text:
    Peter S. Sarelas, Appellant, v. D. L. Tarjan, Appellee.
    Gen. No. 34,896.
    Opinion filed June 22, 1931.
    B. M. Shaffner, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover $1,200 which he claimed to have loaned the defendant. The defendant denied that he had borrowed any money from plaintiff. The case was tried before the court without a jury and there was a finding and judgment in defendant’s favor. Judgment was entered on the finding and plaintiff appeals.

Plaintiff’s theory of the case was — and he offered testimony to sustain his theory — that he was engaged in selling stocks and securities on LaSalle street and that the defendant was one of his customers; that on September 9, 1929, plaintiff received two checks, one for $300 from Phillip Johnson, and one for $600 from J. H. Barrett, in payment of moneys he had earned in the sale of securities; that on that day the defendant being short of cash, plaintiff loaned him $450, one-half the amount he had received on the two checks; that on September 14, 1929, plaintiff received another check for $1,500 from one of his customers in payment of like services, and plaintiff loaned defendant one-half of this amount, $750, making a total of $1,200.

The defendant denied that he had borrowed any money from plaintiff but admitted that he had received the two amounts from plaintiff in payment of one-half of the commissions earned in the sale of securities; that the three checks were given to the defendant by defendant’s customers in payment of services he had rendered them in the sale of securities; that the sales were made by defendant through plaintiff under an arrangement between the parties whereby the commissions were to be divided equally between them.

It will thus be seen that the evidence was sharply conflicting on the vital question in the case. Two witnesses called by the defendant testified that two of the checks mentioned were delivered by the makers of them to the defendant. Two of the checks are payable to plaintiff; none of them is payable to the defendant. The three checks were all indorsed by plaintiff and the defendant’s name is not on them.

Upon a careful consideration of all the evidence in the record we are unable to say on which side the truth lies. But the witnesses were heard and observed by the trial judge. He found in favor of the defendant, and unless we are able to say upon a reading of the printed page that the finding is against the manifest weight of the evidence, we are not warranted, under the law, in disturbing the finding of the trial court. We are unable to say that the finding of the trial judge is against the manifest weight of the evidence, and therefore the judgment cannot be disturbed.

Plaintiff contends that the court erred in refusing him a nonsuit as requested by his counsel, arid in support of this counsel says, “Where the trial is by the court, the plaintiff may dismiss or may take a non-suit, after the court has announced a decision, no note of the decision having been made. Shabad v. Hanchett, 40 Ill. App. 545.” The opinion in that case was filed May 5, 1891. But the statute which provides for the taking of a nonsuit, then in force, is not the same as the present statute which was passed in 1907. Section 70, Cahill’s St. ch. 110, ¶ 70, provides: “Every person desirous of suffering a nonsuit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.” The provision, “or if the case is tried before the court without a jury, before the case is submitted for final decision,” was added in 1907. In the instant case, at the close of the defendant’s evidence, the court said, “I will make a finding for the defendant.” Then follows a colloquy between court and counsel when counsel for plaintiff then moved for a non-suit. The motion was overruled, and we are unable to say that the ruling of the court was erroneous.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Matchett and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    M. K. Nagle, Appellee, v. J. L. Hanson Company, Appellant.
    Gen. No. 34,908.
    Opinion filed June 22, 1931.
    Otto Schusterman, for appellant.
    Harold L. Feigenholtz, for appellee; Sidney Rubin, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff, the indorsee of a promissory note, brought suit against the defendant maker, to recover the face value of the note, $1,000, with interest thereon. The defendant filed a plea of the general issue and a number of special pleas, alleging that plaintiff was not an innocent purchaser for value, that plaintiff was not a holder in due course, and further, that the note was without consideration. The defendant denied that it had executed the note and averred that at and before the time of the execution of the note, and ever since, the payee of the note was indebted to the defendant in the sum of $1,635.02. There was a jury trial and at the close of all the evidence a verdict was directed in plaintiff’s favor for $1,197.50. Judgment was entered on the verdict, and the defendant appeals.

The record discloses that on August 15, 1927, the defendant, by its president, executed its note for $1,000 payable “Ten days sight after date” to the order of L. A. Schwebs with interest at the rate of six per cent per annum. At that time the payee was in the employ of the defendant.

Plaintiff testified that the payee of the note, Miss Schwebs, was her cousin and that “about the latter part of 1927,1 believe in November,” the payee of the note gave the note to plaintiff in payment of “a little over $1,000” which plaintiff had theretofore loaned her. The evidence further shows that on January 8, 1928, plaintiff, through her bank, presented the note to the defendant and demanded that it be paid ten days thereafter or January 18. Payment being refused the suit was brought.

Defendant offered evidence tending to show that the president of the defendant company, who signed the note on behalf of the defendant, was without authority to do so, and that at the time the note was made the payee of the note was indebted to the defendant in the sum of more than $1,600. Further evidence was offered tending to show that the plaintiff was not a holder in due course, but upon objection the evidence was excluded.

The defendant contends, that the judgment is wrong and should be reversed because the execution of the note by the defendant was denied by verified plea, which east the burden on plaintiff to prove the execution. The defendant produced a witness who testified that the note was signed by the president of the defendant company. We think this was prima facie proof of the execution of the note. It is a general rule of law that the president of a corporation, in the absence of proof to the contrary, is presumed to have authority to execute contracts on behalf of the corporation. Quigley v. Macqueen, 321 Ill. 124; Anderson Transfer Co. v. Fuller, 174 Ill. 221.

A further point is made that the proof failed to show that plaintiff was a holder in due course Within the meaning of section 52, Cahill’s St. ch. 98, ¶ 72; and the argument is that the evidence shows plaintiff acquired the note — which was dated August 15, 1927, and which was due ten days thereafter — in November, 1927, when the note was long past due. Obviously, if plaintiff acquired the note after it was due, she would not be a holder in due course, but the note was not due ten days after its date but was due and payable on ten days sight, after the date of the note. The note reads, “Ten days sight after date we promise to pay.” While this is worded rather awkwardly, we think it means that the note would be due and payable ten days after it was presented to the defendant. The evidence shows that it was presented on January 8, 1928, so that it would become due and payable, if the presentation were in due time, on January 18. Section 4, Cahill’s St. ch. 98, ¶ 24, But we are of the opinion that whether the note was presented to the defendant within a reasonable time was a question of fact for the jury. At least all the evidence should have been admitted to show all of the circumstances under which the note was made and delivered to the payee and any further circumstances that might throw light on the transaction between the payee and the plaintiff. Sections 53, 58, 59 and 192, Cahill’s St. ch. 98, ¶¶ 73, 78, 79 and 215. These sections provide: (53) “Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.” (58) “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to'the same defenses as if it were non-negotiable.” (59) “when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. ” (192) “In determining what is a ‘reasonable time’ . . . regard is to be had to the nature of the' instrument, . . . and the facts of the particular case.”

Section 4 of the same chapter, Cahill’s St. ch. 98, ¶ 24, provides that “An instrument is payable at a determinable future time, . . . which is expressed to be payable: 1. At a fixed period after date or sight.” In the instant case we construe the note as being payable ten days after sight — after it was presented to the defendant after date. And since section 53 above quoted provides that where an instrument payable on demand is negotiated an unreasonable length of time after it is due, the holder is not deemed to be a holder in due course. And section 192 provides that what is an unreasonable time must be determined from the facts of the particular case. Here the note was dated August 15 and was due and payable ten days after sight. It was not negotiated to the plaintiff until the latter part of November — more than three months thereafter. The facts sought to be shown by the defendant on the trial might reasonably tend to show that when plaintiff took the note she took it at her peril. In re Estate of Philpott, 169 Iowa 555; Consiglio v. Longhi, 205. Ill. App. 441; Brannon’s Negotiable Instrument Law, page 407.

In the Philpott case, an action was brought on two promissory notes dated June 12, 1911. The defense interposed would have been good against the payee of the note, and the question was whether the owner of the note was a holder in due course. The note was payable “on or before four- after date,” and plaintiff contended it was payable on demand. The court said, p. 557: “Adopting for the moment the plaintiff’s contention at this point, and reading the note as payable on demand, another difficulty confronts him. Upon the negotiating of such a note an unreasonable length of time after its issue, the holder is not deemed a holder in due course. Sec. 3060-a53. In this case the date of issue was June 12, 1911, and that of negotiating January 18, 1912. Under the authorities, a reasonable time for the negotiating of a demand note is rather brief. Its dishonor is not long delayed. In the following cases, respectively, two days, seven days, and thirty days were held to be a reasonable time: Field v. Nickerson, 13 Mass. 131; Thurston v. McKown, 6 Mass. 428; Ranger v. Cary, 1 Metc. 369.

“In the following cases respectively, two months and a half, three months and a half, and eight months have been held beyond a reasonable time and sufficient to dishonor a demand note: Losee v. Dunkin, 7 Johns. (N. Y.) 70; Stevens v. Bruce, 21 Pick. 193; Ayer v. Hutchins, 4 Mass. 370; Bank v. Jenness, 2 Metc. 288.

“There is, however, no definite rule to be applied, and among other elements ‘the facts of the particular case’ are to be considered, 3060-al93, It is clear, therefore, that the defendant was entitled to go to the jury on this question if upon no other.” In Brannan’s Negotiable Instruments Law, page 407, the author, after discussing sections 53 and 193 (192) of the Negotiable Instruments Law, says: “A demand note, negotiated an unreasonable time after its date, proclaims to all the world, ‘I have been dishonored. Take me at your peril. ’ What constitutes an unreasonable delay depends on ‘the facts of the particular case. ’ (193).” .

The judgment of the circuit court of Cook county is reversed and the cause is remanded for a new trial so that all of the facts can be adduced. When all of the evidence is heard, the question whether the note was presented to the defendant within a reasonable time will be for the jury unless the evidence is of such a character that all reasonable minds cannot draw different conclusions, when the question would be for the court to decide. Murray v. Third Nat. Bank of St. Louis, 234 Fed. 481.

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

Reversed and remanded.

Hatchett and HcSurely, JJ., concur.


author: Mb. Presiding Justice O’Connor

text:
    Lawrence P. Romano & Company, Appellee, v. Baird & Warner, Inc., Appellant.
    Gen. No. 34,966.

      Opinion filed June 22, 1931.
    Jacob M. Sherbahn, for appellant.
    Pruitt & Grealis, for appellee.
   Mb. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover $378' claimed as real estate broker’s commissions for procuring a tenant for the defendant. The defendant filed an affidavit of merits denying that plaintiff had procured a tenant for defendant and averred that defendant, a regularly licensed real estate broker, had itself obtained the tenant. The case was tried before the court without a jury, and there was a finding and judgment in plaintiff’s favor for the amount of its claim, and the defendant appeals.

The record discloses that on November 19, 1930, the case was called for trial, and thereupon the defendant submitted its written motion, supported by an affidavit, that an order be entered “denying the plaintiff the right to maintain the action herein until the franchise tax, fees and penalties due to the State have been paid in full.” The motion was overruled and the defendant excepted. Thereupon plaintiff introduced evidence in support of its claim and the defendant offering no evidence, there was a finding and judgment in plaintiff’s favor.

The only argument made in this court is that the court erred in denying plaintiff’s motion. The affidavit in support of defendant’s motion was made by its counsel. It set up that “on or about November 12, 1930, this affiant inquired by letter of the Secretary of State as to whether or not the franchise tax due to the State from the plaintiff herein had been paid as required by statute; that in answer to said letter” the affiant received a letter and statement from the Secretary of State which was attached to and made a part of the affidavit. The letter is addressed to the defendant and states that in response to a letter from the defendant the Secretary of State is enclosing “herewith statement of franchise tax and penalties due” from Lawrence P. Romano & Company. The statement is dated November 13,1930, and is in the form of a notice from the Secretary of State to Lawrence P. Romano & Company, notifying Romano & Company that under the General Corporation Act, Romano & Company owes the State a franchise tax and penalties aggregating $157.33, The notice then concludes; “In case you wish to come to Springfield for a hearing you must notify me of this fact within ten days from the date of this notice. This Is the Only Notice That Will Be Sent.”

The defendant contends that the court should have sustained its motion denying plaintiff the right to maintain its action until the franchise tax was paid, and reliance is placed, upon section 128, Cahill’s St. ch. 32, ¶ 128. That section is as follows: “No corporation required to pay a franchise tax or fee under the laws of this State shall transact any business in this State or maintain any action at law or suit in equity, unless such corporation shall have paid such franchise tax, or such fees and penalties when the same become due and'payable until such franchise tax, fees and penalties have been paid in full.” Before the defendant is entitled to the benefit of section 128, it must pr'ove to the court that plaintiff was in default in the payment of a franchise tax due the State. Obviously, receiving a letter from the Secretary of State inclosing a statement of that official to the plaintiff is not evidence of that fact. The letter and statement are not evidence at all. No statute or law has been pointed out making such letter or statement evidence and we have been unable to find any. There being no evidence offered by the defendant that plaintiff was in default in the payment of this franchise tax, obviously the motion was properly denied. Moreover, even if the statement received by the defendant from the Secretary of State above referred to might be considered as being properly before the court, it did not show that the question of the amount of the penalties claimed to be due from plaintiff to the State of Illinois had been determined. The statement, sent by the Secretary of State to the plaintiff advises plaintiff that it might come to Springfield for a hearing on the matter and that the document was but a notice to plaintiff that the Secretary of State was claiming there was a certain amount due from plaintiff under the Corporation Act. The statute requires such notice. (Section 112, Cahill’s St. ch. 32, ¶ 112.)

There is another reason why the defendant’s motion was properly denied. It came too late. The motion was not made until the case was reached for trial on November 19, 1930. And the motion being in the nature of a plea in abatement, should be made at the earliest opportunity. The suit was brought July 1, 1930, on which date plaintiff filed his statement of claim. July 10, the defendant entered its appearance by its counsel and it was given additional time within which to file its affidavit of merits and on July 29, 1930, it filed its affidavit of merits. Nothing is set up in the affidavit of merits to the effect that plaintiff was in default in the payment of its, franchise tax and nothing appears to have been done until November 12, when defendant wrote the Secretary of State a letter. The Secretary of State replied on the next day, November 13, and inclosed a notice which he had on that day sent to the plaintiff claiming that plaintiff was delinquent in the payment of its franchise tax. Under the statute, it was the duty of the Secretary of State to give this notice much sooner to plaintiff. Section 112, Cahill’s St. ch. 32, ¶ 112. If the defendant desired to interpose as a defense that plaintiff was in default in the payment of its franchise tax to the State, it should have set up that fact in its affidavit of merits, but it made no move to do so until a few days before the case was reached for trial, when it presented its motion for a discontinuance, but it made no suggestion that it be allowed to amend its affidavit of merits by setting up this additional defense.

For the reason stated the judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett and HcSttrely, JJ., concur.


text:
    Bertha Zister, Administratrix of the Estate of Anthony M. Zister, Deceased, Appellant, v. William E. Pollack et al., Appellees.
    Gen. No. 35,053.

      Opinion filed June 22, 1931.
    Crowe, Gorman & Savage, for appellant.
    John A. Bloomingston, for certain appellees; Essington & McKibbin, for certain other appellees; Hamilton K. Beebe, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiff seeks to reverse a judgment of the circuit court of Cook county dismissing his suit at his costs on the ground that the original declaration did not state a cause of action and that the cause of action stated in plaintiff’s amended declaration was barred because more than one year had elapsed since the death of the deceased. The action was brought under the Injuries Act to recover damages claimed to have been sustained by the heirs at law of Anthony M. Zister, deceased, whose death, it was alleged, was caused by the negligence of the defendants.

The suit was commenced February 21, 1930, and the declaration, which was filed April 10, 1930, was in three counts. The allegations of the declaration, so far as it is necessary to state them, are that Anthony M. Zister, the deceased, “on to-wit, February 16, A. D. 1929,” through the negligence of the defendants in operating two automobiles on streets in Chicago, was struck by the automobiles with great force and violence “and thereby the said Anthony M. Zister was then and there thrown with great force and violence to and upon the ground there, and was thereby then and there killed,” and that he left him surviving certain heirs. At the conclusion of the third count it was alleged, “To the damage of the plaintiff, as administratrix, as aforesaid, of Ten Thousand Dollars ($10,000), and therefore she brings her suit within one year from the date of death of Plaintiff’s intestate. ’ ’

To the declaration the defendants filed pleas of (1) the general issue, (2) nonownership and operation of the automobiles, and (3) the statute of limitations of one year. Afterwards on June 25, 1930, plaintiff, by leave of court, filed her amended declaration in which the allegations were substantially the same as in the original declaration, except that in the amended declaration it was alleged that plaintiff died February 24, 1929, as the result of the injuries which he sustained February 16, 1929. In each of the counts it was alleged that, “And this suit is brought within one year from the death of deceased.”

To the amended declaration the defendants again pleaded (1) the general issue, (2) nonownership and operation of the automobiles, and (3) that the cause of action set up in the amended declaration did not accrue within one year after the death of Anthony M. Zister. To the first and second pleas plaintiff filed a similiter and a replication to the plea on the statute of limitations, traversing the averments of the plea.

January 15, 1931, the bill of exceptions states the cause came on for hearing before a judge and a jury, and it was stipulated by the parties that “Anthony M. Zister was injured on February 16, 1929, and died as the result of said accident and injury on the 24th day of February, 1929, and that on the 21st of February, 1930, the suit was commenced.” With these facts agreed upon the questions whether the original declaration was wholly insufficient, and whether the cause set up in the amended declaration was barred by the statute of limitations, were submitted to the court and the finding of the court, in effect, was that plaintiff’s original declaration was insufficient and it was stricken; and further, that the statute of limitations barred the cause of action asserted in the amended declaration. It appears that the procedure was anomalous, but the effect of the finding and judgment is that plaintiff could not recover if it had been proven that the accident resulted through the negligence of the defendants, and that the deceased was injured on February 16 and died on the 24th as a result of the injury; that with these facts proven the original declaration was insufficient to support a judgment. We think the ruling was wrong because any inconsistency in the allegations of the declaration as to whether plaintiff died on February 16,1929, or within one year prior to the beginning of the suit, viz., February 21, 1930, would have been cured by verdict, the facts being as stipulated.

The right to recover for the wrongful death of a person, such as is the claim in the instant case, is wholly statutory. Hartray v. Chicago Rys. Co., 290 Ill. 85. Section 2 of the Act, Cahill’s St. ch. 70, ¶ 2, which creates the right, provides that “every such action shall be commenced within one year after the death of such person.” And in the Rartray case it was held that this statute “is more than an ordinary statute of limitations and goes to the right to sue at all.” It was there further said (p. 87): “a declaration must allege or state facts showing that the action is brought within the time prescribed by the statute.” In stating the facts in the Hartray case the court said: “This suit was brought November 28, 1910, and the declaration alleged that the injury resulting in death occurred June 27, 1909. The declaration contains no allegation that the action was commenced within one year after the death of Jagielski nor was the date of his death averred.” It was there held that the court should have sustained defendant’s motion in arrest of judgment because of the insufficiency of the declaration in that it failed to show that the suit was brought within a year after the death of the deceased. From the above quotation it is obvious that the declaration in the Hartray case was materially different from the declaration in the instant case. In that case the court said: ‘ ‘ The declaration contains no allegation that the action was commenced within one year after the death of Jagielski nor was the date of his death averred,” while in the instant case it is alleged that plaintiff brought “her suit within one year from the date of the death of plaintiff’s intestate.”

We think it is obvious that the declaration would have been sufficient after verdict. 1 Chitty’s Pl. 673; Sargent Co. v. Baublis, 215 Ill. 428; Walters v. City of Ottawa, 240 Ill. 259; Bishop v. Dignan, 223 Ill. App. 178; although it is vulnerable to a special demurrer. The declaration having been merely defective, had it been tested by a special demurrer, it might be amended, as was done, after the statute had run without stating a different cause of action, and the statute of limitations would not be a bar. Klawiter v. Jones, 219 Ill. 626; Eylenfeldt v. Ill. Steel Co., 165 Ill. 185; Foster v. St. Luke’s Hospital, 191 Ill. 94.

In the Walters case, supra, in speaking of the rule of a pleading being aided by verdict, Mr. Justice Dunn, in delivering the opinion of the court, said (p. 264): “The rule as to aider by verdict is stated by Chitty as follows: ‘Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by verdict. The expression “cured by verdict” signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleading was duly proved at the trial. And such intendment must arise not merely from the verdict, but from the united effect of the verdict and the issue upon which such verdict was given. On the one hand the particular thing which is presumed to have been proved must always be such as can be implied from the allegations on the record by fair and reasonable intendment; and on the other hand, a verdict for the party in whose favor such intendment is made is indispensably necessary, for it is in consequence of such verdict, and in support of it, that the court is induced to put a liberal construction upon the allegations on the record.’ (1 Chitty’s Pl. 673.) ”

In the instant case the facts as stipulated show that Anthony M. Zister died on February 24, 1929, as a result of the injuries received on the 16th of February, and that the suit was commenced February 21, 1930, within one year from the death of the deceased. Any defect or inconsistency in the allegations of the declaration would have been cured by verdict and therefore the cause of action asserted in the amended declaration, being the same cause of action defectively asserted in the original declaration, was not barred.

There is another reason why the judgment must be reversed, and that is that the amendment to the declaration setting up the specific date of the death of the deceased, although filed more than a year after the date of such death, related back to the date of the filing of the original pleading. Section 39, Cahill’s St. ch. 110, ¶ 39. The legislature in 1929 amended section 39 of the Practice Act, which provided for amendments to pleadings by adding the following:

“Any amendment to any pleading shall be held to relate back to the date of filing the original pleading so amended, and the cause of action or defense set up in the amended pleading shall not be barred by laches, or lapse of time under any statute prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleading that the cause of action asserted, or the defense interposed in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact, or some other matter or matters, which are necessary conditions precedent to the right of recovery or defense asserted when such conditions precedent have been in fact performed.”

It will be noted that the amendment provides that where any pleading is amended, the amendment ‘ ‘ shall be held to relate back to the date of the filing of the original pleading . . . and the cause of action . . . set up in the amended pleading shall not be barred by . . . lapse of time under any statute prescribing or limiting the time within which an action may be brought ... if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleading that the cause of action asserted, ... in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact.”

In the instant case, if we assume that the original declaration did not state a cause of action because it failed to specifically allege the date of the death of the deceased, so that it did not appear that the suit was brought within a year after the death of Anthony M. Zister, yet we are of the opinion that this defect might be cured after the expiration of one year by virtue of this amendment. At most, the original declaration was defective in that it failed to allege “the existence of some fact,” viz.: the date of the death of the deceased. It is obvious that the “cause of action asserted in the amended declaration grew out of the same transaction or occurrence and is substantially the same as set up in the original pleading.” The cause of action asserted in both the original and amended declaration was to recover damages on account of the claimed negligence of the defendants in striking Anthony M. Zister on February 16, 1929, as a result of which he died. The time and place of the accident are particularly pointed out in both pleadings. The only allegation claimed to have been omitted in the original declaration was the date of the death of the deceased. It is clear that the cause of action asserted in both pleadings is one and the same and not different causes of action.

We think it equally plain that the legislature, in passing the amendment to section 39, had in mind a situation such as is involved in the instant case, where, through inadvertence of counsel, some allegation had been omitted which in no way affected the existing ■facts or merits of the cause asserted. This is shown by the whole amendment and particularly does it appear that the legislators had in mind an action to recover for the wrongful death under chapter 70, because it is specifically stated that the statute applies to causes of action which must be brought within a limited time, showing clearly that they had in mind the holding of our Supreme Court in the Hartray case, supra, — that, under chapter 70, the right to bring the action was limited to one year after the date of the death. To hold here that the amendment did not accomplish this object would in effect be holding that the legislature accomplished nothing by the passing of the amendment but a mere idle gesture.

Under a long and well established rule of law “we are bound, if possible, to give it (an act of the legislature) effect ut res magis valeat quam pereat.” Unity v. Burrage, 103 U. S. 447. As stated in Spicer v. Spicer, 249 Mo. 582-599, “Whenever consistent with reason, that construction which will make the statute operative should be applied. ‘It is a cardinal rule that all statutes are to be so construed as to sustain rather than ignore or defeat them, to give them operation if the language will permit, instead of treating them as meaningless.’ (2 Lewis Sutherland on Stat. Construction, 2 ed., sec. 498).” The cardinal rule of construing statutes is to ascertain the intention of the legislature. Hoyne v. Danisch, 264 Ill. 467; People v. Camargo School Dist., 313 Ill. 321; Ketcham v. Board of Education, 324 Ill. 314.

In the Eoyne case the court said (p. 483): “The intention of the law-makers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to their real intent. (Cruse v. Aden, 127 Ill. 231.) In determining the meaning of a statute the court will always have regard to existing circumstances, contemporaneous conditions, the objects sought to be attained by the statute and the necessity or want of necessity for its adoption. (People v. Kipley, 171 Ill. 44.) In seeking for such an intention we are to consider the language used by the legislature, the evil to be remedied and the object to be attained. (Hogan v. Akin, 181 Ill. 448.) In construing a statute the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the statute though not within the letter. A thing within the letter is not within the statute if not within the intention. When the intention can be collected from the statute, words may be modified or altered so as to obviate all inconsistency with such intention. (Krome v. Halbert, 263 Ill. 172.) It is a well established rule in construing statutes, that when great inconvenience or absurd consequences will result from a particular construction, that construction should be avoided, unless the meaning of the legislature be so plain and manifest that avoidance is impossible.”

Prior to the enactment of the amendment to section 39, there were many pitfalls that were fatal to a plaintiff should his counsel fail to allege in his declaration all essential facts and should the time limited within which an action must be brought have expired before the omission had been discovered. And such omissions in most cases do not prejudicially affect the defendant in the filing of his pleading or the making of his defense. It was to obviate and remove these pitfalls that the Legislature enacted the amendment. With this construction, effect will be given to the enactment.

New York Cent. & H. R. R. Co. v. Kinney, 260 U. S. 340, was an action to recover damages for personal injuries, and a considerable period of time after the statute of limitations would have barred such action, plaintiff amended his declaration or complaint by alleging that at the time of the railroad collision the parties were engaged in interstate commerce, and it was contended that this amendment stated a new cause of action which was barred by the statute of limitations. The contention was denied. Mr. Justice Holmes, in delivering the opinion of the court, said (p. 346): “The amendment ‘merely expanded or amplified what was alleged in support of the cause of action already asserted . . . and was not affected by the intervening lapse of time. ’ Seaboard Air Line Ry. Co. v. Benn, 241 U. S. 290, 293. ‘The facts constituting the tort were the same, whichever law gave them that effect. ’ ... Of course, an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.”

We think the liberal rule mentioned by Mr. Justice Holmes should be applied in the instant case. See also Barnes v. Cudahy Packing Co., 228 Ill. App. 490.

The construction to be placed on the amendment of section 39 has not been passed upon by our Supreme Court, but the question was considered by another division of this court in Hanley v. Waters, 255 Ill. App. 239. In that case an action was brought on September 24, 1926, to recover for the wrongful death of an eight-year-old boy who, it was alleged, was struck and killed October 27, 1925, through the negligent operation- of an automobile by the defendant. There was no allegation in the declaration that the deceased left any surviving heirs or next of kin. About two years after the death of the boy the declaration was amended by alleging that the deceased left him surviving his father, mother and brother. The case was tried; there was a verdict and judgment in plaintiff’s favor for $10,000 entered March 5, 1929, and a writ of error was sued out of this court prior to July 1, 1929, when the amendment to section 39 went into effect. It was held that the Act did not apply to the case because it had been disposed of before the amendment was enacted. The court, however, discussed the meaning of the amendment and held that the statute permitted amendments to a declaration only to cure a mere defect in the declaration; that unless the declaration stated a cause of action prior to the running of the statute, the amendment to section 39 was ineffective. The court, after quoting the amendment, said (p. 244): “It will be noticed that the amendment is to be applicable ‘if it shall appear from the original and amended pleading that the cause of action asserted ... in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading. ’ But in the original declaration in the present case no cause of action was asserted because essential facts (viz., that deceased had left him surviving next of kin who had suffered pecuniary loss because of the death) were not alleged. And, hence, we do not think that the cause of action asserted in the amended declaration can be considered as being substantially the same as that stated in the original declaration. There is in the amendment the further clause, viz., ‘even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact, or some other matter or matters, which are necessary conditions precedent to the right of recovery . . . when such conditions precedent have been in fact performed.’ But we think that plaintiff’s failure to allege in the original declaration the fact of the survival of next of kin, etc., amounted to more than a mere defect in the pleading.”

It has long been the settled law of this State that a “mere defect in the pleading” might be amended after the statute of limitations had run, without affecting the plaintiff’s right to recover. Klawiter v. Jones, 219 Ill. 626. So that the amendment as construed in the Hanley case would be ineffective and meaningless,— which construction we think ought not be adopted unless there is compelling reason for doing- so. We are of the opinion that in any view of the case, the amendment to the declaration was authorized by the amendment of section 39 of the Practice Act, Cahill’s St. ch. 110, If 39, and therefore plaintiff’s right to maintain her action was not barred.

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

Reversed and remanded. ■

Hatchett and HcSurely, JJ., concur.


text:
    H. A. Sideman and H. B. Siegel, Trading as Stanley Roberts & Company, Defendants in Error, v. William J. Baumann and Caroline Baumann, Plaintiffs in Error.
    Gen. No. 35,060.

      Opinion filed June 22, 1931.
    Joseph P. Immel, for plaintiffs in error.
    No appearance for defendants in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this writ of error the defendants seek to reverse an order of the municipal court of Chicago denying their motion to vacate a judgment entered in favor of plaintiffs and against defendants.

The record discloses that on May 19, 1930, plaintiffs, who claimed to be the payees of a promissory note for $2,300 made by the defendants, dated April 26, 1930, caused judgment to be entered in their favor and against defendants for $2,358.04, being the face of the note with interest and $50 attorney’s fees. On October 9, the defendants filed their motion,' supported by a verified petition, to vacate and set aside the judgment and for leave to defend the case on its merits. The motion was entered and continued to November 26, when defendants were given leave to file their amended petition in support of their motion. The matter was then heard, the motion denied, and the defendants prayed an appeal to this court. Subsequently this writ of error was sued out.

The hearing on the motion to vacate was based on the petition and the amended petition. The petition set up that although the judgment by confession was entered in May, the defendants knew nothing of it until served with an execution on October 3, 1930; that the note in suit was given by defendants for what they thought wás a contract to buy two lots from plaintiffs; that the note was fraudulently obtained by plaintiffs and was without consideration; that plaintiffs’ duly authorized agent stated at the time of the execution of the note that the lots were within the limits of the Village of LaGrrange; that all underground improvements such as gas, sewer, water, etc., were in. The petition further set up that the lots were not located in LaGrrange; that the underground improvements had not been installed; that they relied upon the statements of plaintiffs’ representatives, which were afterwards discovered by them to be false and fraudulent. It further alleged that at the time plaintiffs ’ representative stated that the property was very valuable and within a short time there would be a large increase in price; and it was averred that the price mentioned was grossly excessive. The amended petition sets up the same matters in more detail and further sets up verbatim a document executed by plaintiffs at the time of the execution of the note, which purports to be an option or proposition to sell defendants the two lots. The substance of this document is: That Stanley Roberts & Co. ‘ ‘ (not Inc.) ” is conducting a general estate business and guarantees the following statements and representations' to be true, and agrees to refund to any purchaser of the lots in the subdivision in question, bought from it, the full amount paid with 6 per cent interest, “provided the following statements and representations are established by the purchaser after personal inspection not to be as herein stated.” Then follow statements alphabetically enumerated from “A” to “I” both inclusive, the substance of which is that the property is located in Cook county “on Fifth avenue, one of Cook county’s principal highways which is paved — Approximately 15 miles from Chicago City Hall ... 3 minutes ride from schools, churches,” etc., “15 minutes ride to the city limits of Chicago, ... 3 minutes ride from limits of LaGrange. . . . $7,500 minimum building restriction. . . . Subdivided on plan approved by . . . Cook county,” and that the roads in the subdivision are built according to the specifications of the authorities of LaGrange. Following these appears the name, ‘ ‘ Stanley Roberts & Co. (not Inc.) ” and then:

“Relying only upon the statements and representations herein contained I have purchased property in Sherman Gardens Subdivision. I hereby agree to call at the office of the Stanley Roberts & Co. (not Inc.) for the purpose of enabling the Company to establish, exhibit and prove the verity of said statements and representations.
Chicago, Ill. 4/26, 1930
“I hereby tender the Stanley Roberts & Co. (not Inc.) —=- the sum of $2,300.00 (Note) initial payment on option for purchase” (describing the two lots.)
“In consideration of which the option is hereby granted to purchase said Lot(s) for the purchase price of $8,800 with interest on unpaid balances from date hereof at 6 per cent, such option to continue in force providing payments are made as follows:If payments are not made when due as above specified this option shall forthwith cease and all rights of optionee hereunder or in or to said real estate or moneys paid hereunder, terminate, and all amounts paid hereunder be retained by the undersigned agent as consideration for granting and continuance- of this option during such time as it continues. Provided, however, that if the payments requisite as hereinbefore specified, to continue this option in effect, shall be made and this option continue in effect and be thus in effect when amounts shall have been paid hereunder aggregating 50 per cent of the amount specified above as purchase price, then and thereupon this option shall be considered exercised and fulfilled by optionee, and optionee shall be thereupon entitled to receive and enter into with Owner of said real estate, a contract for deed upon the following terms and conditions:
“Payments under the said contract are to be made at the minimum sum of fifty cents (50^) per day, plus six per cent (6%) interest on the unpaid balance for each lot so purchased.
“The said contract is to set forth all restrictions on the said real estate, which restrictions are now on file at the office of the Stanley Roberts & Co. (not Inc.).
“When final payment for said Lot(s) has been made under the contract herein referred to, the purchaser is to receive a clear warranty deed to the above mentioned Lot(s) subject to such restrictions and to restrictions Qr regulations of any public authorities,
“No salesman has authority to alter this agreement in any particular, and it is understood that the Stanley Roberts & Co. (not Inc.) is not bound by any representation, agreements, terms or conditions not contained herein.
Stanley Roberts & Co. (not Inc.)
“I have seen the lots above enumerated and Am Desirous of Purchasing Same Strictly Upon the Merits of the property and not by any promises or statements made by your representative or upon any hearsay information I may have received. I Believe in the Future of the above property and am depending entirely upon my own judgment on the purchase of said property. I hereby acknowledge receipt of duplicate copy of this certificate.
“I therefore this date set my hand and seal.
“Seal Caroline Baumann
“Seal William J. Baumann
“A contract for Deed signed and sealed by all parties concerned will be prepared within thirty (30) days after this agreement is accepted by seller.
Phone No phone
Seal....................
3310 N. Troy St.
H. A. Sideman Broker
By S. M. Schwid”

We are unable to properly designate the document above quoted and it bears the earmarks of being prepared to entrap the unwary. It starts by saying that Stanley Roberts & Co. (not Inc.) guarantees certain statements and agrees to refund any money paid to it in case the statements are not true. And after the specification of the statements, it purports to be signed by Stanley Roberts & Co. (not Inc.). Then follows what purports to be a tender of $2,300 in the form of the note in suit by the defendants to Stanley Roberts & Co. as the initial payment, and in consideration of the note the option is granted defendants to purchase the two lots for $8,800; the unpaid balance to be made as follows:-. It therefore appears that no time is designated within which the balance of the $8,800 is to be paid. The document then continues, that if the payments are not made when due (as stated, there is no time for payment designated in the contract),» all of the rights of the “optionee terminate and the amount paid is to be retained by the undersigned agent as consideration for granting* and continuance of this option.”

It then provides that if the payments are made as designated (no dates are mentioned) until 50 per cent of the purchase price has been paid, then the option shall be considered exercised by the “optionee” and the ‘ ‘ optionee ’ ’ shall thereupon be entitled to receive a contract for a deed from the owner. Who the owner is is not shown, nor is there anything said to show any authority of the agent to act for the owner, whoever he might be.

The document also provides that when all the payments have been made by defendants they are to receive “a clear warranty deed” to'the premises subject to restrictions. Again, the document purports to be signed by Stanley Roberts & Co. (not Inc.). Then follows a statement that the purchasers have decided to purchase the lots “strictly upon the merits” and that “they believe in the future of the property.” This is signed by the two defendants and “H. A. Sideman, broker, by S. M. Schwid.” Then appears the following: “A contract for Deed signed and sealed by all parties concerned will be prepared within thirty (30) days after this agreement is accepted by seller,” Nowhere is there any acceptance by the seller, whoever he might be.

It is obvious that the document is ambiguous and meaningless. It is not a binding obligation on anyone. Weber v. Hulbert, 225 Ill. App. 321.

The order of the municipal court of Chicago is reversed and the cause is remanded with directions to allow the defendants’ motion and that leave be given them to defend the case.

Reversed and remanded with directions.

Hatchett and HcSurely, JJ., concur.


text:
    George J. Jennings, Appellee, v. Calumet National Bank, Trustee. Joseph J. McCarthy et al., Appellants.
    Gen. No. 35,111.

      Opinion filed June 22, 1931.
    Rehearing denied July 6, 1931.
    Peden, Murphy & Byan, for appellants; Gerald Byan and John C. Melaniphy, of counsel.
    McKinney, Lynde & Grear, for appellee; William E. Dever, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse a decree entered by the superior court of Cook county enjoining them from using or maintaining a gasoline storage tank to be used in connection with a gas filling station located in certain premises in Chicago.

The record discloses that on February 11, 1929, complainant filed his bill, alleging that he and his wife owned a lot in block 1, which block was located at the southwest corner of 79th street and Jeffery avenue, Chicago; that the defendant Calumet National Bank, as trustee, owned four lots in the block and leased them to the defendant McCarthy; that a permit had been obtained from the City of Chicago by McCarthy to install a 1,000-gallon tank in a part of one of the lots and to construct a gas filling station, and that he was not legally authorized to do so because he had obtained insufficient frontage consents; that for the purpose of circumventing the provisions of section 2279 of the Municipal Code of Chicago, 1922, the defendants had devised a scheme to install the tank in a part of one of the four lots so that it would require frontage consents of a majority of but 636.6 feet, while by the terms of the ordinance it would require consents from a majority of more than 1,200 feet; that the tank had been surreptitiously installed in the nighttime, and that unless the defendants were restrained complainant’s property would be greatly damaged and he would suffer irreparable injury. It was further alleged that the purported consent of the owner of one of the lots, the South Chicago. Christian Church, was invalid. There was a further charge that the lot in which the tank was installed yas within 200 feet of a church, contrary to the provision of the ordinance.

The City of Chicago and one of the officials, who were made parties defendant, are not involved on this appeal and we shall hereafter refer to the bank and McCarthy as the defendants. The defendants filed their answer denying the violation of any ordinance and averring that what had been done by them was in all respects in accordance with the law.

The case was referred to a master to take the evidence and report. He found that the defendants did not violate the ordinance by designating a part of the lot in which the tank was installed as a “plot of ground”; that the purported consent of the South Chicago Christian Church was invalid and as a result defendants had not obtained sufficient frontage consents, and further found that the complainant had suffered no special damage, and for that reason recommended that the bill be dismissed. Both parties filed objections to the report, most of which were ordered to stand as exceptions before the chancellor, some of them were sustained and some of them overruled, and the decree entered enjoining the defendants as above stated. The chancellor in effect sustained the master, except that he found that the complainant would suffer special damage in case the tank and filling, station were constructed. He found, inter alia, that the defendants did not comply with the ordinance because the consent of the South Chicago Christian Church was invalid, therefore defendants had not obtained sufficient frontage consent, and that the complainant would sustain irreparable injury unless the defendants were restrained from using the storage tank in connection with the filling station.

The evidence shows that the defendant bank owned the four lots at the southwest corner of 79th street and Jeffery avenue; that 79th street runs east and west and Jeffery avenue runs north and south. The lots front on 79th street and are 110 feet deep, extending to a 16-foot alley on the south. Jeffery avenue and 79th street are each 66 feet in width. The lots are numbered 1, 2, 3 and 4, lot 1 being the corner lot. It has a frontage of 33.6 feet and the other three a frontage of 25 feet each. The tank was installed in the west 24 feet of the south 25 feet of lot 4, being placed beneath the surface of the ground, and was to be connected with the filling station to be erected on the lots — the gas to be pumped from the tank to the filling station. The piece or plot of ground is 151 feet from the north side of 79th street, 150.6 feet from the east line of Jeffery avenue, and 158.6 feet from the west line of Euclid avenue, the first north and south street immediately west of Jeffery avenue.

Complainant charged the defendants with the violation of section 2279 of the Municipal Code of Chicago, which provides: “It shall be unlawful to install any tank or tanks for the storage of any of the liquids mentioned in section 2277 in any lot or plot of ground without first obtaining the written consent of the property owners representing the majority of the total frontage in feet of any lot or plot of ground lying wholly or in part within lines 150 feet distant from and parallel to the boundaries of the lot or plot of ground upon which said tank or tanks is or are to be installed; provided, however, that for the purpose of this ordinance only the frontage of any such lot or plot of ground or that part of the frontage of any part or (of) such lot or plot of ground as comes within the 150 foot limit herein prescribed shall be considered. . . . No such tank or tanks shall be installed in any lot or plot of ground where any of the boundaries of any such lot or plot of ground are within 200 feet of the nearest boundary of any lot or plot of ground used for a school, hospital, church or theatre. . . . Provided, further, that for the purposes of this ordinance, whenever the lot or plot of ground in which such tank or tanks is or are to be installed is in any shape other than a rectangle, the 150 foot limiting line aforementioned shall not extend in distance 150 feet from any point in the boundaries of any such lot or plot of ground. ’ ’

It is conceded that the liquids covered by the ordinance include gasoline. If the defendants had the right to lay out the plot of ground at the south end of lot 4 in which the tank was placed, and measure from this plot, the only frontage involved would be those lots fronting on the south side of 79th street and the west side of Jeffery avenue. It is conceded that if the defendants had no such right, but that the 150 feet mentioned in the ordinance must be computed from the boundaries of lot 4, then there were insufficient frontage consents obtained. It is also conceded that even if the defendants’ construction of the ordinance is correct, and that the 150 feet be computed from the piece or plot of ground at the south end of lot 4, the defendants did not have sufficient frontage consents unless the consent of the lot claimed to be owned by the South Chicago Christian Church was valid.

The defendants contend that the ordinance “applies to and restricts only the installation of tanks for storage purposes”; that no reference is made to a filling station and that it is fundamentally a fire prevention ordinance, and People v. McDonnell, 238 Ill. App. 224, is cited. In that case a writ of mandamus was awarded against a city official commanding him to restore a license issued to the petitioner “ ‘to install a 2-1000 tank’ for a gas and filling station.” The court said (p. 225): “The ordinance forbids the installation of any tank for the storage of the liquids mentioned therein and for which a license is sought ‘in any lot or plot of ground where any of the boundaries of any such lot or plot of ground are within 200 feet of the nearest boundary of any lot or plot used for a school, hospital, church or theatre. ’ ” The court, continuing, said that the premises in which it was sought to install the filling station fronted on Ogden avenue and in the rear adjoined a lot owned by the Salvation Army fronting on Madison street. Part of the Salvation Army building was divided into stores and apartments and over them in the rear was an auditorium used for conducting religious services; that the trial court held that the “front entrance was more than 200 feet from where the tank or oil filling station was to be put up” and “that the entire building was not used exclusively for religious purposes. ” The court then said (p. 226): “As to the first ground, it is enough to point out that by the terms of the ordinance the 200 feet are to be measured from ‘the nearest boundary of any such lot,’ etc., and not from a building on it or its entrance.” As to the second ground the court said, considering that the main object of the ordinance was to prevent danger from fire or explosion to the persons who might assemble in buildings used for schools, churches, etc., that the object was not affected by the mere size of the structure.

Counsel for defendant also cite the case of Continental Illinois Bank & Trust Co. v. Standard Oil Co., 257 Ill. App. 425, as holding that they had the right to set off the plot of ground on the rear of lot 4 and to measure from that plot in determining the number of feet of frontage consents required. In that case a bill was filed to restrain the Standard Oil Company from installing and operating gas tanks to be used as a part of a gas filling station. .The opinion states the cause was referred to a master “on the sole question as to whether or not complainants would be damaged by the acts complained of in the bill.” The Standard Oil Co. owned lot 18 and the complainant the adjoining lot 17. There was a street between lot 18 and the Milwaukee railroad. The property was zoned for commercial purposes. The court said (p. 428): “Lot 18, after its purchase by the defendant, was divided into two lots, one fronting on Pratt Boulevard upon which the filling station was ■ to be erected, and the other, the rear lot, extending along the dedicated street known as Grlenwood avenue, to a vacated alley. It was upon this second lot, created out of lot 18 . . . that the tanks were to be placed, and it was for the purpose of installing them upon this second lot, created out of lot 18, that the permit was obtained from the city.” Complainant contended (1) that defendant did not have the right to divide lot 18 solely for the purpose of obtaining frontage consents; (2) that the frontage consent obtained from the Milwaukee railroad was invalid; and (3) that there was no special damage to complainant. The court said that if the Standard Oil company had the right to divide lot 18 into two lots, “and by so doing strictly complied with the ordinance, we are not prepared to say that its conduct in so doing would be such a fraud as in law would nullify its right to make the division of lot 18, as has been done.” And the court held the consent of the Railroad was valid, that there was no special damage shown, and the decree denying the injunction was affirmed.

In the instant case the defendants’ application, which was filed with the city for a permit to install the 1,000-gallon gas tank stated that the tank was to be used in connection with the filling station and that the gas would be pumped from the tank to the filling station. We think a proper construction of section 2279 of the ordinance required that the 150 feet mentioned in the ordinance be computed from the boundary lines of lot 4 and not from the piece or plot 25x24 feet at the south end of the lot. The ordinance provides that frontage consents must be obtained from the property owners representing a majority of the total frontage in feet of any lot or plot of ground lying within “150 feet distant from . . . the boundaries of the lot or plot of ground” upon which the tank was to be installed. In the instant case the lot upon which the tank was to be installed is lot 4. There is no plot of ground involved. We think the word “plot” as used in the ordinance would not apply to ground that was subdivided into ordinary lots but only to other grounds, and that the defendants had not the arbitrary right to set off the small piece at the south end of the lot 4, and by designating it a “plot” of ground to reduce the frontage consents required. We think this is the effect of the holding in People v. McDonnell, supra, although the specific point made here was not involved.

In view of what we have said it is unnecessary to pass on other contentions made, except the two contentions of the defendants that there is no evidence of any special damage suffered by the complainant, and that he was guilty of laches.-

The law seems to be well settled that a court of equity will not, at the suit of an individual, restrain the violation or threatened violation of an ordinance where there is no special damage to the individual. Joseph v. Wieland Dairy Co., 297 Ill. 574. It has also been held that a filling station is not a nuisance per se. Mitchell v. Wengelewski, 259 Ill. App. 438. But in the instant case, four experienced real estate men called by the complainant testified in effect that if a filling station were conducted on the four lots in question, it would depreciate complainant’s property from 5 to 20 per cent. This testimony was not contradicted. They based their opinions on the fact that in the conduct of the filling station there would be noise, confusion, honking of horns and starting and stopping of motors, etc.

The defendants objected to this evidence on the ground that the ordinance in question related to the installing of storage tanks and that any evidence with reference to the filling station was irrelevant. We think the contention is unsound. It is undisputed that the tank was to be used in connection with the filling station. Defendants’ application for a permit, which we have above referred to, expressly so states. In this respect the two cannot be separated. The finding of the chancellor on this point was in favor of the complainant, and upon a careful consideration of all the evidence in the record we are clearly of the opinion that it was warranted by the evidence and with greater reason is it clear that we would not be warranted in disturbing the finding of the chancellor on the ground that it was against the manifest weight of the evidence.

Was the complainant guilty of laches as the defendants contend? The evidence tends to show that on November 6, 1928, complainant (having learned on November 5 that defendants had installed the tank) caused written notice to be served on the defendant McCarthy. The notice was written by complainant’s counsel, in which it was stated that necessary steps would be taken to prevent the construction of the tank and filling station. This notice did not mention the complainant. It stated that counsel represented property owners who objected to the installation of the tank and filling station. It took but one day, October 31, to install the tank. On November 8, demand was made by complainant on the city to revoke the permit. Apparently after the tank was installed nothing was done on the property until about the first week of February, when the defendants began to fill the lots to a depth of about three feet and within a few days after this was observed the bill was filed. The defendant, McCarthy, having been advised on November 6 that property owners in the vicinity were objecting to the installation of the tank and filling station and that they would take necessary steps to prevent the construction of them, and little physical work being done from that date until the beginning of February, when the filling was commenced and the bill filed, we would not‘be warranted in holding that the complainant was guilty of such laches that a court of equity would not afford him relief. The .defendants had received no notice after November 6 that the property owners had changed their minds and would not object to the installation of the plant.

The decree of the superior court of Cook county is affirmed.

Affirmed,

Matchbtt and MoSurbly, JJ., concur.


author: Mr. Justice Matohett

text:
    Nellie E. Matson for the use of The Stearnes Company, Defendant in Error, v. City Market Company, Plaintiff in Error.
    Gen. No. 34,858.
    Opinion filed June 22, 1931.
    George Gannon, for plaintiff in error; S. S. Cunningham, of counsel.
    Edward E. Contarst, for defendant in error.
   Mr. Justice Matohett

delivered the opinion of the court.

February 15,1930, The Stearnes Co. began a suit for attachment against Nellie E. Matson and caused the City Market Co., together with numerous others, to be summoned as garnishee. Nellie E. Matson was not found but was served by publication and was defaulted, and judgment was entered against her in favor of plaintiff, The Stearnes Co., for $456.34, being the full amount of plaintiff’s claim.

The City Market Co. filed a verified answer to the garnishment writ, averring that at the time of the service of the writ it was not indebted to Nellie E. Matson and that neither then nor afterwards did it have in its possession any property belonging to her. Plaintiff contested the answer, and the cause was heard by the court on the stipulation of facts. There was a finding against garnishee and for Nellie E. Matson, and judgment for $489.79 was entered which the garnishee seeks to reverse by this writ of error.

The material facts stipulated are that Nellie E. Matson from and prior to September 19, 1928, and until November 1, 1929, owned and operated a restaurant consisting of a large quantity of chairs, tables, counters, kitchen equipment, etc.; that November 4, 1929, Nellie E. Matson was indebted to The Stearnes Company in the sum of $456.34 for restaurant supplies and equipment sold and delivered to her at her restaurant at 715 Sheridan road, Chicago, on open account from September 19, 1928, to November 4, 1929; that on November 6, 1929, Nellie E. Matson being indebted to the City Market Co. in the sum of $753 for meats and poultry, theretofore delivered to her at her restaurant on open account, executed and delivered to the City Market Co. a chattel mortgage upon all of the restaurant fixtures, equipment and utensils in said restaurant, together with her note in the principal sum of $753; that this mortgage was duly executed, acknowledged and recorded as required by law (a copy of the mortgage was attached to the stipulation and made a part thereof); that on December 1, 1929, there was due to the City Market Co. the amount named in its mortgage and an additional snm of $70 for merchandise sold on open account after the delivery of the mortgage; that on this date the City Market Co. under the terms of its mortgage took possession of the fixtures and equipment covered by the mortgage, and on December 6, 1929, sold the same under power of sale contained in the mortgage to one Charles Corts for $1,000; that within ten days thereafter he caused to be delivered to Nellie E. Matson a report of said sale (a copy of the report is attached to the stipulation and made a part thereof); further that Charles Corts at the time of the sale was the general manager of the City Market Co., and that the sale was made to him as agent of the City Market Co.; that Charles Corts at no time paid the City Market Co. the sum of $1,000 or any other sum in connection with the sale, and that he made the purchase as the agent of and in behalf of the City Market Co.

The stipulated facts are further that thereafter the City Market Co. by its bill of sale sold the said restaurant fixtures and equipment to S. A. Kitt and M. H. Tolofsen for $2,000; that the City Market Co. has retained the entire proceeds of said sale and not paid the same, or any part-thereof, to anyone for her use and benefit.

The parties further stipulated on the trial that the cause should be submitted to and considered by the court on the stipulation of facts and that the only issue to be adjudicated was whether the City Market Co. was liable to account to Nellie E. Matson, mortgagor, for the amount received by it on the sale to Kitt and Tolofsen in excess of $1,000, and that if the court held that the' City Market Co. was so liable, then judgment should be entered herein against the garnishee City Market Co. for the full amount of plaintiff’s claim and costs.

After the court heard the arguments of both parties the garnishee moved that it be discharged for the reason that the court had no jurisdiction of the subject matter, inasmuch as the amount, if any, due to the mortgagor, Nellie E. Matson, was an unliquidated amount and not subject to garnishment until such time as the amount had become liquidated by suit or otherwise. This motion was denied.

On motion of plaintiff the court ruled that the sale of the fixtures and equipment to Kitt and Tolofsen for $2,000 was a legal sale and that the City Market Co. was bound to account to Nellie E. Matson for the use of plaintiff in the sum of $489.79 and costs, and judgment was entered against the garnishee and in favor of plaintiff for that sum. To reverse that judgment the garnishee has sued out this writ of error.

The mortgage, which is in evidence, discloses that there is no provision therein by which the mortgagee might become the purchaser at its own sale. It had the right to take possession of the property upon default in the payment of the debt, and upon taking possession the legal title to the property conveyed by the mortgage vested in the mortgagee. This seems to be conceded by the parties, and the cases cited so hold. (McConnell v. People, 84 Ill. 583; Seaton v. Ruff, 29 Ill. App. 235; Metz v. McAvoy Brewing Co., 98 Ill. App. 584; Callaghan v. American Trust & Savings Bank, 196 Ill. App. 102.) It also seems to be conceded that in the absence of authority given in the mortgage so to do, the mortgagee had no right to purchase the property at its own sale, but the cases also seem to hold that such a sale is not void but only voidable at the election of the mortgagor. This question was decided in Featherstone v. Hendrick, 59 Ill. App. 497.

In that case the payee of chattel mortgage notes brought suit. Four of the number of mules which had been conveyed by the mortgage were seized under the chattel mortgage and sold at public sale, and plaintiff bid them in himself. Defendant asked the trial court to instruct the jury that if they believed from the evidence in the case that plaintiff took actual possession of the four mules in the case, then defendant was entitled to be credited with the actual value of such mules at the time plaintiff took possession of them without any regard to the amount for which plaintiff sold the mules at public auction or otherwise. The trial court refused to give the instruction, and such refusal was assigned for error on appeal. The court said:

“The instruction was properly refused. While it is the law that a trustee may not become a purchaser at his own sale, still such a sale is not void, but is only voidable.”

The court further said that while plaintiff was without legal authority to bid at the sale of the four mules, the sale was conducted after due notice by a licensed auctioneer; that plaintiff was the highest bidder, and that there was nothing to show but that he acted in perfect good faith; that defendant did not even show that he was willing to take the mules at the price at which they were bid, and that there was no evidence whatever of their actual value at the time of their seizure and sale, citing Waite v. Dennison, 51 Ill. 319; Phares v. Barbour, 49 Ill. 370.

The stipulation of facts here is to the effect that the public sale was made by an auctioneer, and that there was no irregularity about it other than the fact that the mortgagee purchased the property. Notice of the sale, together with full statement of the expenses and the amount for which the property was sold, was given to the mortgagor within ten days, and she does not seem to have made any objection whatsoever. It is true there is nothing in the record to show that she had knowledge that Oorts, who purchased the property, was in fact acting for the mortgagee, but she did have full knowledge of the amount for which the property was sold and of the costs and expenses of the sale.

In Seaton v. Ruff, 29 Ill. App. 235, the opinion of the court states:

“The mortgagor may waive all right to complain, and by his action may be estopped to say that the sale was not made pursuant to the power contained in the instrument. In such case the title of the purchaser cannot be assailed by the mortgagor, nor by his creditors who have no lien upon the property at the time of the purchase.

“It is not important to inquire whether the mortgagee in the present instance had sufficient grounds for taking possession, or whether the sale was authorized by the terms of the mortgage, for the plain reason that the only persons who had at that time any legal right to object, — to wit, the mortgagors — acquiesced in it and waived all objections they might have interposed. McCownell v. People, etc., 84 Ill. 583, 584; Jones on Chattel Mortgages, chapter 16. ”

There is no doubt, as was held in Waite v. Dennison, 51 Ill. 319, on which plaintiff here relies, that a sale at which the mortgagee became a purchaser, would not as against the mortgagor bar her equity of redemption, but the equity of redemption belongs to her and not to her creditors and she has a perfect right to waive the illegality if she saw fit to do so. We do not doubt the proposition that where a surplus would arise from the sale made under the mortgage, such surplus could be reached by an action of garnishment by creditors, as was held by the Appellate Court in Glass v. Doane, 15 Ill. App. 66, and by the Supreme Court in Pike v. Colvin, 67 Ill. 227, upon which plaintiff here also relies; but those cases are not applicable here for the reason that the second sale, which was made to Kitt and Tolofsen, was not made under the mortgage and did not purport to be made under the mortgage. There is no allegation of fraud or collusion here. If fraud in fact existed, plaintiff would not be without remedy (whether by garnishment we need not inquire), but no authority is cited so holding, and we know of no reason why a creditor, in the absence of any objection by the mortgagor and in the absence of any allegation of fraud, should be allowed to take advantage of a mere irregularity in a sale held under the. foreclosure of a chattel mortgage. The right to dis-affirm in such case is with the mortgagor and personal to the mortgagor or some person claiming under him. The facts stipulated fail to show that the garnishee was indebted at the date of the service of the writ or thereafter, and for that reason the judgment must be reversed.

Reversed.

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