and detention. ’ ’

The constable’s return on the writ is as follows:

‘ ‘ The plaintiff having given bond, as required within, which bond is hereto attached, I have personally served the within writ by leaving the property described in Klinke Building at 550 East Broadway, and reading said writ to said defendants Sec., Otto Cliichler Sec., and Barney Arst, this 5th day of August A. D. 1932.”

The parties agreed upon a default before the justice of peace and agreed that if settlement of the cause could not be had, appeal would be taken to the circuit court by the defendant. A money judgment was entered in favor of the appellant.

The cause was formerly tried in the circuit court on appeal from the justice of the peace, and judgment was entered in favor of the appellee, defendant in the original suit in replevin, that it have and retain the property.

On the former appeal above referred to this court reversed the judgment of the circuit court and remanded the cause for a new trial and for such other proceedings as justice might require, and judgment was given that appellant recover its costs.-

In our former opinion we said: “Appellant has made no claim for damages for the detention of the chattels replevied, hence, it should only be adjudged to have and retain the same.”

Appellant has never, of record, declared in trover.

Certain allowances must be made for confusion which can arise where suits are begun before a justice of the peace and in consequence thereof no written pleadings are filed. However, a careful re-examination of the proceedings on the former appeal discloses that appellant has now raised, for the first time, the claim that, as a matter of law, it is entitled to a money judgment instead of a judgment that it have and retain its property.

Appellant’s statement of the case on the former appeal begins: “In this case, commenced in a justice court, and appealed to the Circuit Court, appellant herein referred to as plaintiff, seeks, by replevin to obtain possession of certain plumbing goods described in the affidavit of replevin. ...” Appellant’s prayer for relief in the fomer appeal was: “We respectfully urge that the judgment of the trial court should be reversed, and judgment entered here in favor of appellant awarding it the property replevined, or for the value thereof, as represented by the balance due on the purchase price of the property, totaling $399.50, concerning which there is no dispute, or that the case be remanded to the trial court for a new trial according to law.”

All of the propositions of law which appellant on former appeal asserted the trial court had erred in refusing, concerned appellant’s right to possession. Neither in the points relied on for reversal, nor the brief, nor the argument on former appeal, did appellant claim anything other than the right to possession.

Neither did appellant on former appeal, in its statement of facts or elsewhere, suggest to this court the difficulties which it now claims arise from the method of serving the replevin writ. Neither did appellant state that it had declared or had attempted to declare in trover.

Appellant did not apply for a rehearing. Appellee’s petition for a rehearing was denied.

Appellant, having prayed for relief in the alternative, and having stated its case at every possible step in such a manner as to direct one of the alternatives, now asks the court to consider new matter pointing to the other alternative and says that the relief it obtained is of no value.

The long established rule that all questions which might have been presented to this court in a single suit on appeal are settled as conclusively by the decision in the suit as if they had been presented, does not require citation of authority.

It is not necessary or proper for this court now to pass on any of the new questions presented, in any other way than to hold that we cannot review the propriety of the relief prayed for and granted on the former appeal or the propriety of the judgment of the trial court following the holdings of this court on the matters presented to this court by the record.

We find nothing in the record to indicate that a practical issue has been presented on the matter of the effectiveness of the judgment given.

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

Affirmed.


author: Mr. Justice Edwards

text:
    A. J. Hampton, Appellee, v. W. E. Grissom et al., Appellants.
    Opinion filed November 9, 1936. .
    Denison & Spiller, of Marion, for appellants.
    Lan Haney, of Herrin, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On April 5, 1927, appellee filed his hill in chancery asking for certain relief; later, on August 8,1927, after issue joined, the cause, by agreement of the parties, was referred to the master in chancery to take and report the proofs without finding’s. The latter made his report, and on September 27, 1927, after hearing-on same, the bill was dimissed for want of equity.

Appellee, on October 8, 1927, moved the court to set aside the decree, and to allow him to present further testimony. The motion was sustained on October 11, 1927, the decree set aside, and the cause opened for the taking of further evidence. Nothing additional appears to have been done until February 2, 1932, when the court dismissed the suit “for failure of complainant to proceed with the same. ’ ’ The matter then rested until October 26, 1935, when appellee moved the court to set aside tbe order of dismissal entered February 2, 1932, and to reinstate the cause. The motion set forth that one of the appellee’s then attorneys had moved to Chicago and was practicing law there on February 2, 1932, but had not withdrawn as solicitor for appellee; that complainant did not know the cause had been set for hearing, nor that same had been dismissed, until a few days prior to the filing of such motion, whereupon he employed his present counsel to present affidavits of complainant and his former solicitor. Appellants moved to strike the motion. The court, on December 17, 1935, overruled the motion to strike, sustained the motion to set aside the order of dismissal and reinstate the cause, which was accordingly done, and appellants seek by this appeal to reverse, such rulings.

Appellants’ position is that if the court erred in dismissing the cause, the error was one of law, which could be corrected by motion only during the term at which it was entered, and. that appellee, having-failed to file same for three years and nine months, during which time 15 terms of court had elapsed, the court was without authority to set aside the order of dismissal. Appellee’s rejoinder to such contention is that the order dismissing the cause was void, hence could be attacked at any time thereafter, and the power to grant the motion could not be barred by lapse of time however great.

The rule of law is that where jurisdiction to hear the cause exists, and the parties are properly before the court, orders entered therein, which are germane to the cause, are not void, even though the court flagrantly erred in entering same. Miller v. Rowan, 251 Ill. 344; Buckmaster v. Jackson, 4 Ill. 104; 33 Corpus Juris, p. 1078, sec. 39.

That the subject matter of the litigation was one over which the court had jurisdiction, and that all of the parties were before the court, cannot be disputed; hence, within the rule stated, the order of dismissal was not void. Such order was final and appealable; Bill Board Publishing Co. v. McCarahan, 180 Ill. App. 539; and if it was erroneously entered, the error, being-one of procedure, was one of law and not of fact. Glaefke v. Western Electric Co., 145 Ill. App. 383.

The power of courts to set aside orders of dismissal, after the lapse of the term at which they were entered, has been considered by the courts numerous times. In Gray v. Ames, 220 Ill. 251, the court said: “No error of law of any kind will justify reviewing- or annulling a decree at a subsequent term in a summary manner on motion, but relief against it must be obtained by appeal or writ of error, if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree.for fraud or other similar cause. The same rule applies to this suit which has been dismissed by the court. After the expiration of the term the court is without authority to enter an order reinstating the cause and thus revest itself with jurisdiction of the person and subject matter of the suit. The suit having been dismissed, the order of May 4, 1904, attempting to reinstate it, and the decree entered upon the report of the master, were null and void and without binding force and effect.”

It was held in Pisa v. Rezek, 206 Ill. 344, that a court is without power to set aside, at a subsequent term, an order dismissing an appeal, where the motion is based upon a claimed error - of the court in applying rules of practice.

The court, in the early case of Smith v. Wilson, 26 Ill. 187, which has consistently been quoted with approval, upon the facts therein involved, said: “On the dismissal of the suit at the October Term, 1860, the appellee should have taken an appeal or sued out a writ of error. That was his remedy. At the ensuing November Term the case was off the docket; it had no longer a place in court, and the court had no jurisdiction over it to re-instate it. ’ ’

In Bill Board Publishing Co. v. McCarahan, supra, where the trial court overruled a motion to set aside an order of dismissal made at a preceding term, the Appellate Court, in affirming the denial of such motion, held: ‘1 The order of dismissal was final, and after the term went by the cause was no longer in the court, nor did any power remain in it, by reservation or otherwise, to make an order of any kind in it. Such an order as was asked for would have been void rather than erroneous.”

It thus appears that the order of dismissal entered February 2, 1932, was a final judgment; that if error ivas committed in its entry, the same was one of law and not of fact; that no power resided in the court to set aside such order at a subsequent term, and that appellee’s remedy therefor Avas by appeal or writ of error, and not by motion such as was made.

The court erred in its order of December 7, 1935, in overruling appellants’ motion to strike that of appellee’s to set aside the order of dismissal entered February 2, 3932, and in sustaining appellee’s motion to set aside such order, and reinstating the cause.

The judgment is reversed and the cause is remanded, with directions to strike appellee’s motion to set aside such order of dismissal and to reinstate the case.

Reversed and remanded with directions,


text:
    Perry Coal Company, Appellee, v. M. J. Richmond et al., Appellants, and James E. Blair and Mayme Cairns, Appellees.
    Opinion filed November 9, 1936.
    Farmer, Klingel & Baltz, of Belleville, for appellants.
    M. 0. Young, for appellee Perry Coal Co.
    J. Fred Gtlster, of Chester, for appellees James E. Blair and Mayme Cairns.
   Mr. Justice Edwards

delivered the opinion of the court. '

On September 18, 1901, Robert Blair and Mary Blair, his wife! conveyed to the Ooulterville Home Mining- Company all interest in and to the coal and salt lying under the surface of certain described lands, in consideration of one dollar and “one and one-half per cent per ton, royalty, mine run, for each and every ton of coal mined from the premises. . . . And when so mined or produced, to pay to the said grantors, their ■ heirs or assigns, the said sum of money and royalty above specified, on or before the 15th day of each month”; which agreement was filed for record the succeeding day. The grantors thereafter died intestate, leaving as their only heirs appellees James E. Blair and Mayme Cairns.

Appellees, in 1922, filed a bill to partition the said lands, in which they averred that they were the sole owners of same, as tenants in common, each owning an undivided, one-half interest therein. The. lands were sold by the master in chancery, pursuant to decree entered in such suit, and appellants M. J. Richmond, and Ella Richmond now deceased, became the purchasers thereof.

In 1930 appellee, Perry Coal Company, had by mesne conveyances become the owner of all that which was conveyed in the said instrument of September 18, 1901. Certain royalties, amounting to $227.16, had accrued on account of coal mined from said premises. The Perry Coal Company filed its bill of interpleader in the usual form, asking that appellees James E. Blair and Mayme Cairns, and appellants M. J. Richmond and Ella Richmond, interplead as to their respective contentions as to claims of ownership in said royalties, and that the court hear and determine the same. Appellees James E. Blair and Mayme Cairns filed their answer, claiming ownership of said royalties.

Ella Richmond died pending the suit, and M. J. Richmond, as her administrator, and Harold T. Richmond as her heir, were made parties defendant thereto. The said last two named parties, who, together with said M. J. Richmond, are appellants herein, filed their answer averring that in said partition suit said James E. Blair and Mayme Cairns alleged they were the sole owners of, and that no other person had any interest in such premises; that at the hearing they so testified; that the court by decree found such to be the fact; that such premises, pursuant to decree which ordered the master to make sale without reservation or exception as to the coal, were so sold, the master, prior to sale, making an announcement to that effect; that appellees did not object thereto; that in the administration of the estates of Robert Blair and Mary Blair, no coal rights were inventoried as part of such estates; and that as a consequence appellees were estopped to claim any interest in or title to either the coal underlying said premises, or the royalties resulting from the mining thereof.

Appellants also filed their cross-bill, setting forth the same facts averred in the answer; also alleging that the claims of appellees were a cloud upon their title and rig’ht to said coal and the royalties to be derived from mining same, and praying that all further royalties be decreed to be the property of appellants, and that the claims of appellees therein be vacated and voided, and canceled as a cloud upon the title of appellants thereto.

Appellees moved to strike the answer and cross-bill; the motion was sustained; appellants refused to further plead, and decree was entered holding appellees to be entitled to such royalties, and this appeal is prosecuted to reverse said decree.

In Manning v. Frazier, 96 Ill. 279, where the court had under consideration a conveyance very similar to the one in question, the holding was that the conveyance vested the grantee with ownership of the coal; that the price agreed to be paid for each ton of coal as it was removed, and settlements therefor to be made each three months, was merely a mode of ascertaining the amount of purchase money to be paid for the coal so conveyed as realty, and the transaction amounted to a sale and conveyance of the coal, on credit, and the money so to be paid was purchase money for the conveyance of the coal; that the title to the coal was in the grantee, and that the grantor had a vendor’s lien thereon to insure the payments reserved in the deed.

The deed herein not expressly reserving such a lien, it is raised in equity in favor of the vendor who has parted with the legal title without payment, and grows out of the implication of law that the seller does not intend to release his claim on the land for the purchase money. Such a lien, arising wholly by legal implication, is personal to the grantor and cannot be assigned. Gordon v. Johnson, 186 Ill. 18, 28; Small v. Stagg, 95 Ill. 39. If, however, the lien had been expressly reserved in the instrument of conveyance, it would be a matter of contract of the parties, and would be regarded as in the nature of a mortgage and subject to alienation by the grantor. Robinson v. Appleton, 124 Ill. 276; Wright v. Troutman, 81 Ill. 374; Carpenter v. Mitchell, 54 Ill. 126. By the transaction the grantee became vested with the ownership of the coal, the grantors entitled to pay therefor, as provided in the deed, and to secure such payment the law implied, in their favor, a lien upon the realty conveyed.

The vendor’s implied lien thus created is not an interest or estate in realty, nor is it a specific, absolute charge thereon, but merely an equitable right in the vendor, by a proceeding in equity, to resort to the property in case the. purchase money is not paid. 66 Corpus Juris, 1216, sec. 1075; Kukuk v. Martin, 331 Ill. 602. It is not a debt, nor a right of property, but simply a remedy for the debt. Aldrich v. Ederer Co., 302 Ill. 391.

Appellants contend that as purchasers at the partition sale they acquired whatever rights and interests James E. Blair and Mayme Cairns had in and to the said premises. This is true, and it only remains to consider what of right or interest said parties had in said lands at such time.

By the deed of September 18, 1901, all rights in and to the coal underlying said lands passed to the grantee, and there remained in the grantor only the ownership of the surface. This instrument was duly recorded the following day and was constructive notice to the public of its contents. It had been on record for a long period of time prior to the partition suit. Appellants, as purchasers, rested under the duty of examining the record, as they were chargeable with notice of all matters affecting the chain of title which' appeared of record. Blake v. Blake, 260 Ill. 70.

It is thus seen from the foregoing facts and the authorities cited that James E. Blair and Mayme Cairns, at the time of the institution of the partition suit, had no right, title or interest in or to the coal beneath the surface of said premises, but merely a vendor’s lien thereon to secure the enforcement of the terms of the sale contract of the mineral, which was “simply a remedy for the debt” and not subject to be sold under the partition decree. Of this fact appellants were chargeable with notice by the land records of the county. Appellants thus purchased the interest of James E. Blair and Mayme Cairns, which was the ownership of the land less the coal beneath its surface.

It is further urged that said last named parties are estopped to assert the vendor’s lien, for the reason that they in their petition for partition alleged that they were the sole owners of the premises; that they so testified at the hearing and produced other testimony of like character, and that the lands were decreed to be so sold, and that in fact such was done.

Where a claim of estoppel as to matters of real estate title is made, and it appears that the party asserting the same had the means of ascertaining the condition of the title by reference to the public land records, the claim cannot prevail. Thor v. Olson, 125 Ill. 365; Bradley v. Lightcap, 202 Ill. 154, 168. So here the appellants had the ready means of ascertaining the title of the complainants in the partition suit, by referring to the public records which were open to the inspection of every one. Their means of knowing the title were equal to those of the complainants, and where this is true an estoppel does not arise. Siegel, Cooper & Co. v. Colby, 176 Ill. 210; 21 Corpus Juris, p. 1131, sec. 132.

As was said in Bassett v. Lockard, 60 Ill. 164: “It was a purchase at a judicial sale, and the general rule is that there is no warranty at such a sale, but the rule of caveat emptor applies, and the goodness of the title must, be at the purchaser’s own risk. ’ ’

For which reasons we are of opinion that, the trial court rightly struck the answer and cross-bill.

Judgment affirmed.


text:
    Sparta Building and Loan Association, Appellant, v. The Estate of Beulah W. Renfro, Deceased, Appellee.

      Opinion filed November 9, 1936.
    Isaac K. Levy and David B. Levy, both of Murphysboro, for appellant.
    Chas. E. Feirich and Glenn 0. Brown, both of Carbondale, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellant, plaintiff below, seeks to hold the estate of Beulah W. Benfro, deceased, for the amount of deficiency upon the foreclosure of a mortgage. It appears that B. E. Benfro became a member and stockholder in appellant, and borrowed of it the sum of $6,000. He and his wife, the said Beulah W. Benfro, signed the member’s obligation, which was secured by a mortgage upon certain real estate of R. E. Renfro. The wife was never a member or stockholder of appellant. The mortgage was foreclosed, decree being taken in June, 1930. Pending the proceedings, Beulah W. Renfro died, her death was suggested of record, and no further proceedings were had against her in such suit, which proceeded to a decree against R. E. Renfro.

The master executed the decree by selling the real estate secured by the mortgage; there was a deficiency of $4,573.26 to satisfy the decree, and the court, upon approval of the master’s report, rendered a judgment or order of deficiency against R. E. Renfro. Appellant thereupon filed its claim for the amount represented by such deficiency, against the estate of said Beulah W. Renfro; the county court allowed the claim, the circuit court upon appeal disallowed it, and this further appeal has been perfected.

Appellee contends that the judgment of disallowance should be affirmed for three reasons: First, that no competent proof was made to sustain the claim; second, that appellant by taking a deficiency decree against R. E. Renfro alone, thereby released Beulah W. Renfro and her estate from further liability; third, that appellant was without legal authority, under the statute, to enter into the obligation in question, and that its action in that behalf was ultra vires.

Upon the first contention we are of opinion that the evidence was sufficient. The obligation or acknowledgment of indebtedness required payment at the rate of $30 per month, and $30 per month interest, until the whole amount should be liquidated. It is urged that this was not a promissory note. Ill. State Bar Stats. 1935, ch. 98, ft 205 (sec. 205, ch. 98, Smith-Hurd’s R. S. 1935), provides that" an unconditional written promise, engaging to pay on demand or at a fixed or determinable time in the future, shall constitute a promissory note. We think the writing comes, within the terms of such section.

It is also claimed that the obligation, on its face, shows that Beulah W. Benfro signed as principal, and not as surety as claimed by appellant. The proof shows that B. E. Benfro applied for the loan; that the entire proceeds were taken by him, and that Beulah W. Ben-fro did not receive any part of the money so loaned. In our opinion the proof established, that Mrs. Benfro signed as surety. It was competent to prove that a comaker of a promissory note was in fact a surety. Walker v. Chicago, M. & N. R. Co., 277 Ill. 451, 455. It is also insisted that there was no competent proof of the amount remaining due on said obligation. The testimony, was that nothing had been paid thereon, except the amount realized at the foreclosure sale. This proved the amount remaining due, and we think the proof was sufficient.

The second contention of appellee is that having proceeded to decree the deficiency judgment against B. E. Benfro alone, that the estate of Mrs. Benfro is thereby released from liability. Travelers’ Ins. Co. v. Mayo, 170 Ill. 498, is cited in support thereof. We do not think it applicable to the instant case. There, the parties were all before the court until the entry of decree and no reason existed why deficiency should not have been adjudged against all of the primary obligors. In the instant case Mrs. Benfro died pending the foreclosure suit, hence by Ill. State Bar Stats. 1935, ch. 1, If 12 (sec. 12 of ch. 1, Smith-Hurd’s B. S. 1935), which governed such situations prior to the enactment of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, 11182 (sec. 178, ch. 110, SmithHurd’s B. S. 1935), the suit abated as to her, but could continue as to the other defendant. Her personal representatives could not be joined in the proceeding ; however, the creditor might bring a separate action against the personal representatives to enforce the liability, as ruled in Gemmill v. Smith, 274 Ill. 87, and as held by this court in City of Centralia v. McKee, 267 Ill. App. 585; and as likewise stated in Stevens v. Catlin, 152 Ill. 56, 58; Eggleston v. Buck, 31 Ill. 254. We think it clear that appellant, after the death of Mrs. Renfro, which occurred in 1930, previous to the adoption of such Civil Practice Act, could not take any further action in the foreclosure suit, against her estate, but was required to bring an independent proceeding, such as this, to enforce its claim, and that its rights therein are not affected by the taking of the deficiency decree against R. E, Renfro alone.

Appellee’s principal objection to the allowance of the claim was that appellant was not authorized by the statute to enter into the obligation herein sought to be enforced; citing sec. 231, ch. 32, Smith-Hurd’s R. S. (Ill. State Bar Stats. 1935, ch. 32, 393) which enacts that a building and loan association can make no loan except to its own members, nor in excess of the amount of shares held by such member so borrowing. It further requires that good unincumbered and ample real estate secnrity shall be given by the borrower to secure the payment of the loan. Sec. 232 of the same Act further provides that such association may take as additional security life insurance on the life of the borrower or other person.

It is earnestly contended that to permit the taking of further security, by way of a person who conld not secure a loan for himself, engaging as security for an authorized borrower, is to circumvent the statute, and to permit to be indirectly done that which is not authorized by its terms, and that since Mrs. Renfro could not become liable as a borrower, she could not bind herself as security to assure the payment of a loan which she could not have procured for herself. We have not been cited to, nor have we been able to find, any decisions in this State which pass upon the question.

In People’s Bldg. & Loan Ass’n v. Billing, 104 Mich. 186, 62 N. W. 373, under a statute like ours, which in its eighth section provided, “no loan shall be made by said corporation except to its own members,” and, as here, a loan was made to a husband who was a member, and whose wife signed the obligation with him, as surety, the court said: “When the loan is made to a member, the fact that a joint obligation of such person and another is taken, or that the loan is secured by a mortgage executed by a third person, does not open the defense of ultra vires. ’ ’

The Supreme Court of Pennsylvania, in Citizens’ Saving & Loan Ass’n v. Heiser, 150 Pa. 514, 24 Atl. 733, quoted with approval from the opinion in the earlier case of Association v. Mixell, 84 Pa. 313: “Where a married woman unites with her husband in executing a mortgage on her separate property to secure a loan to her husband, which he, as a stockholder, procured from a building and loan association, it is a valid mortgage on her separate property, and, under the Act of 1859, covers the premiums due by him as such stockholder and the fines incurred by reason of his default in the payment of dues.”

Sundheim on Building and Loan Associations, 3rd Ed., page 120, par. 120, states the rule to be: “Even if improper security was given, the borrower having received the benefit of the loan, cannot defeat a recovery by setting up the defense that the transaction was ultra vires. ... A nonmember may give security or become security for a member, and in such a case is liable to as full extent as his principal, including premiums and fines.”

No authorities to the contrary have been cited, nor have we been able to find any; hence we are constrained to hold that appellant had power to enter into the contract in question, and that Mrs. Renfro’s obligation is binding upon her estate.

Aside from this there is another and forceful consideration, and that is, the right of appellee to urge ultra vires as a defense under the circumstances divulged by this record.

As said in Eckman v. Chicago, B. & Q. R. Co., 169 Ill. 312, 322 and 323: “It is a general rule that a corporation cannot avail itself of the defense of ultra vires where a contract, not immoral in itself nor forbidden by any statute, has been in good faith fully performed by the other party, and the corporation has had the full benefit of its performance (citing authorities). And this rule applies with equal force to the other party setting up that the contract was ultra vires the corporation.”

In Kadish v. Garden City Equitable Loan & Bldg. Ass’n, 151 Ill. 531, where the situation was somewhat analogous to the instant case, the court held that while an ultra vires contract remains executory, courts will interfere to prevent its enforcement at the behest of an interested party, but when the contract has been performed and carried into effect, and the corporation has received the benefit of it, it is then in no position to plead that it exceeded its power, in order to be relieved of its liability; and, conversely, if the other party has had the benefit of a contract which the corporation on its part has fully performed, he will not be permitted to urge that the contract was beyond the legal powers of the corporation. It is further held in the same case that, in general, courts will not permit the plea of ultra vires to prevail, either in behalf of or against a corporation, when its effect is not to promote justice, but rather will result in a legal wrong. And to the same effect is Harmony Way Bridge Co. v. Leathers, 353 Ill. 378, 394.

The contract in question is not, in its nature, immoral, does not contravene any rule of public policy, and is not contrary to any statute. The parties entered into its performance in good faith, voluntarily and advisedly. The obligors on the note had the full benefit of the loan, and the transaction did not injure or mislead either of the Renfros to their prejudice. To permit the defense of ultra vires to be interposed would in no sense advance justice; it would, on the other hand, accomplish, under legal form, a wrong, and where such is true, within' the rule as stated in the decisions cited, the defense is not available.

We think that upon this record appellant is entitled to the allowance of its claim.

The judgment is reversed and the cause remanded, with directions to allow the claim of appellant.

Reversed and remanded with directions.


text:
    Ines Scruggs, Appellant, v. Baltimore and Ohio Railroad Company, Appellee.

      Opinion filed November 9, 1936.
    Beasley & Zulley, of East St. Louis, for appellant.
    Kramer, Campbell, Costello & Wieohbrt and John C. Roberts, all of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of St. Clair county in favor of defendant, rendered upon a verdict directed in its favor upon the trial of the cause.

It appears from the evidence that on May 27, 1934, appellant, who was the plaintiff below, with three companions started from East St. Louis about midnig-ht for O’Fallon, the home of plaintiff. They had attended a show in Belleville, after which they drove to a tavern in East St. Louis, and then proceeded toward O’Fallon over the concrete highway known as U. S. Route No. 50. In the front seat of the car plaintiff was riding with the driver, Edgar H. Brockhahn, her former husband; in the rear were Lillian Owens, who at the time of the accident was a married woman named Mrs. Layman, and William Hollman. Just outside the westerly limits of O’Fallon the highway is intersected by a line of railway owned by the Illinois Terminal Company, and used occasionally by the defendant.

On the night in question, defendant, while switching over this line of railroad, stopped its train, leaving some box cars standing upon the crossing, without light, watchman or other signal to warn of their presence. About the only disputed point in the evidence is whether these cars occupied and obstructed the crossing for more than 10 minutes, in violation of Ill. State Bar Stats. 1935, ch. 114, If 93 (sec. 70, ch. 114, SmithHurd’s B. S. 1935), which provides that in no case shall such obstruction continue for more than 10 minutes. The evidence upon this proposition is conflicting. Plaintiff contends that such obstruction of the crossing for a period of time exceeding 10 minutes was negligence on the part of the defendant. Whether such is true, as a matter of law, it is not questioned by the defendant, hence it is not necessary for us to pass upon the point.

Plaintiff and her companions were approaching the crossing from the west, riding, as they testify, with the dimmer lights on. They had been going about 40 miles per hour, and about a quarter of a mile from the crossing slowed down to 20 miles an hour. It was a clear nig’ht at the time, and the moon was shining brightly. The photographs in evidence disclose that there were no buildings, trees, hedges or other objects near to the crossing which would have the effect of darkening or casting a shadow upon it or otherwise affecting the visibility at such point, and that the view of the crossing from the west was clear and unobstructed.

Plaintiff states that she had lived in O’Fallon for four years, was familiar with the crossing, and had passed over it many times prior to the accident. She further said that from her position in the front seat of the car she was looking straight ahead, that her eyesight was good, and that she could see 40 or 50 feet ahead; that she knew the lights were on dim, but did not speak to the driver of such fact, and that she did not see the box cars until within 20 or 25 feet of them.

It appears from the testimony that the occupants of the car were conversing as they rode along in approaching the crossing, and that there were the usual cross-arm warning signs at the crossing. The car crashed against the side of one box car, injuring plaintiff, and to recover damages therefor she instituted this suit.

As before observed, the court, at the close of all the evidence, directed a verdict for defendant. The chief controversy seems to be whether under the circumstances the conduct of plaintiff, just prior to and at the time of the accident, was such as to charge her, as a matter of law, with negligence contributing proximatelv to her injury, or whether the circumstances were such that the question should have been submitted to the jury as one of fact.

At the time in question the statute, sec. 16, ch. 95%, Smith-Hurd’s R. S., required that motor vehicles upon the public highways, during the period from one hour after sunset to sunrise, should carry two lighted lamps showing white lights, or lights of a yellow or amber tint, visible at least 200 feet in the direction the motor vehicle was proceeding. It has been held that the violation of this section is prima facie evidence of negligence on the part of the driver. Johnson v. Kushler, 269 Ill. App. 553; Johnson v. Gustafson, 233 Ill. App. 216.

The negligence of the driver could not be imputed to the plaintiff. Flynn v. Chicago City Ry. Co., 250 Ill. 460; Nonn v. Chicago City Ry. Co., 232 Ill. 378. The latter, as a passenger in the automobile, rested under the duty of exercising ordinary care for her own safety, and where she had equal opportunity with the driver to observe or become aware of danger or peril, she was legally obligated to warn the driver of such fact, if reasonably she could. She could not blindly trust the driver, and was required to use such care as was proportioned to the danger of which she was advised by the attendant circumstances. Dee v. City of Peru. 343 Ill. 36; Flynn v. Chicago City Ry. Co., supra.

The law g-overning in such cases is aptly stated in Har die v. Barrett, 257 Pa. 42, 101 Atl. 75: “The rule is well established that when possible dangers arising out of the negligent operation of a hired vehicle, or a conveyance in which one is riding as an invited guest, are manifest to a passenger, who has any adequate opportunity to control the situation, and he sits by without protest and permits himself to be driven on to his injury, this is negligence which will bar a recovery. In other words, the negligence of the driver is not imputed to the passenger, but the latter is fixed with his own negligence when he joins the former in testing manifest dangers.”

Here we have as a situation, plaintiff riding in the front seat of the car, the night clear, moon shining brightly, the area about the crossing free of any objects which would tend to darken or shade; the lights on the car were dimmed, as she stated she knew. This was a violation of the statute and prima facie negligence of which she was by law charged with knowledge, yet she made no objection of such fact to the driver. She was by her own testimony familiar with the crossing, had passed over it many times and knew of its location. True, she states she never saw a train upon this line of railway; however, she was bound to apprehend that one might be passing over the crossing, or,. as tersely put by the Supreme Court of Iowa in High v. Waterloo, C. F. & N. Ry. Co., 195 Iowa 304, 190 N. W. 331: “A person approaching a railway crossing is bound to know that he is approaching a dangerous place. As one has laconically said, ‘It is always train time at any railroad crossing. ’ ’ ’

Plaintiff was, by her own testimony, looking ahead, yet she said she failed to see an object upon the track the size of a box car, which is about 40 feet long and 10 or 12 feet high, until within about 20 feet of it. That she would have seen the car had she been looking ahead, in ample time to warn the driver of such fact, seems obvious. In Dee v. City of Peru, supra, the court said: “The law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger, when the view was unobstructed, and where, if he had properly exercised his sight, he would have seen it. ’ ’

It is manifest that if the car had been burning the proper lights, as plaintiff knew it was not, and yet made no objection thereto, and had she been properly observant, she would have seen the box car in time to warn the driver and thus avoid the accident. It seems that plaintiff, as stated in Hardie v. Barrett, supra, joined with the driver “in testing manifest dangers.”

The question of whether a plaintiff has been guilty of negligence which proximately contributed to her injury, is ordinarily one of fact upon which she is entitled to have the finding of a jury; but where circumstances are such that all reasonable minds, judging honestly, must agree that she was thus negligent, and that same was a proximate contributing cause of the accident, the question then becomes one of law which the trial court is obligated to assume the responsibility of deciding. 64 Corpus Juris, id. 462, sec. 440.

Upon this record we are of opinion that all reasonable minds, in honest judgment, will agree that plaintiff was guilty, at the time of and just prior to the accident, of negligence which contributed proximately to her injury. It is our conclusion that the trial judge rightly directed a verdict for defendant.

Judgment affirmed.


text:
    Anna Suttles, Appellant, v. Jacob Zimmerman et al., Appellees.
    Opinion filed November 9, 1936.
    Rehearing denied December 14, 1936.
    D. Gr. Thompson, of Mt. Vernon, for appellant.
    Albert E. Islet, of Newton, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Effingham county dismissing for want of equity a complaint filed by appellant, against appellees. There was a submission of certain issues of fact to a jury, who found thereon for appellees. The court allowed the advisory finding of the jury and entered a decree in conformity therewith, which this appeal seeks to reverse.

Appellees challenge the jurisdiction of this court to entertain the appeal, alleging, among other reasons, that the purported transcript of proceedings was not authenticated by the chancellor as required by Ill. State Bar Stats. 1935, ch. 110, U 202 (subsec. 2 of sec. 198, ch. 110, Smith-Hurd’s Statutes of 1935) the terms of which are in part: “The trial court record shall include every writ, pleading, motion, order, affidavit and other document filed or entered in the cause, and all matters before the trial court which shall be certified as a part of such record by the judge thereof. All matters in the trial court record actually before the court on appeal may be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable. ’ ’

In First Nat. Bank v. 10 W. Elm St. Bldg. Corp., 277 Ill. App. 337, the court, in construing said section, held that all matters before the trial court shall be certified by the judge.

Upon the last page of the purported transcript of proceedings appear two forms of certificate — one to the effect that “the foregoing transcript is a true, full and complete record of the proceedings, together with all rulings of the trial court and evidence taken at the trial”; which was not signed by the trial judge. The other certificate reads as follows: “Presented for signature this 13th day of March, A. D. 1934”; and signed by the judge.

The transcript of proceedings required by said section 198 is in lieu of, and a substitution for the bill of exceptions provided for in the former Practice Act and which was only complete and effective when it bore a certification of correctness signed by the presiding judge.

This court, in Tibbitts-Hewitt Grocery Co. v. Cohen, 256 Ill. App. 459, stated: “This court has no power to review anything contained in a purported bill of exceptions which has not been signed or certified to by the trial judge, and where such appears it is the practice of this court to dismiss the appeal.”

The practice in such cases was further declared by this court, in Songer v. Pfeiffer, 199 Ill. App. 190: “We think the better practice in cases of this kind is to call the attention of the court to the defective record by a proper motion, but as the signature of the trial judge is necessary, and without it this court has no power to review anything contained in the purported bill of exceptions, we are of the opinion that the appeal should be dismissed.”

We think the authorities cited establish the rule that the transcript of proceedings, now provided for by the Civil Practice Act, must be authenticated as to completeness and correctness, by the signature of the judge presiding at the trial, and that unless same is done it is the duty of the reviewing court to dismiss the appeal when its attention is drawn to such fact.

It remains to consider whether the certificate of the judge that the transcript had been presented for his signature, amounts to such an authentication as the statute requires.

A like situation was presented in Harvey v. State, 4 Ind. App. 422, 31 N. E. 835, where, under a statute similar to ours, the court certified that “the foregoing and within bill of exceptions in the case of The State of Indiana v. Peter C. Harvey was tendered to me for my signature on the 20th day of November, 1891.” The court, in commenting thereon, said: ‘ ‘ This is the only certificate or statement in and about the bill of exceptions purporting to come from the judge. It appears nowhere that he had examined and approved the bill, nor does his signature appear thereto at any other place. This, however, is essential under sec. 629, R. S. 1881. It is not enough that the document should be presented to the judge, and the fact of such presentation certified to by him, but it must be examined, and if found correct, that fact must also be attested by the official signature. This is the judicial determination of the correctness of the bill, and without it this court cannot take cognizance of it as such.”

Here, the only certificate of the trial judge was that the transcript was “presented for signature.” So far as appears he did not examine its contents nor know whether they were correct or otherwise, and certainly did not certify to such fact, as the statute requires. Within the rule and reason of the decision of the Indiana court, there was no authentication of the purported transcript of proceedings.

We observe that the concluding sentence of said section 198 provides that if the transcript be “not properly authenticated the court may order such further authentication as it may deem advisable.” This manifestly contemplates occasions where there is an attempted authentication which is for some reason defective or faulty, and not to situations where there is no attempt to certify to the correctness of the transcript. This would appear from the statutory wording, that the court may order “such further authentication as it may deem advisable.” Before there could be further authentication there must necessarily have been some authentication, which the further authentication was to correct or supplement. The word “further” in such situations signifies “additional.” London & S. F. Bank v. Parrott, 125 Cal. 472, 58 Pac. 164; Thompson v. Southern R. R. Co., 116 Fed. 890; Hitchings v. Van Brunt, 38 N. Y. 335. The expression “further authentication,” implies an actual previous authentication. Smith v. Shippers’ Oil Co., 120 La. 640, 45 So. 533.

There being" no certificate by the trial judge as to the correctness and completeness of the purported transcript of proceedings, it follows that there is no transcript of proceedings as required by statute, hence nothing for this court to review. The appeal is dismissed.

Appeal dismissed.


author: Me. Justice Murphy

text:
    Frank Reinhardt et al., Appellants, v. Security Insurance Company of New Haven, Connecticut, Appellee.
    Opinion filed November 9, 1936.

      James 0. Miller, of Belleville, for appellants.
    Walter E. Ackermann, of Belleville, and Samuel Levin, of Chicago, for appellee.
   Me. Justice Murphy

delivered the opinion of the court.

Frank Reinhardt, trustee, instituted this suit against Security Insurance Company of New Haven, Connecticut, Sebastian Huskamp and Rose Huskamp to recover a loss under a fire insurance policy issued by the insurance company to the Huskamps. The real estate upon which the insured property was located was incumbered by mortgage to F. E. Schniedewind trustee, the said mortgage and the notes it secured were assigned to plaintiff prior to the fire loss.

The defendant insurance company filed a motion to dismiss on the grounds the complaint did not show privity of contract between the plaintiff and the defendant company. The court sustained the motion and plaintiff obtained leave of court to file an amended complaint. An amended complaint was filed and in it plaintiff joined the Huskamps as plaintiffs. The insurance company then filed a motion to strike and for judgment in bar of action and for costs against plaintiff. As grounds for the motion it urged that plaintiff did not obtain leave of court to make the Huskamps party plaintiff.

November 18, 1935, the court entered an order striking the amended complaint “for the reason that leave was neither asked or given to make new parties.”

Plaintiff elected to stand by the amended complaint and his suit was dismissed and a judgment entered against him for costs.

The judgment order entered by the court implies that by the amendment, parties who had not been in the proceedings prior thereto were brought into the case, but such was not the fact. The Huskamps were parties defendant, had been personally served but had not appeared or filed an answer. The Huskamps have not questioned plaintiff’s action in making them parties plaintiff and defendant has not pointed out in what particular the change of parties would jeopardize its interests.

Plaintiff did not have the right to file an amended pleading without first obtaining leave of court and failure to obtain such permission is grounds for striking such amendment. Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132; Walter Cabinet Co. v. Russell. 250 Ill. 416. Plaintiff did obtain leave to file an amended complaint. The court order granting leave did not specify in what particular the complaint was to be amended and therefore plaintiff had the right to amend in such particular as was necessary to state his cause of action. Whether the amended complaint stated a cause of action against the defendant and whether the naming of the Huskamps as parties plaintiff aided in the statement of such a cause of action is not before us for the reason defendant’s motion did not raise any question testing the sufficiency of the allegations in the complaint. The basis of the motion is, that no order ivas obtained by the plaintiff for leave to make additional parties plaintiff and prayed that plaintiff take nothing by his suit and a judgment for costs be entered against him. The judgment appealed from followed the motion.

Section 46 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, U 174 (Smith-Hurd, chapter 110, section 170) provides that any time before final judgment amendments may be allowed introducing any party who ought to have been joined as plaintiffs or defendants so as to enable the plaintiff to sustain the claim for which the action was brought.

Section 26 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ft 154 (Smith-Hnrd, chapter 110, section 150) provides that no action shall be defeated by non-joinder or mis-joinder of parties. New parties may be added and parties misjoined may be dropped by order of the court at any stage of the cause before or after judgment as the ends of justice may require.

The proper practice would have been for plaintiff to have given notice of his intention to apply to the court for leave to transpose the Huskamps from parties defendant to plaintiff and when leave was granted to file his amended complaint making them parties plaintiff. If the propriety of making them had been questioned the court would, if there was a misjoinder, have acted under section 26 of the Civil Practice Act and ordered them dropped as parties but by the express provision of said section such action by the court would not have defeated plaintiff’s cause of action.

Since defendant’s motion was limited to and only questioned plaintiffs ’ right to transpose the Huskamps from parties defendant to plaintiff, the court should have limited its order in the same way and struck their names as parties plaintiff from the amended complaint. It was error to dismiss the suit in bar of the action.

The judgment of the circuit court is reversed and the cause remanded with directions to strike the Huskamps ’ names as parties plaintiff in the amended complaint.

Reversed and remanded.


author: 'Mr. Justice Murphy

text:
    Chester W. Adams, Appellee, v. Walter G. Critchlow, Trading as Walter G. Critchlow Organization, Appellant.
    Opinion filed November 9, 1936.
    Rehearing denied December 14, 1936.
    Hadley, Weaver & Woodward, of Wheaton, and John H. Searing, of Carbondale, for appellant; Charles W. Hadley and John S. Woodward, of counsel.
    Loyd M. Bradley, of Carbondale, for appellee.
   'Mr. Justice Murphy

delivered the opinion of the court.

The defendant is engaged in the manufacture and sale of automobile accessories, including a gasoline saving device known as Vis Humidifiers. His principal place of business was at Wheaton. September 4. 1934, he entered into a written contract with the plaintiff, whereby plaintiff was to become district manager in the sale of the humidifiers in eight counties in this State with his office at Carbondale.

Plaintiff instituted this suit basing his right of recovery upon the provisions of the contract and by the various counts in the complaint he sought to recover three different claims, viz., $1,250 which he had deposited with the defendant at the time of the execution of the contract, secondly for service rendered and for expense money. On a trial before the court, without a jury, a judgment was entered in favor of the plaintiff for $1,250 and defendant appeals from that judgment. The judgment order does not recite which claim the court allowed but both parties in their brief and argument concede that the judgment was for the deposit fund and since plaintiff does not urge his other claims in this court it is unnecessary to consider them. The pertinent provisions of the contract pertaining to the deposit fund are as follows: “In consideration of the above appointment as exclusive Manager of Distribution for the said Humidifiers in the above described district, the Manager agrees to order and pay for 1250 Humidifiers to be ordered and delivered and- shipped as specified herein, either through his own efforts or those of his salesmen, dealers, distributors, agents, sub-service stations, or canvassers, etc., and as evidence of good faith and to guarantee the performance of the terms of this agreement hereby deposits $1.00 each on 1250 Humidifiers amounting to a total of $1,250.00, receipt of which is hereby acknowledged. It is agreed that in the event the Manager fails to order and pay for 1250 Humidifiers, as herein specified, either through his own efforts or those of his salesmen, dealers, distributors, agents, subservice stations, canvassers, etc., that no liability shall attach to the deposit credit of the Manager for such deficiency.

“The above mentioned deposit is to be refunded to the Manager at the rate of $1.00 to be credited on the price of each Humidifier delivered to the Manager until the total amount deposited has been returned to the Manager in full. There is no time limit as to when these Humidifiers shall be taken to secure such refund credit.

“This agreement is entered into for a period of three (3) years from date, subject to the conditions hereof.”

By paragraph 13 defendant reserved the right to give written notice and cancel the contract, if plaintiff was for any reason unable to meet the requirements but he agreed to refund to plaintiff any of the deposit fund remaining to the credit of the plaintiff.

The material part of paragraph 25 is as follows: “The deposit credit of the Manager shall not be used for any purpose other than as specified in paragraphs seven and eight hereof, except that should the Manager wrongfully retain certain collections and receipts, a part of which should have been transferred to the Manufacturer up to the net amount thereof in accordance with the herein stipulated prices and discount, then under such circumstances the Manager’s deposit may act as surety and the Manufacturer may deduct therefrom the net amount lawfully due him on such collections and receipts. ’ ’

By parag’raph 28 defendant agreed to pay four per cent interest, computed semiannually on any part of the deposit fund that had not been refunded, returned or withdrawn by virtue of orders placed and filled. Paragraph 29 provided that the contract was for three years subject to the condition that the plaintiff was through his agents, subagents and salesmen to sell humidifiers to the amount of $150 per week beginning October first and failure to comply with this requirement was to invalidate the exclusive rights and other privileges of the contract.

Paragraph 29% is as follows: “In the event the Manager for any reason shall not be able to meet the minimum requirements of any part of this agreement pertaining to quota or number of Humidifiers to be ordered and paid for, then in that event, under no circumstances shall any part of the deposit credit be.used for such deficiency. ’ ’

Paragraph 30 is as follows: “In the event that circumstances should arise that would make it expedient or necessary for the Manager to discontinue due to sickness, ill-health, accident, or for any reason whatsoever, upon notification in writing from the Manager, his heirs, executors, or assigns for the purpose of securing another man in his place to take over this agreement and continue with it on the same basis as set forth herein; and further, the Manufacturer, upon receipt of such notification from the Manager, will immediately readvertise to accomplish this same purpose as quickly as possible, in order that the Manufacturer business may be continued without interruption in the district specified herein; and the Manager agrees to co-operate with the Manufacturer with this same end in view by continuing his regular work as mentioned herein and filing a report every week until a transfer of this agreement is made. When said replacement and transfer is made during the life of this agreement the Manufacturers will refund to the Manager, his heirs, executors or assigns, any portion or part of the $1250.00 deposit referred to in clauses seven and eight hereof, that has not already been refunded, returned or withdrawn by virtue of orders placed. ’ ’

Soon after the execution of the contract plaintiff opened an office in Carbondale and by the middle of October plaintiff was writing defendant complaining that his orders were not being filled. October 16th plaintiff called at defendant’s place of business in Wheaton and certain articles were furnished plaintiff and apparently the previous complaints were satisfied. ■Soon thereafter an exchange of letters followed wherein the discussion centers around the plaintiff’s weekly allowance and the expense account. November 2, the plaintiff made a proposition of withdrawing his deposit fund and paying cash with each order, the defendant to meet the expense account and pay a bonus and if the defendant does not see fit to do this to consider the letter as his resignation. Defendant refused to accept plaintiff’s proposition and stated his intention of adhering to paragraph 30 of the contract and on November 7th suggested as an economical measure that the plaintiff move his office equipment to his residence and stated “With reference to the Vixs which you have sold you should render an accounting and remit cover. Any merchandise and materials that are'unpaid for should be returned for memorandum credit.”

Defendant furnished plaintiff a statement of account and on November 21 plaintiff returned certain merchandise and material and received credit for the same and a full settlement was made. Defendant testified on cross-examination that after this settlement was made plaintiff did not owe him anything.

Defendant contends that the deposit fund is not due until plaintiff finds some one who will buy plaintiff’s contract, pay defendant $1,250 as a deposit fund and that upon that being done he will repay the deposit fund to plaintiff. He relies upon paragraph 30 as giving him that right. We do not so regard it. All paragraphs of the contract must be construed together and each of them given effect if possible. We are of the opinion that the deposit fund should have been returned to plaintiff. It was not intended that the deposit fund should be retained until a new manager had been selected unless the business was continued as a going concern.

It ceased to be a going concern when plaintiff returned the merchandise and material for credit as above noted. By clause 30 plaintiff was given the right to discontinue and give defendant notice in writing of his intentions to do so then the defendant was to take certain steps in procuring a successor and plaintiff’s agreement was “to co-operate with the manufacturer with this same end in view by continuing his regular work as mentioned herein. ’ ’ His regular work was to sell humidifiers and this had been made impossible by the surrender of merchandise and material on November 21st and the settlement of the account.

Defendant contends that this case is controlled by Rufi v. Critchlow, where the Appellate Court of the Second District construed a contract with this defendant. The contract in the case at bar has several features that do not appear to have been in the contract in the Rufi case, particularly paragraph 29% in this contract and there was no supplemental agreement in this case as there was in the Rufi case.

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice Matchett

text:
    Emily Feitl, Appellee, v. Konrad Ricker et al., Appellants.
    Gen. No. 38,909.

      Opinion filed November 30, 1936.
    Arnd, Gatin & Hanley, for appellants; Frederick Arnd and James J. Hajek, of Chicago, of counsel.
    Kernes, Jaros & Tittle, of Chicago, for appellee; Julius H. Selinger, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by leave from a decree of sale and foreclosure entered in the circuit court of Cook county June 4, 1935. The bill was filed April 18, 1933, and alleged the execution by Konrad Ricker and Barbora Ricker, his wife, on July 30, 1927, of the principal promissory note for $3,000, to the order of themselves, due in three years from date with interest at six per cent, payable annually, and evidenced, by coupons of the same date; the execution and delivery on the same date by the same parties of a trust deed conveying certain premises in Chicago, Cook county, Illinois (as security for the indebtedness represented by the note and coupons) to A. C. Ricker as trustee; the maturity of the note on July 30, 1930, and that the makers thereof, by an extension agreement with complainant, the owner, extended the time of payment for a further period of three years, namely, until July 30, 1933, executing interest coupons for the extended period.

The bill further alleged default in payment; that A. C. Ricker on August 4, 1930, executed a release deed without the knowledge of complainant, the owner of the indebtedness, and that on July 26, 1930, Herbert F. Brandner and Marie Brandner conveyed the premises to Konrad Bicker as trustee to secure their note for $3,000 due five years from date; that the deed was recorded August 4, 1930; that this deed was a valid lien, subordinate, however, to the lien of the trust deed to A. C. Bicker. The bill made defendants thereto Konrad and B arbor a Bicker, A. C. Bicker, individually and as trustee, Herbert Gr. Brandner and Marie Brandner, his wife, Konrad Bicker as trustee, and unknown owners, who were thereafter disclosed to be Fred Pernsot and Marie Pemsot, his wife. June 4, 1935, by way of amendment, the complainant averred: “That the purported release by said Trustee, A. C. Bicker, appearing of record, dated August 4, 1930, and recorded September 10, 1930, as Document No. 10745480, is not the deed of said A. C. Bicker, trustee, and was never executed or acknowledged by said Trustee; that the signature appearing on said release is not the genuine signature of A. C. Bicker; that said release deed was not signed at her request or direction, and that said purported release deed was issued in violation of the rights of the complainant and is a forgery and should be expunged from the record; that at the time of the purported release, all of the notes including* said trust deed were in the possession of your oratrix and were at the time unpaid and still remain unpaid and are still in the possession of your oratrix who is the owner and legal holder thereof and that said purported release executed by said A. O. Bicker, as Trustee, is void and fraudulent as to the rights of your oratrix and is of no effect.”

A. O. Bicker, individually and as trustee, answered denying knowledge, and demanding* strict proof of the facts averred. The Brandners answered that they were the owners of the premises, and that Fred Pernsot and Marie Pernsot were owners of the indebtedness secured by the trust deed to Konrad Ricker. They also averred that the release by A. C. Ricker, as trustee, on August 4, 1930, was valid and not fraudulent, that the lien of the trust deed to Konrad Ricker was not subordinate, and that the complainant was not entitled to the relief prayed. The cause was put at issue and referred to a master, who took the evidence and reported that the equities were with the complainant. The cause was heard by the chancellor upon exceptions to the report of the master, which were overruled, and a decree entered finding that the supposed release by A. C. Ricker was a forgery, and that the same should he removed from the records and foreclosure of complainant’s trust deed granted. The Rickers, Brandners and Pernsots have perfected this appeal.

The evidence shows that on July 26,1930, the Brandners borrowed $3,000 from Fred Pernsot and executed a trust deed conveying the premises to Konrad Ricker, trustee, to secure the same; that on the same date they g;ave $3,000 to Konrad Ricker, Jr., at the office of Konrad Ricker, in payment of the note held by complainant, and defendants contend that the complainant, by reason of the facts hereinafter' recited, is estopped to deny the agency of A. C. Ricker in that respect.

Konrad Ricker was in the real estate business in Chicago from and after the year 1893. January 30, 1927, he was owner of the premises in question, and on that date he, with his wife, executed their notes and trust deed as above described. The principal note recited: “Both principal and interest are payable at the office of Konrad Ricker, 2458 S. St. Louis Avenue in Chicago, Illinois, or such other place as the legal holder hereof may from time to time in writing appoint. ’ ’

In September, 1927, Konrad Ricker sold these notes and trust deed to plaintiff and delivered them to her together with an insurance policy, all of which have since been retained in her possession. In 1928 Konrad Bicker and wife by deed conveyed these premises to defendants Herbert F. Brandner and wife. Interest notes Nos. 1 and 2 were at the time delivered by Bicker to the purchaser. When interest note number 3 was about to mature Konrad Bicker notified Brandner, and in response to the notice Brandner went to the office of Bicker and paid the note. Brandner did not get the note but Bicker told him it would be mailed to him, and about a week later Brandner received the note by mail. Subsequent interest notes were paid by Brandner to Konrad Bicker in the same way. Plaintiff, on each occasion, brought the note to Konrad Bicker’s office, received payment and delivered the note to Bicker, who forwarded it to Brandner. The principal note became due July 30,1930. A week before it was due Brandner told Konrad Bicker he was going to pay it and asked him to have everything ready. Four days before the maturity of the principal note, namely, July 26, 1930, Brandner, Mrs. Brandner and the father-in-law of Mr. Brandner, Fred Pernsot, went to the office of Konrad Bicker and paid the amount of the principal note to Konrad Bicker, Jr., taking a receipt therefor. At the same time the abstract of the premises was delivered to Brandner, and Bicker, Jr., told the parties that the note would be mailed to them later. The payment was made by the check of defendant Fred Pernsot, and Bicker, Jr., was told to make out a mortgage on the land in favor of Pernsot. Bicker, Jr., made out the papers, a note for $3,000 to the order of Pernsot dated July 26, 1930, and a trust deed to Konrad Bicker, trustee, conveying the premises as security for the payment of the note. This trust deed was recorded August 4, 1930. On the same date Konrad Bicker delivered to Brandner the purported release of the trust deed held by plaintiff. The signature of the trustee, A. C. Bicker, is not genuine, and Rieker, Jr., before whom the supposed release was executed, says that he did not take the acknowledgment, and that his signature thereto is not genuine, and that some other person affixed his notarial seal, which appears thereon. Brandner did not receive the note for $3,000, which had been paid, and upon inquiry was informed by Konrad Ricker that he was keeping the note because it was signed by himself and wife, and he was entitled to it. Some time in 1928 the plaintiff first received information that Brandner had bought the premises. July 30, 1930, plaintiff took the last interest coupon to Ricker’s office where it was paid, and Ricker told her that Brandner wanted to have the mortgage renewed. She replied that this would be all right. As a matter of fact, Brander never requested an extension. About a week later Konrad Ricker handed to plaintiff an agreement in writing which purports to extend the time of maturity of the principal note held by plaintiff. At the same time he delivered to her interest coupons representing the supposed interest which would become due and payable during the extended period. These interest notes were signed by Konrad Ricker and Barbara Ricker. Brandner’s name is not on them. The interest notes as they became due were paid to plaintiff at Ricker’s office upon presentation of them by plaintiff at the maturity thereof. Plaintiff did not learn of the payment of her note to Ricker, Jr., by Brandner until coupon number 11 became due in 1933.

Complainant lived in the same neighborhood as Konrad Ricker and had purchased other notes and trust deeds from him prior to this time. In their reply brief defendants disclaim any contention that Konrad Ricker had any express or implied, apparent or real authority to receive payment of complainant’s note or to secure a release of the trust deed by which it was secured. That such a contention could not prevail is apparent from the many cases in which, under similar circumstances, the courts have decided to the contrary, as will appear by examination of Kennell v. Herbert, 342 Ill. 464; Culhane v. Layman, 273 Ill. App. 557; Kozien v. Vikidal, 276 Ill. App. 9; and McCoy v. Montgomery Ward & Co., 286 Ill. App. 405.

The theory of defendants is stated in their reply brief:

“In order that there may be no further misapprehension of defendants’ contention, we repeat: the law to be applied to the facts herein is not that of agency but is the law of estoppel applicable to authority to collect. The question is not whose agent Bicker was when he received said payment. The sole question is, whether or not the plaintiff is estopped to deny the authority of Bicker to receive payment of said note. If she is not so estopped, the decree below should be affirmed. If, on the contrary, she is so estopped, the decree should be reversed. Plaintiff’s argument and authorities afford no aid to the solution of that question. ’ ’

In Mechem on Agency, vol. I, sections 245, 246, pages 177, 178, the author says:

“Estoppel is always a matter personal to the individual asserting it and he must therefore show that he was misled by the appearances relied upon. It is not enough that he might have been, or that some one else was, so misled. It must also appear that he had reasonable cause to believe that the authority existed; mere belief without cause, or belief in the face of facts that should have put him on his guard is not enough.

“Gathering- together all of these elements, it may be stated as a general rule that whenever a person has held out another as his agent authorized to act for him in a given capacity; or has knowingly and without dissent permitted such other to act as his agent in that capacity; or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity; — whether it be in a single transaction or in a series of transactions — his authority to such other to so act for him in that capacity will be conclusively presumed to have been given, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence; and he will not be permitted to deny that such other was his agent authorized to do the act he assumed to do, provided that such act was within the real or apparent scope of the presumed authority.”

This doctrine of estoppel to deny authorization is dealt with in the Restatement, Agency, section 31, where it is stated in substance that a person who manifests to a.third person that he has an authorized agent by an instrument under seal or by other formality is subject to liability to such third person as if the authorization had been by such means “if the third person changes his position in reasonable reliance upon the manifestation.” Section 161 of chapter 6 of the same authority states:

“A general agent for a disclosed or partially disclosed principal subjects his principal to liability for acts done on his account which usually accompany or are incidental to transactions which he is authorized to conduct if, although they are forbidden by the principal, the other party reasonably believes that the agent is authorized to do them and has no notice that the agent is not so authorized. ’ ’

The distinction between apparent authority of an agent and an estoppel to deny authority on the part of an agent is clear, although the Illinois Annotation to these sections of the Restatement would indicate the distinction is not always recognized. The defendant relies upon Linowiecki v. Wisniewski, 249 Ill. App. 474, where the syllabus of the case states in substance that where defendants had executed a series of notes, secured by a trust deed, which were payable at the office of the trustee, and ten of the notes had been paid at his office, an assignee of the remaining notes was estopped to deny the agency of the trustee to receive payment of the last note of the series.

It was contended that Weber & Weber, of which firm the trustee was a member, was not authorized to receive payment of the note, and that it was the duty of defendants to see that the money was paid to the actual holder. It was also argued that the defendants, having paid the note without its production at the time, paid it at their peril. The original loan, for which a trust deed was given as security, was made at the office of Weber & Weber, a firm engaged in the real estate and loan business, and the notes were made payable at their office. The court said that these facts standing alone might not be sufficient to authorize Weber & Weber to make collection on these notes, but that this was a fact to be considered with all the other facts and circumstances of the case, that “An agent authorized to make a transaction is not necessarily authorized to collect by reason thereof and a person paying a note, except to the owner, ordinarily does so at his peril. The holder and owner of a note, however, may by his conduct impliedly create an agency and it is not necessary that the agency be constituted by a direct authorization. James v. Conklin & Hill, 158 Ill. App. 640, where the court in its opinion says: ‘Payments made to an agent are good and obligatory upon the principal, in all cases where the agent is authorized to receive payment, either by express authority, or by that resulting from the usage of trade, or from the particular dealings between the parties. Noble v. Nugent, 89 Ill. 522, citing Story on Agency. The principal is equally bound by the authority which he actually gives, and by that which by his own acts he appears to give. The principal is responsible for the appearance of authority. Smith v. Peoria County, 59 Ill. 412; Phoenix Ins. Co. v. Stocks, 149 Ill. 319.’ ”

The opinion goes on to state that the nine previous notes had been paid at the office of Weber & Weber; that the plaintiff was aware of that fact, and that if he did not desire collection to be made by them, he had ample opportunity to have notified the makers of the notes that they should be paid to him directly and not through an intermediate person or agency; that the plaintiff, by his course of conduct, had agreed to the payment of the notes without their production at the office of Weber & Weber, “as it appears from his own testimony that he would not deliver the notes until he had first received the money and, for that reason apparently would not deposit them with that firm.”

That case is distinguishable from this in several respects. In the first place that was an appeal by the plaintiff from a judgment for defendant entered upon the verdict of a jury in favor of defendant in an action at law on the note. This is a proceeding by bill in equity, where the finding of the master on the facts in favor of plaintiff has been approved by the chancellor. In the second place, in that case the note which was paid to the supposed agent was paid on or after its maturity. In this case, payment of the note was made four days before maturity. Third, in that case the notes which had been paid prior to the final payment were all of the same kind as the one last paid, in that the same were principal notes. In this case, only interest coupons were paid at the office of Konrad Ricker prior to the payment of the principal note. Fourth, the cases are also distinguishable in that in the Linowiecki case the supposed agent was not the original debtor upon whom rested the primary obligation to pay the note. In this case Ricker, the supposed agent, was the maker of the principal note and coupons, primarily obligated to pay the same, and the defendants all had actual notice of that fact. It was not unnatural that Brandner, who had made the agreement with Bicker that he, Brandner, should pay Bicker’s note, should hand the money over to Bicker, trusting him to pay it to the owner of the note. The evidence shows that Brandner, not complainant, chose Bicker as the agent through whom Bicker’s notes should be paid. Complainant at no time made any request that payment should be made to her through Bicker. The arrangement as to payment was made throug’h Bicker, who originally was the owner of the premises, and Brandner, to whom Bicker conveyed the premises. Complainant was not a party to that agreement, and did not, so far as the evidence discloses, have knowledge of it at the time it was made. Brandner knew and from the very nature of the transaction must have understood, that the interests of Konrad Bicker were adverse to those of complainant. This is evidenced by the fact that without request of complainant and without her knowledge Brandner and his father-in-law chose Bicker, Jr., to draw up the papers for the new mortgage and consented that Konrad Bicker should take the conveyance as trustee in this transaction, of which also the undisputed evidence shows complainant was wholly ignorant. In other words, Brandner, in tailing title to the premises and conveying it in trust to secure his own indebtedness to his father-in-law, chose Konrad Bicker as his own agent or instrumentality. He did not at any time rely upon complainant. She at no time, either by word of mouth or by conduct, made any representation to him with reference to the transaction, and she is therefore not estopped to deny that Konrad Bicker was her agent in releasing the trust deed. If she were estopped under the circumstances recited, Brandner would in turn, under the circumstances, be estopped to assert an estoppel as against her. Brandner accepted the excuse given by Konrad Bicker for not producing complainant’s note, namely, that he, Ricker, was the maker of the note and entitled to it. In prior dealings between the parties the coupons, also made by Ricker, were not retained by Ricker but were delivered to Brandner, and Brandner should, therefore, have known that this excuse was not plausible. Nevertheless, he accepted it.

.In the last analysis, a case seems to be presented where one of two innocent persons must suffer. Brandner, through his payment before maturity to an agent who he knew had interests adverse to the complainant holder of the note, and by payment negligently before the note was due and without causing it to be produced, made the loss possible. Equitably, therefore, the loss should be borne by him.

The decree is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.