author: Mr. Presiding Justice Dove

text:
    Nettie F. McKeage, Appellant, v. Eliza B. Coleman et al., Appellees.
    Gen. No. 9,178.
    Opinion filed March 10, 1938.
    Joel C. Carlson, of Chicago, and Harry C. Hanson, of Geneva, for appellant.
    Frank A. McCarthy, George Gillette and Norbert B. Tyrrell, all of Chicago, for appellee William J. Hoffmann.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

Sumner Coleman, a resident of Kane county, Illinois, died testate on May 9, 1882. His last will and testament was duly proven and admitted to probate bn May 25, 1882. He left him surviving his wife Marrietta N. Coleman and nine children, among them being James Coleman and Fred W. Coleman, his sons, and the plaintiff Nettie F. McKeage, a daughter. Marrietta N. Coleman, the widow, died intestate on August 28,1912, and James Coleman, the youngest child of the testator, attained the age of his legal majority in 1889. The original complaint in this cause was filed on February 23, 1934, and a year later an amendment thereto was filed. In addition to alleging the foregoing facts, the said complaint as amended described the land of which Sumner Coleman died siezed and averred that Fred W. Coleman failed, neglected and refused to pay the plaintiff the legacies as directed in said will and charged that on July 17, 1929, the said Fred W. Coleman attempted to convey, by warranty deed, the land so devised to him by his father, to the defendant, Wm. J. Hoffman. The complaint as amended prayed that the bequests to the plaintiff be declared a charge and a lien upon the real estate mentioned in the testator’s will, and that unless said bequests, together with interest thereon from the date when the same were to be paid, be paid by the defendants within such time as the court may determine, that then said real estate be sold to pay the same.

A copy of the last will of Sumner Coleman was attached to the' complaint as amended and by its provisions the testator nominated his wife as sole executrix and gave to his son, the said Fred W. Coleman, the livestock on his farm and bequeathed and devised to his wife Marrietta N. Coleman a life estate in the rest of his personal property and in the real estate involved herein. His will then provided: “After the death of my wife and my youngest child becoming of age, my son Fred W. Coleman is to have all my real estate. By paying the following legacies, to-wit: To my children Mary H. Cree, $1,000.00 one year after, $1,060.00 to Charleé J. Coleman; $60.00 to George S. Coleman, Fred W. Coleman, Nettie F. MeKeage, Eliza B. Coleman, Frank A. Coleman, James Coleman and Sumner N. Coleman. Two years after $1,060.00 to George S. Coleman, $60.00 to Sumner N. Coleman, Nettie F. Mc-Keage, Eliza B. Coleman, Frank A. Coleman and J ames Coleman. Three years after $1,060.00 to Sumner N. Coleman, $60.00 to Nettie F. MeKeage, Eliza B. Coleman, Frank A. Coleman and James Coleman. Four years after $1,060.00 to Nettie F. MeKeage, $60.00 to Eliza B. Coleman, Frank A. Coleman and James Coleman. Five years after $1,060.00 to Eliza B. Coleman, $60.00 to Frank A. Coleman and James Coleman. Six years after $1,060.00 to Frank A. Coleman, $60.00 to James Coleman. Seventh year $1,060.00 to James Coleman. The within legacies are to be paid to my children or their heirs.” The chancellor sustained a motion to dismiss the complaint as amended and rendered a decree finding that by the acceptance of the devise of the farm described in the complaint as amended the son of the testator Fred W. Coleman became vested with the fee simple title thereto, that he became personally liable to pay the plaintiff and the other children of the deceased, the several amounts mentioned in the will, that it appears from the complaint as amended that more than 10 years had elapsed since the last of said payments became due and payable and that therefore the relief sought was barred bv the statute of limitations. The decree dismissed the complaint as amended for want of equity and from that decree plaintiff has prosecuted this appeal.

Counsel for appellant insist that under the averments of the complaint as amended, appellant, under the provisions of the will of Sumner Coleman, is a legatee, that her legacy was made a charge and lien upon the real estate devised to her brother Fred. That his acceptance of said devise created not only a personal liability against him in favor of appellant for the amount bequeathed to her, but that by virtue of the provisions of said will, the relationship of trustee and cestui que trust arose and that her right to have the real estate sold to discharge her lien is not barred either by the statute of limitations or by laches. Counsel for appellant state that the only error relied upon by them for the reversal of this decree is the holding’ of the chancellor that the bequest to the plaintiff and her right to foreclose the same as a charge or lien against the real estate devised by Sumner Coleman to Fred W. Coleman, is barred by the statute of limitations.

Counsel for appellee concede that appellant, by the provisions of her father’s will, is a legatee and that the payment to her of the several amounts therein provided was made a charge and lien upon the real estate of the testator, which he devised to his son Fred. That the payment thereof became a personal liability of Fred W. Coleman by his acceptance of the testator’s devise of the land to him. That appellant also had an equitable lien upon said real estate but such equitable lien has been lost to her by laches. Counsel for appellee deny that any trust was created by said will but insist that if a trust was created, it is a trust arising* by implication of law and not an express trust and contend that appellant’s rights are analogous to those of a mortgagee, that the same limitations should apply and that this proceeding* is barred by laches or by the statute of limitations.

In Albretch v. Wolf, 58 Ill. 186, cited and relied upon by appellant, it appeared that Frank Bauer and George Hoehn were partners in business. Hoehn died testate naming G. A. Wolf as his executor. Hoehn’s will was duly admitted to probate in April, 1860 and letters testamentary were thereupon issued to Wolf. His will provided that if Bauer would deliver to Wolf for the benefit of testator’s daughter all notes which the firm held, amounting to $570, and further pay all the just debts of Hoehn, that then Bauer should have all the remainder of testator’s property, real and personal. After' the death of Hoehn, the terms of his will were accepted by Bauer and he delivered the notes to Wolf, the executor, and received from the executor the other property belonging to his deceased partner, but Bauer failed to pay the debts regularly proven against the estate and Wolf subsequently paid them as executor. In March, 1868, Bauer died and shortly thereafter Wolf, the executor, died. In June, 1869, the administratrix of the estate of Wolf filed a claim against the estate of Bauer. The administrator of Bauer’s estate insisted that Bauer took the property in the character of purchaser with an agreement upon his part to pay the debts of Hoehn and as no action was begun by Wolf or his representative within five years after the action accrued, it was barred by the statute of limitations. The court rejected this contention and held that Bauer took the property under the will of Hoehn and was charged with the payment of his debts. The court further held that a direct trust was created by the express terms of the Hoehn will and that the relation of trustee and cestui que trust existed and the statute of limitations was therefore not available either to the trustee or to his estate.

Mahar v. O’Hara, 9 Ill. 424, also cited by appellant was a suit instituted by a widow to enforce the payment of a contingent legacy secured to her by the last will of her deceased husband. It appeared that by said will the testator devised his homestead to his son James, expressing his desire that his wife and children should continue to reside thereon with his son James so long as they could agree, that in the event the widow should desire to reside by herself, James should build her a comfortable dwelling and deliver to her 100 bushels of corn, 20 bushels of wheat and 500 pounds of pork annually. The bill was filed on July 20,1840, and upon the hearing it appeared that the defendant James, who was appointed executor of his father’s will, accepted the real estate which had been devised to him and built the dwelling and delivered to his mother the provisions specified in the will until 1830, when he refused so to do for the reason that his mother had ceased to live in the house which he had built for her but had remarried and moved to Missouri. In reversing the decree of the circuit court which had dismissed the bill for want of equity, the court in its opinion said: “In equity, executors and administrators are trustees, and so also is a devisee who takes a devise, chargeable with legacies or debts'. No better illustration could be desired, than the case before us. Here the testator devised an estate to his son, who also he made his executor and in consideration of the devise, he imposed upon his son the burden of supporting the widow of the testator in his family, so long as they could agree, or she should choose to reside there, and when she should choose to live by herself, he should build for her a house, and furnish her annually with a specified quantity of corn, wheat and pork. Now in equity he is considered a trustee for the purpose of executing these provisions in favor of the widow, and by accepting the estate he assumed^ the trust, and the estate thus devised is not only chargeable in equity with the trust, but by accepting the devise he became personally responsible for the payment of the legacy according to the provisions of the will.”

The Albretch case, supra, held that a direct, express trust was created by the terms of the Hoehn will, that Bauer took the property charged with the payments of Hoehn’s debts and for that purpose held the property he received from Hoehn’s estate in trust, that the relationship of trustee and cestui que trust therefore existed and that so long as the duties of the trustee remained undischarged, the trustee could not avail himself of the provisions of the statute of limitations. Counsel for appellee concede that this holding is adverse to their contention but insists that the authorities cited by the court in Albretch v. Wolf do not support the conclusion reached by the court. It is true that the court cites with approval and quotes from Kane v. Bloodgood, 7 Johns Ch. 90, 11 Am. Dec. 417. It was held in that case that the suit, which was a bill brought by a legatee to enforce the payment of a legacy, was barred because the legatee did not bring suit within the period of limitations applicable under a statute of New York which gave a legal remedy for the recovery of the legacy. Applying the holding in Kane v. Bloodgood to the facts as shown in the Albretch case, the statute of limitations should have been held to be available to the administrator of Bauer’s estate because the legal remedy which was being asserted by the administratrix of Wolf’s estate had existed all the time. In Mahar v. O’Hara, supra, the devisee was executor of the will and no question of the application of the statute of limitations was involved.

Merton v. O’Brien, 117 Wis. 437, 94 N. W. 340, was a proceeding similar to the instant case. There as here , it was insisted that the plaintiff’s claim was an express trust created by a devise of real estate which was charged with the payment of money. In holding that it was not an express trust, the court said: “If this claim is to be sustained, certainly we shall have to materially enlarge our conceptions of express trusts in real property. It is to be remembered that the defendant O’Brien was never the executor of his father’s will, as the defendant was in the case of Powers v. Powers, supra, and hence that the trust relationship existing between executor and legatee never arose. He was simply a devisee of real estate, upon which was imposed a money charge or lien in favor of a third person. He was not required by the will either to sell the real estate and pay the charge out of the proceeds, or to use it in any particular manner for the benefit of the legatee, or to use it in any manner . . . if he did not choose to. It was his own property, subject simply to the payment of the charge. By accepting the devise, and taking possession thereof under the devise, he doubtless became personally liable to pay the charge thereon when it became payable by law. Evans v. Foster, 80 Wis. 509, 50 N. W. 410, 14 L. R. A. 117. His situation, then, was that he owned real property, subject to a lien thereon, which he had agreed to pay, and which might be foreclosed and enforced at any time after it fell due, which, under any theory of the facts stated, was more than 20 years before the commencement of this action. Section 3850, Eev. St. 1878. If, under these circumstances, he is to be held the trustee of an express trust, under the terms of subdivision 5 of the section quoted, then it is difficult to see why every mortgagor of lands is not also the trustee of an express trust, under said subdivision, or why every owner of lands which are subject to a lien, whether for purchase money or building materials or unpaid taxes, is not such trustee. This conclusion seems unavoidable if the premise be granted, and it becomes, perhaps, the strongest argument against the correctness of the premise. It is not meant that, in case a man owns and occupies property subject to a mortgage or charge, there may not be some characteristics which may properly be called ‘trust characteristics’ in his holding. His holding is fiduciary, to the extent that he may not destroy the property or commit waste to the prejudice of the mortgagee or owner of the charge; and so he may properly enough be called a trustee, in a general sense, as that term is frequently used to cover fiduciary relations of many kinds which do not rise to the dignity of express trusts.”

One of the cases cited and relied upon by counsel for appellant is Williams v. Williams, 82 Wis. 393, 52 N. W. 429, but that case was expressly overruled by Merton v. O’Brien, supra. In referring to the Williams case the court in Merton v. O’Brien, supra, said: “The widow in that case, who was the executrix, and hence a trustee for the legatee, had possession of the land as life tenant up to December, 1884; and it appears that the estate was then unsettled, and that one of the remaindermen became administrator in her place. Thus it might, perhaps, be said with truth that the property was in the hands of trustees of express trusts up to within a short time before the intervention took place, and hence that upon this ground the decision in that case was right. It must be admitted, however, that the decision was put squarely upon grounds which would sustain the ruling in the present case. In view of our recent rulings on the subject to the application of the statute of limitations in cases of trust as contained in Boyd v. Fire Ass’n and Buttles v. Be Baun, supra, which rulings were made after mature consideration of the subject, we do not feel that we can follow the reasoning of the Williams case; and so far as it indicates that a mere devisee of land, subject to the payment of a legacy charged thereon, is a trustee of the legatee, of such a nature that the statute of limitations will not run in his favor, it must be considered as overruled.” Nolan v. Donahoe, 161 Wis. 437, 94 N. W. 340, reaffirms the holding in Merton v. O’Brien, supra.

In Shuld v. Wilson, 225 Ill. 336, it appeared that the testator died in the State of California leaving real estate in Illinois and California. By his will certain pecuniary legacies were provided and the testator then directed that the residue of his estate, after paying all expenses, be divided between certain residuary legatees. The law of California provides for the payment of interest upon legacies and while it appeared that the principal amount of the legacies had been paid, still, under the California law there was a large sum due as interest and to subject certain of testator’s real estate to the payment of this interest this bill was filed. The residuary legatees in their answer interposed as a defense the California statute of limitations and laches. There was no proof in the record as to the California law in regard to the statute of limitations and in affirming the decree which dismissed the bill, the court said : “If, however, it appears from the will that it was the intention of the testator to make the pecuniary legacies a charge on the real estate, then the real estate must be resorted to to make up any deficiency in the payment of the legacies from the personal estate. But, independently of whether the pecuniary legacies were made a charge upon the residuary estate, we think the decree of the circuit court must be affirmed. There is no proof as to the statute of limitations of the State of California referred to in the answer, and we are not advised as to what said statute is. In this State it has been held that a creditor has ample means, through administration, to enforce payment of his claim against an estate, and although there is no express statute of limitations of the time in which such a lien can be enforced, where there is an unexplained delay on the part of the creditor, the period of seven years from the death of the party is adopted, by analogy to the lien of judgments, as a bar to the enforcement of the.lien. . . . This suit was not brought until seven years and eight months after the death of the testatrix. Such delay, unexplained, is a bar to the maintenance of the action. ’ ’ While this was a suit to recover interest upon a legacy, there is no material difference, in principle, between such an action and an action to recover the principal of the legacy. The court in the Slmld case expressly applied the seven year statute of limitations and held that the suit was barred by laches.

In Houck v. Herrick, 179 Ill. App. 274, it appeared that the testatrix by the provisions of her will devised the fee to her farm to a niece, Lizzie G. Eyan, subject to the life estate of her husband, Benjamin D. Herrick, and bequeathed $200 each to six children of her brother, John Houck, and expressly charged the payment thereof on the real estate which she devised to her niece. In a proceeding brought by the children of John Houck to enforce the payment of these legacies, the court in reversing the decree of the circuit court which sustained a demurrer interposed by Lizzie D. Eyan, said: “Appellees’ legacies were expressly charged on the land in question, and Lizzie Grove Eyan taking the fee was expressly directed as owner of the fee to pay those legacies; she accepted the provision in her favor and by that act became personally liable to pay the legacies, but they still remained a charge upon the land and appellees have a right to enforce this charge in a court of equity similar to the right of a mortgagee to enforce his lien by foreclosure, if he chooses to do so, without resorting to the personal liability of the maker of the note secured by the mortgage, or of any other party who may have become personally liable to pay the mortgage debt. It is familiar law that equity has jurisdiction in enforcing liens resulting from charges on property by will or by deed. Pomeroy Equity Jurisprudence, secs. 1244-1248; 40 Oyc. 2051. The method of raising the leg*acy is by the sale of the' property charged in analogy to proceedings for the foreclosure of a mortgage. 40 Cyc. 2051. The attachment of personal liability upon the devisee by reason of his ac-> ceptance of the devise does not affect the lien of the charge upon the land or bar a proceeding against the land. 40 Cyc. 2056. Jurisdiction of courts of equity in such cases has been in this State long established. Mahar v. O’Hara, 9 Ill. 424; Spangler v. Newman, 239 Ill. 616. . . . Lizzie Grove Ryan being personally liable to pay these legacies is in the position of a party personally liable to pay a mortgage debt and appellees had the right to bring her into this suit as codefendant with Benjamin D. Herrick the owner of the land on which the lien was created by the will. Scholten v. Barber, 217 Ill. 148. If the amount of the legacies is not raised by the sale of the land, a decree for the deficiency could properly be entered against her, the court therefore erred in sustaining her demurrer to the bill. ’ ’

The question arising in the instant case did not arise in Houck v. Herrick, supra, but the opinion in that case did clearly define the rights and liabilities of the parties interested arising where a devise of land is accepted under the same state of facts as are under consideration here. In our opinion the provisions of the will of Coleman did not create the relationship of trustee and cestui que trust as between Fred W. Coleman and appellant but Fred W. Coleman held the land subject to the equitable interest therein of appellant. In the Restatement of the Law of Trusts as adopted and promulgated by the American Law Institute, vol. 1. sec. 10, pages 32 and 33, it is stated: “An equitable charge is not a trust. In the case of an equitable charge, as in that of a trust, the person having title to property holds it subject to an equitable interest in another person. If an equitable charge is created, the equitable encumbrancer has an equitable lien upon the property, but the person who holds subject to the charge is the owner of the property, subject only to the lien; a trustee is not the owner of the trust property although he has title to it (see § 2, comment d). An equitable interest as well as a legal interest may be subject to an equitable charge, just as an equitable interest as well as a legal interest may be held in trust. After the equitable chargre is paid, the devisee can hold the property free and clear. On the other hand, where property is transferred upon a trust which is fully performed without exhausting the trust estate, the trustee holds the surplus upon a resulting trust for the settlor unless the settlor properly manifested a different intention (see § 430). b. Transfer to bona fide purchaser. A trust and an equitable charge are alike in that both the trustee and the holder of property subject to an equitable charge have the power to transfer the property free of the trust or equitable charge to a bona fide purchaser. Both the trustee and the holder of property subject to an equitable charge are liable in a proceeding in equity for selling the property to a bona fide purchaser, and thereby cutting off the equitable interest of the beneficiary or equitable encumbrancer, c. Fiduciary relation. There is a fiduciary relation between trustee and beneficiary but not between a holder of property subject to an equitable charge and the equitable encumbrancer. The holder of property subject to an equitable charge may properly transfer his interest in the property to a third person, provided that he makes the transfer subject to the charge or that he notifies the third person of the charge; it is a breach of trust for a trustee to transfer the trust property to a third person unless he is authorized to do so by the terms of the trust or by the court or under some circumstances by the beneficiaries (see § 171). . . . e. Statute of Limitations. The claim of an equitable encumbrancer against the holder of property subject to an equitable charge may be barred by a Statute of Limitations when the claim of a beneficiary against the trustee would not be so barred (see § 219). f. Manifestation of intention. Whether an equitable charge or a trust is created depends upon the manifestation of intention of the transferor. If the transferor manifests an intention to impose a duty upon the transferee to deal with the property for the benefit of a third person and to give to the third person the beneficial interest therein, a trust is created; if he manifests an intention not to impose such a duty upon the transferee, but to give to the transferee the beneficial interest therein, and to give a security interest to the third person, an equitable charge is created. Ordinarily where property is transferred to another ‘subject to the payment of’ a certain sum to a third person, or ‘paying’ such a sum, an equitable charge and not a trust is created, since the transferor does not thereby manifest an intention to impose a duty upon the transferee to deal with the property for the benefit of the third person. On the other hand, where property is transferred to another with a direction to pay to a third person a certain sum out of the property or its proceeds, or ‘subject to the payment from the property or its proceeds,’ or ‘paying from the property or its proceeds’ such sums, a trust and not an equitable charge is created, since the transferor thereby manifests an intention to impose a duty upon the transferee to deal with the property in part at least for the benefit of the third person. Illustrations: 4. A devises Blackacre to B ‘subject to the payment of’ debts of A or legacies. In the absence of evidence of a different intention, an equitable charge and not a trust is created. . . . g. If a transfer is made ‘upon condition’ and a condition is not thereby created (see § 11), it depends upon the manifestation of intention of the transferor whether a trust or an equitable charge is created. If the transferor manifests an intention to impose a duty upon the transferee to deal with the property for the benefit of a third person and to give the latter the beneficial interest therein, a trust is created; if he manifests an intention not to impose such a duty upon the transferee but merely to give the third person a security interest in the property, an equitable charge is created. Illustrations: 6. A devises Black-acre to B ‘upon condition’ that he pay certain debts of A or legacies. In the absence of evidence of a different intention, an equitable charge and not a trust is created. ’ ’

The original complaint herein was filed on February 23, 1934, and as amended charges, and the motion to dismiss admits, that the life tenant died August 28, 1912, and that the final instalment of appellant’s legacy should have been paid August 28, 1916. More than 17 years therefore elapsed before this suit was instituted. In 1932 Fred W. Coleman died. He had accepted the devise of the real estate as provided in his father’s will, but failed to pay appellee her legacy as directed by the same instrument. The payment of this legacy was made a charge on the real estate which the father devised to his son Fred. Fred, under the provisions of his father’s will, took a vested interest in this land. There are many expressions used by the courts of this and other States to the effect that a devisee of land so charged with the payment of money takes the land as a trustee. In our opinion, in the instant case, no direct, express trust in the true sense was created but rather an equitable lien or an implied trust to which statutes- of limitation or laches apply. In Bogert on Trusts and Trustees, vol. 1, page 156 the author says: “Frequently a testator charges land or personalty with the payment of legacies or debts. The devisee or legatee of the property affected is said to hold subject to a charge, and since the charge is primarily enforcible in chancery, it is often called an equitable charge. It is not uncommon to find courts and writers stating that such a charge is a trust and occasional holdings to that effect are found. Confusion also exists now and then from the opposite angle, and what is patently a trust is said to create a charge. ’ ’

In our opinion the decree appealed from is in harmony with the current trend of authority and should be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Hebel

license: Public Domain

text:
    Mable Bellchambers, Appellee, v. Robert Ebeling and Victor Ebeling, Appellants.
    Gen. No. 39,639.
    Opinion filed March 16, 1938.
    Rehearing denied April 1, 1938.

      Robertson, Crowe & Spence, of Chicago, for appellants ; Burt A. Crowe, of counsel.
    Finn & Miller, of Chicago, for appellee; Robert S. Cook, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This cause is in this court upon an appeal by the defendants from a judgment for $7,500 entered by the court upon a verdict of a jury after a remittitur was entered by the plaintiff of $2,500. The action was to recover damages for personal injuries alleged to have been sustained by the plaintiff on October 24, 1934, in an automobile accident which occurred on Keene avenue south of 145th street, southwest of Chicago, Illinois'.

The defendants, Robert Ebeling, aged 26 years, and his brother Victor Ebeling, aged 18, both lived with their mother and worked on her farm near Orland Park, southwest of Chicago, Illinois. Robert Ebeling received wages from and was supported by his mother, whereas Victor Ebeling was supported by his mother out of the proceeds of the sale of farm products.

On the night of October 24, 1934, a Mr. Buck came to the Ebeling home to buy eggs. Mrs. Ebeling, the mother of these two defendants, did not have a sufficient quantity of eg’gvs and asked Victor to go to his grandfather’s home, a distance of two or three miles, to get the additional number of eggs needed. Robert Ebeling, the brother, and one of the defendants, was the owner of a Chevrolet car, and was not at home at the time of the occurrence, but had previously given a general consent to Victor Ebeling his brother and co-defendant to drive the car when he wanted to. On the occasion in question the defendant Victor Ebeling took the Chevrolet car, drove to his grandfather’s, secured the eggs needed, and on his return was involved in the accident out of which this lawsuit arose.

The plaintiff Mable Bellchambers, with her husband and two children, was riding in a Whippet coach automobile from Fort William, Ontario to Nova Scotia. The accident happened about 7:00 o ’clock at night. At that time it was raining and very dark, and the weather was stormy. On Keene avenue, about a mile south of 145th street, Mr. Bellchambers, plaintiff’s husband, discovered that one of the tires of his automobile was getting soft. They were driving south on a two-lane concrete road. Mr. Bellchambers pulled to the right side of the pavement by driving the Whippet car off the pavement onto the dirt shoulder, the two left wheels, front and rear remaining on the concrete pavement so that the car was half on and half off the pavement. The shoulder was 11 or 12 feet wide.

The evidence as to whether or not the taillight on the Whippet coach was lighted at that time is conflicting. The defendant Victor Ebeling was driving south on the concrete pavement, when he arrived at the crest of one of three hills located on Keene avenue and came upon the Bellchambers’ car parked on the pavement, as we have indicated. There is evidence that Victor Ebeling was unable to turn to the left of the Bellchambers’ car because a northbound automobile was proceeding on Keene avenue, and turning to the left would have resulted in a head-on collision. The defendant Victor Ebeling turned to the right onto the shoulder to go around the parked car. At this time Mr. and Mrs. Bell-chambers had stepped out of their car. Mr. Bellchambers had got back into the front seat of the automobile, the front door of the coach was open, Mrs. Bellchambers standing near it. Ebeling’s car struck Mrs. Bell-chambers, knocking* her down and causing some damage to the door of the Whippet coach, and as a result of the accident Mrs. Bellehambers received the injuries complained of.

Both the plaintiff and her husband testified that as they walked to the back of the car to examine the tire they faced north and that they saw no car or traffic coming from north to south on the road and that they could see in that direction to 143rd street or beyond at least half a mile to a mile. They further testified they walked back to the door to get into the car, that they then faced south and could see in that direction for half a mile to a mile, and that neither saw any vehicle coming from that direction, and stated that no vehicle passed from the south to the north on the shoulder of the road as we have indicated.

The defendant, Victor Ebeling, testified that he was driving south behind the standing Whippet automobile; that he turned to the right onto the shoulder of the road and struck the plaintiff as she was getting into her car from the road shoulder and threw her against the right door which was open, and that the car operated by him ran past the Whippet coach and stopped when his front wheel went into the ditch.

The facts as shown by the testimony are in controversy, and the question as to the operation of the Ebeling car and the effort to pass the automobile parked half on and half off the pavement, was one for the jury to determine.

The first point called to our attention is that the trial court erred in permitting plaintiff’s counsel to interrogate the jurors on their voir dire examination.

The questions asked were as follows:

“Is anyone of you interested as a policyholder or otherwise in the Illinois Agricultural Mutual Insurance Company of Illinois?”

“Are any of your intimate friends or relatives either policyholders or connected with the Illinois Agricultural Mutual Insurance Company?”

When this case was called for trial, counsel for the plaintiff presented an affidavit to the court and to defendants’ counsel, verified by Robert S. Cook, one of the attorneys for the plaintiff, in which it was alleged that the plaintiff was injured on October 24, 1934, by reason of being struck by an automobile in possession and control of the defendants. Affiant further stated that he was informed and believed that the Illinois Agricultural Mutual Insurance Company of Illinois was interested in the result of the suit, that that company, prior to the time of the injury, had issued an insurance policy to Robert Ebeling covering the automobile in question and insured said Robert Ebeling and any person operating said automobile by and with his consent ag'ainst damages for injuries occasioned thereby; that the attorneys of record, Jenkins & Kirkpatrick represent the Illinois Agricultural Mutual Insurance Company and that Burt A. Crowe, who appears in court representing the defendants, is also representing said Illinois Agricultural Mutual Insurance Company and that the said Illinois Agricultural Mutual Insurance Company will be liable to pay the judgment if any is rendered in the above entitled canse. The two questions above quoted ivere asked of the jurors collectively.

During the selecting of the jury some jurors were excused upon examination and others took their places, and in each instance, of which there were several, plaintiff’s attorney inquired of the new jurors coming into the jury box as to the insurance feature above mentioned.

The defendants contend the court erred in permitting plaintiff’s counsel to interrogate the jurors on questions which were undoubtedly designed to and probably did inform the jury of the fact that the defendants were insured against damages by the Illinois Agricultural Mutual Insurance Company; that the questions were erroneous and call for a reversal of the judgment entered against both defendants in this case.

In Smithers v. Henriques, 287 Ill. App. 95, this court held that judgment in an action for personal injuries arising out of an automobile collision will not be set aside because plaintiff’s counsel questioned jurors on the voir dire as to their interest in a named insurance company, unless it appears from the entire record that a fair trial has not been had or that justice has not been done, since much of the examination of jurors must be left to the discretion of the trial judge.

"While the defendants have questioned the correctness of this ruling and have cited a number of authorities of courts of appeal that may seem to be in conflict with the ruling of this court, yet it does not appear from anything called to our attention that the right of the defendants to a fair trial was prejudiced by the asking of the questions indicated as being put to the jurors in examining them as to their qualification to act in this particular litigation.

An error which the defendants contend is a reversible one is that the court failed to appoint a guardian ad litem for the minor defendant, Victor Ebeling, and allowed the case to go to a verdict and judgment without the appointment of such guardian ad litem, it appearing from the evidence that the defendant, Victor Ebeling, was 18 years of age at the time of the trial, and therefore by such failure the court was without jurisdiction to enter the judgment here on appeal.

However, it does appear from the record that a guardian ad litem was appointed at the time the motion of the defendant for a new trial was being heard by the court. This was one of the errors called to the attention of the trial court by the defendants in their motion for a new trial. During the hearing upon this motion the attorney for the plaintiff is quoted as follows:

“Mr. Finn: We could not consent to the entry of a ¡judgment against both the minor and his brother unless a guardian ad litem is appointed for the minor, nunc pro tunc.”

It appears from a further quotation that the attorney for the plaintiff, Mr. Finn, stated:

“The court should at this time appoint a guardian ad litem before disposing of the motion because it has been brought to the court’s attention. I don’t think it is material whether it appears nunc pro tunc or appears now, but the court now has knowledge of the fact that the boy is a minor, and he ought to appoint a guardian ad litem now.” After which, at the request of plaintiff’s counsel, the court signed a certificate, which was prepared by plaintiff’s counsel, as follows:

“The court further certifies that nothing has been brought to the knowledge of the court which would tend to indicate that the defendant, Victor Ebeling*, has been deprived of any defense or any rights or privileges as a minor of which he could have taken advantage had a guardian ad litem been appointed at the time of the starting of the suit or any time thereafter, and no showing* has been made at any time by said defendants or their attorney, on behalf of said minor, Victor Ebeling, that he suffered the loss of or has been deprived of any such rights or privileges.”

In support of defendants’ contention that it was necessary that a guardian ad litem be appointed for the minor they have cited a number of cases in which the question of the appointment has been discussed, among* which are the following*: Peak v. Shasted, 21 Ill. 137; Kesler v. Penninger, 59 Ill. 134; Millard v. Marmon, 116 Ill. 649; White v. Kilmartin, 205 Ill. 525; Wettrick v. Martin, 181 Ill. App. 94; Thurston v. Tubbs, 250 Ill. 540; Paskewie v. East St. L. & S. Ry. Co., 281 Ill. 385; McCarthy v. Cain, 301 Ill. 534; Martin v. Starr, 255 Ill. App. 189, and Collins v. Hastings, 283 Ill. App. 304.

The general rule, which seems to be supported by these authorities, is that a judgment entered against a minor without the appointment of a guardian to defend the action is not void but voidable. In the case before us the boy at the time of the accident wás 18 years of age, and counsel for the plaintiff has answered by citing authorities from which it appears that where the minor suffered no hardship or loss of substantial rights, the failure to appoint a guardian ad litem would not justify the setting* aside of the judgment entered, and that in order to justify a reversal it must appear that substantial rights of the infant were affected by the failure to appoint a guardian ad litem.

Counsel for the plaintiff at the time defendants ’ motion for a new trial was heard seemed to be of the opinion that the appointment of a guardian ad litem was necessary, and the guardian was appointed, but it does not appear that he participated in the trial, nor that he advised the court of the interests of the infant and his rig’hts therein.

From the authorities cited, the rule in this State is that the appointment of a guardian ad litem is necessary, in order to protect the interests of a minor in the trial of a cause. To say that the substantial rights of the infant were protected would require the court to consider the case from the standpoint of the infant and determine whether by the failure of the appointment the court should reverse the judgment. It is the duty of the court to care for the interests of the defendant here, and apply the rule above stated, which is applicable equally well to all minors.

In the case of Collins v. Hastings, 283 Ill. App. 304, cited in the above list of cases, Buby Collins, administratrix, recovered a judgment against John Hastings, Sr., and Donald Hasting's. From the evidence it appears that Donald Hastings was 16 years of age. The court said:

“The record further discloses that no guardian ad litem was ever appointed by the trial court for the minor defendant Donald Hastings, and it is insisted by appellants in this court that it was error for the trial court to proceed with the trial of this cause without first appointing a guardian ad litem for this minor defendant. Counsel for appellee insist that inasmuch as this omission was not called to the attention of the trial court and was not raised in appellants’ motion for a new trial, it has not been properly preserved by appellants, but has been waived and cannot be raised for the first time in this court. . . .

“In 31 C. J. 1121, it is said that while in some jurisdictions it has been held that a judgment against a minor not represented by a guardian ad Utem is void and subject to collateral attack, without resort to an appeal, still the weight of authority is to the effect that where the court has otherwise jurisdiction, a judgment or decree rendered against an infant without the appointment of a guardian ad litem, while it may be erroneous and subject to be reversed, is at most only voidable and remains in full force and effect until reversed on appeal or error or set aside by direct proceedings and is not subject to collateral attack and that this rule applies to decrees in equity as well as judgments at law. 22 Cyc. 641 is to the same ■effect and in 22 Cyc. 636, it is said: ‘The record should affirmatively show that a guardian ad litem was appointed to appear and answer for infant parties, otherwise the judgment or decree will be reversed on error or appeal.’ ”

In discussing the case, which was an action to recover for the wrongful death of the plaintiff’s son, aged 18, who was killed when riding in the defendant’s car driven by his 16-year-old son, also a defendant, when it collided with a truck coming from the opposite direction while passing* another car on a hill on a rainy day, the court held that a verdict for the plaintiff must be reversed where it appeared on appeal that a guardian ad litem had not been appointed to protect the interests of the infant. In support of the theory of this court several of the cases that have been called to our ■ attention by the defendants in this action are cited with approval by the Appellate Court, and in this case the court further said:

“From these authorities and many others, it is apparent that the failure to appoint a guardian ad litem is an error which the minor could not waive in the trial court. It is therefore difficult to understand why he could be deemed to have waived it by failing to specify it as a ground in his motion for a new trial. Judgment against a defendant is not rendered by the court until after a ruling has been made on a motion for a new trial. To say that the judgment, which is rendered after the motion for a new trial is denied, is voidable in the trial court because a guardian ad litem was not appointed for a minor defendant, still is valid in an appellate court when the record of the trial court is being-reviewed upon a direct appeal would create an anomaly in the law, if in such appellate court, upon a direct appeal, the objection to the judgment could not be raised and the avoidable judgment avoided.”

So, when we come to consider the application of the reasoning of the Appellate Court to this case it would be erroneous to affirm the judgment. The error may be taken advantage of for the first time upon appeal to this court, and if it could be raised and was of such a serious nature as to justify a reversal, there certainly could be no complaint in this case for the reason that objection was made and included as one of the errors in the defendants’ motion for a new trial and should have been considered by the court in passing upon this motion.

It is next to be considered whether the guardian ad litem was appointed in apt time. We have stated before in this opinion that the guardian ad litem was appointed by the court upon the insistence of plaintiff’s counsel, but the appointment and the certificate of the court incorporated in this opinion were made just before the court overruled the defendants’ motion for a new trial. We are of the opinion that the appointment as made does not comply with the reasoning of the courts that an appointment should be made for the purpose of protecting the interests of the minor, and to say that this appointment meets the requirements is not justified by any rule or reasoning. The purpose of such an appointment, as we have stated before, is to protect the interests of the minor. From what we have said on this question, we believe the court erred in not granting a new trial on the ground urged by the defendants.

The question of an excessive verdict has been called to our attention, but in view of our conclusions it will not be necessary to consider it, for the reason that the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Denis E. Sullivan and Hall, JJ., concur.


text:
    Leonard Boltz, Appellant, v. Crawford and North Avenue’s Theatre Company, Appellee.
    Gen. No. 39,649.
    Opinion filed March 16, 1938.
    Rehearing denied April 1, 1938.

      Myer H. Gladstone and George F. Callaghan, both of Chicago, for appellant.
    Hoffman & Golder, of Chicago, for appellee; Calmon R. Golder, of counsel.
   Mr. Presiding Justice Hebel

delivered the- opinion of the court.

The plaintiff appeals from a judgment entered for the defendant in an action instituted by the plaintiff to recover damag'es. The defendant made a motion to dismiss the plaintiff’s amended complaint, which motion was sustained by the court, and the plaintiff electing to stand by his complaint, judgment was entered for the defendant.

Plaintiff’s amended complaint alleged that on March 24, 1936, the plaintiff entered into a written lease with the defendant in which the defendant leased and demised to the plaintiff certain premises at 1536-1542 North Pulaski road, Chicago, Illinois, together with the building thereon, from September 1, 1936, to June 10, 1946.

The rent provided to be paid on said lease by the lessee (plaintiff) was $50,900, payable at the rate of $400 per month for the first 12 months; $450 for the next 24 months, and $500 per month for the balance of the term. The rental was payable on the first day of each month in advance.

On March 26, 1936, the defendant notified the plaintiff that it would not perform any of the terms of the lease and would not permit the plaintiff to take possession of the premises on September 1,1936. Thereafter, on June 1, 1936, the plaintiff tendered the defendant $400, representing the rent due for the month beginning September 1, 1936, but the defendant refused to accept the money.

There is a provision in the lease for certain damages, which is in words and figures as follows:

“It is further covenanted and agreed by and between the parties hereto that in the event that at any time during the term of this lease the lessor shall desire to reopen the premises and operate or lease the same as a theatre and shall bona-fidely be about to enter into negotiations for the operation or leasing of the premises as a theatre, then and in such event, the lessor shall notify the lessee in writing when the lessee shall vacate the premises, but .said date shall not be less than ten days subsequent to the service of notice on the lessee by the lessor, and in the event the lessor shall give such written notice and the lessee shall comply therewith within the period stated in the notice (but not less than ten days), then the lessor shall pay to the lessee as liquidated damages the following sums: At any time during the first year of the term hereof, the sum of $30,000.00; during the second year of the term hereof, the sum of $27,000.00; and on the basis of a reduction in said damages of $3,000.00 for each year that the lessee shall have had possession hereunder, so that in the final year of the period for which these premises are leased hereunder, the sum of $3,000.00 would be paid. In the event the lessee shall fail to vacate under the terms hereof, within the time set by the notice given to the lessee by the lessor (never less than ten days), then the term of this lease shall cease and determine upon the date set in the said notice and the lessor shall have its remedy to oust the lessee from possession under the terms of the forcible detainer statute of the State of Illinois then applicable. ’ ’

The defendant thereafter filed a motion to dismiss plaintiff’s amended complaint, and as one of the reasons states the following:

“The portion of said alleged lease quoted in the amended complaint referring to liquidated damages under certain circumstances has no relation whatsoever to any of the facts set forth in the amended complaint, it affirmatively appearing from said amended complaint that the facts contemplated by the quoted portion of the said alleged lease never came into being. ’ ’ And further:

“Even though the liquidated damages referred to in the portion of the alleged lease quoted in the amended complaint did apply to the facts alleged in said amended complaint, the said liquidated damages would amount to penalty and would therefore be unenforeible unless the amended complaint contained allegations from which it could be made to appear that the plaintiff by reason of the breach by the defendant of the alleged lease suffered damages substantially equal to the liquidated damages stipulated.”

The court sustained the motion and dismissed plaintiff’s amended complaint.

The defendant does not dispute the fact that the plaintiff could maintain an action against the defendant for damages because of failure to give possession of the premises, and that this is the ruling in the case of Berrington v. Casey, 78 Ill. 317. In that case the court said:

“This, then, being a lease, and there being an implied covenant for possession and quiet enjoyment attaching to or growing out of it, and plaintiff in error having broken the covenant by leasing to and letting McLaughlin into possession, in exclusion of defendant in error, what is his remedy! May he sue and recover on this breach of covenant, or shall he bring his ejectment! We apprehend that he has his election of actions. He may undoubtedly sue for a breach of the implied contract for possession and quiet enjoyment, in assumpsit, as the instrument is not under seal.”

The question in the instant case is whether the plaintiff can recover damages for a breach of covenant in the lease from the defendant.

In the case of Green v. Williams, 45 Ill. 206, wherein a landlord executed a lease commencing in futuro, and, before the day arrived on which the term was to commence, without legal cause, leased the premises to other parties, and refused to deliver possession to the first lessee, the Supreme Court said upon the question of a breach of covenant for quiet possession: “Where the term is but for one year, as is generally the case, it would expire ordinarily before the lessee could obtain possession by legal means, and, if he is to be denied the recovery of damages, he is, in executing a lease not attended with the immediate delivery of possession, absolutely at the mercy of his lessor. Bound by his own covenants, he is dealing with a party who is not bound, at least so far as relates to legal redress. We cannot consent to a rule of damages so flagrantly unjust, and leading to such results. If the lessor, without a legal cause, refuses to deliver possession of the demised premises to the lessee, and is sued upon the covenants in his lease, the difference between the rent to be paid and the actual value of the premises at the time of the breach, must be considered as the natural and proximate damages. It was not necessary to state these damages specially in the declaration, as insisted by counsel for the defendant in error. They are recovered like damages for failure to deliver personal property according to a contract of sale, and, upon the same ground, the general damages presumed by the law, being the difference between the value of the article contracted for and the contract price. ’ ’

It must be admitted that the statement of claim in this action, aside from the question of the covenant incorporated in the statement providing for recovery of damages under certain conditions and circumstances, is sufficient to sustain a cause of action. The action is based upon the refusal of the landlord to deliver possession of the premises as provided for and agreed to by him in the lease, and while we do not agree with plaintiff in regard to the provision of the lease applying to the facts as alleged in the complaint, still it is to be noted that the covenant is set out in the statement of claim, and, from the language used, the cause of action is not based entirely upon this covenant. If we assume from the pleadings that the statement of claim, by its allegations, regardless of the provision relating to damages therein contained, is sufficient to maintain an action, then of course such general allegations are sufficient to sustain a judgment.

The defendant seeks to avoid responsibility for the signing of the lease and the alleged defaults upon the ground that suit for recovery of damages cannot be had for the reason that for default in payments the lease provides for recovery after the plaintiff is in possession.

If we apply the strict construction that recovery may be had only after the plaintiff is in possession, then the defendant would not be liable, but in our opinion the failure of the defendant to deliver possession of the premises described in the lease at the time the question was being considered, was a violation of the provisions and the conditions of the lease, for which the plaintiff has a remedy, and that is, to recover such damages as he may have suffered as the result of the failure of the defendant to deliver possession of the premises to the plaintiff.

It is apparent from the evidence in the record that the defendant repudiated the contract entered into by the parties for delivery of possession of the premises described in the lease. The plaintiff, when the lease was repudiated by the defendant, attempted to perform by tendering to the defendant the amount due for the succeeding month’s rent, which tender the defendant refused.

' The basis for the contention of the defendant seems to be that portion of the alleged lease which we have quoted in this opinion and which refers to liquidated damages- — and only upon that ground. That being* the position of the defendant, and our conclusion being that the plaintiff is entitled to damages suffered by failure of the defendant to deliver the premises so that they could be occupied by the plaintiff, aside from whatever provision may be in the lease regarding liquidated damages, we believe upon that ground and by reason of the fact that the plaintiff alleged an incorrect measure of damages, the court erred in sustaining motion of the defendant to strike.

This question cannot be raised by motion to strike upon the ground urged. A motion of the kind on which we are now passing under the Practice Act is to be considered as a demurrer, and being* general in its nature, the question of the allegation of an incorrect measure for recovery of damages cannot be reached by this motion, but should have been specially pointed out as a ground for striking the action then pending.

In the case of Beidler v. Sanitary District, 211 Ill. 628, in applying the rule contended for by the defendant where an incorrect measure for recovery of damages is sought, the court used this language:

“The defect in the declaration, arising from the fact that damages were claimed by an incorrect measure, is one which cannot be reached by a general demurrer, which is the only method by which this pleading was tested. This declaration states a good cause of action notwithstanding it does not adopt a correct measure for determining the amount of compensation to which the plaintiffs are entitled. ’ ’

For the reasons stated in this opinion the judgment is reversed and the cause remanded with directions that the court overrule defendant’s motion to dismiss the plaintiff’s amended complaint on the ground that it is insufficient in law to sustain a judgment, and that the parties, by leave of court, take such further steps as may be consistent with the views herein expressed.

Reversed and remanded with directions.

Denis E. Sullivan and Hall, JJ., concur.


text:
    Marcia Herzon, Appellant, v. Alexander Eisenstein, Appellee.
    Gen. No. 39,695.
    Opinion filed March 16, 1938.

      Aaron Soble, of Chicago, for appellant; Max Chill, of Chicago, of counsel.
    Harold L. Eisenstein, of Chicago, for appellee; Gustav E. Beer.lt and John F. Dippenderpfer, Jr., both of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The appeal by the plaintiff in this case is from a judgment entered in the municipal court of Chicago finding the issues against the plaintiff and for the defendant, and that the defendant have and recover from the plaintiff his costs, and that execution issue therefor.

The pleading upon which this judgment is based was a statement of claim filed on October 22, 1936, against the defendant Alexander Eisenstein, which alleged among other thing's the following:

That Marcia Herzon was the legal holder of Bond No. 518 in the principal amount of $500 and Bond No. 869 in the principal amount of $1,000. Each of the bonds was executed and delivered by the Devonshire Building Corporation, a corporation of Illinois, and both bonds matured on February 1, 1934. Interest coupons on each of the bonds become due on August 1, 1932, and subsequent thereto and up to the present time had not been paid. There was due as interest the sum of $472.50, which respective amounts of money the maker of said bonds failed and refused to pay, although often requested to make payment.

It is further alleged that the defendant, Alexander Eisenstein, executed a guaranty in writing, a copy of which was attached to the pleadings, whereby Alexander Eisenstein guaranteed the prompt payment of the bonds, and in signing the guaranty waived presentment for payment, notice of nonpayment, or dishonor, diligence in collection and all formalities required to charge Tn’m with liability. He further agreed that his liability as guarantor shall not in any way be impaired or affected by any renewal or extension which may be made with or without his knowledge or consent at the time of payment of all or of any of said bonds and interest coupons, or by any forbearance or delay in enforcing payment thereof and in enforcing the lien of the trust deed securing the same. The guaranty attached to the pleadings is in part as follows:

“Anything herein to the contrary notwithstanding, the liability of said parties of the first part hereunder shall extend and apply only to such interest on and principal of said bonds as fall due, or are declared due in accordance with the provisions of said bonds and/or deed of trust, prior to the completion of the apartment building, the construction of which is provided for in Section 2 of Article 1 of said deed of trust. Said building shall not be deemed completed, within the meaning of this paragraph, unless and until there shall be delivered to said Greenebaum Sons Investment Company a certificate signed by Alfred S. Alschuler, Architect, of Chicago, Illinois (or in the event of his death, absence from Chicago, Illinois, or other inability to act, then signed by E. N. Friedman, office associate of said Alschuler) certifying that said building has, in his judgment,' which shall be final, been fully completed. ’ ’

■ This guaranty contract was entered into on the 10th day of January, 1924, between Alexander Eisenstein and Samuel Isenstein, parties of the first part, and Greenebaum Sons‘. Investment Company,- a corporation,-party of, the second part. The contract provided that the Devonshire Building Corporation, a corporation organized under the laws of the State of Illinois, to evidence its indebtedness in the sum of $575;,000 for a loan to be made to it by Greenebaum Sons Investment Company, was to execute 930 bonds, all bearing even date with the contract, and being in the aggregate for the principal sum of $575,000, and to bear interest at the rate of six and one-half per cent (6%%) per annum from and after February 1, 1924. The contract further provided that in consideration of the making of the loan by Greenebaum Sons Investment Company, and the acceptance by Greenebaum Sons Investment Company, for investment or for resale, the parties of the first part jointly and severally guaranteed the prompt payment of said temporary bond and each and all of said definitive bonds and interest thereon, when due and at all times thereafter, as provided by that part of the contract upon which this action is based.

The cause was tried upon the pleadings and the amended affidavit of merits of the defendant. No question is raised as to the sufficiency of the complaint. The amended affidavit of merits is a general denial of the several allegations contained in the bill of complaint, except as to the execution of the guaranty, the subject of this litigation.

Upon the hearing of the cause before the court the plaintiff introduced in evidence the bonds heretofore described, also the interest coupons, and computed the amount due as $2,145; also introduced in evidence defendant’s answer to an interrogatory propounded by the plaintiff in which he admitted the execution of the original guaranty sued on in this cause.

There is evidence which was received by the court that Greenebaum Sons Investment Company had a staff of engineers who- inspected buildings during construction tp see that they were being built according to plans and specifications. Based upon such inspection, the company paid out funds from the proceeds of the loan to contractors and subcontractors on the. order of the architects. There is evidence that from these inspections the building was constructed in accordance with the plans and specifications as prepared by the architects for the building and the issuance by the architects of the final certificate, and that the building was completed approximately in the latter part of 1924.

■ It further appears from the evidence that two guaranties were given at the same time, one by the defendant to pay all bonds and coupons that matured up to the time the building was completed in October, 1924, and one by Dr. William W. Tarr, on all bonds and coupons which matured thereafter. It does not appear from any evidence introduced that the architect’s certificate provided for in the guaranty of the bonds in question was issued by Alfred S. Alschuler, although a charge of $550 was made for such certificate, but it does appear that the building was tenanted in September or October, 1924.

From the evidence before the court, it is apparent that the issue presented was whether the delivery of a certificate of completion signed by Alfred S. Alschuler, architect, or by B. N. Friedman, his office associate, in the absence or death of Alschuler, was necessary under the terms of the guaranty in order to release the guarantor from the obligation under the guaranty signed by him.

The plaintiff contends that the guarantor is liable in a suit at law on the guaranty executed simultaneously with the trust deed and the bonds secured thereby, and that a guaranty having been signed between the house of issue and the guarantor for the benefit of purchasers of the bonds, for which the loan was made, such bondholder has a right to maintain an action at law upon the guaranty.

The defendant answers that the completion clause or provision contained in the guaranty in question is for the benefit of the building owner or the mortgagee, depending upon the position of the contracting parties, and never for the benefit of the contractor or the guarantor. Therefore, such clause or provision can be waived by the conduct, actions and circumstances of the owner or mortg*ag*ee; that this is generally the case where all parties are satisfied that all of the terms and provisions of the agreements have been carried out and fully performed, nothing remaining to be performed but to procure a certificate; that the fact the owner of the building, Dr. W. W. Tarr, accepted it as completed and Grreenebaum Sons Investment Company, by its conduct and actions waived the requirements of the certificate, discharged the liability of the defendant on the guaranty, and points to the fact that the evidence indicates the building had been examined by the inspector employed by Grreenebaum Sons Investment Company, and occupied by tenants in September, 1924, and cites the case of Walsh v. North American Cold Storage Co., 260 Ill. 322, wherein the question arose of the necessity of obtaining an architect’s certificate when the work had been fully performed and accepted. The court said:

“Plaintiff in error further contends that the bridge company did not obtain a final certificate from the architect accepting the work, and insists that no recovery can be had of the balance due until such certificate is obtained. . . . Under the terms of the contract the issuance of the final certificate was necessary unless facts were proven which show a waiver of performance in that respect or that it was fraudulently refused by the architect. ...”

Counsel for the plaintiff answers that there are two distinct elements to consider: (1) the physical fact that the building has been completed and is inhabited and (2) that the guaranty ceases only on the completion of the building and the definition of completion is given and provided for by the very terms of the guaranty itself. It is immaterial for whose benefit a certificate was to have been obtained. The fact that Dr. W. W. Tarr as owner accepted the building as completed is immaterial. We are here relying upon a guaranty which by its terms is definite.

In the discussion of the question of liability of the parties to this contract, it is contended by the defendant that the guaranty is not negotiable and for this reason any defenses or equities that may exist or arise between the original parties to the contract prior to the intervention of rights of third parties or subsequent assignees, are proper and may be pleaded in defense to an action on the guaranty brought by subsequent transferees or assignees.

Upon this question the plaintiff concedes that the guaranty contract is not negotiable but by its terms is absolute, and that the guarantor can be released from liability only by complying with its terms. On the other hand, the plaintiff contends that there is no showing of compliance with the guaranty which would release the guarantor.

There is, however, a provision of the statute which has a material bearing upon this question now before us. Chapter 110, Ill. Rev. Stat. 1937, provides in ff 146, sec. 22 of the Practice Act:

“The assignee and owner of a nonnegotiable chose in action may sue thereon in his own name, and he shall in his pleading on oath, allege that he is the actual Iona fide owner thereof, and set forth how and when he acquired title; but such action shall be subject to any defense or set-off existing before notice of the assignment; . . .’’So, the question is a determining factor in the defense offered in the instant case. There is evidence that the plaintiff did not acquire possession of the bonds, through which she claims the right to recover by the terms of the guaranty, until 1933, and 1936. Greenebaum Sons Investment Company was originally the owner and holder of the bonds, being the party of the second part in the guaranty contract in question. The evidence introduced indicates that Greenebaum Sons Investment Company was the owner of the bonds in question on the date of the completion of the building and the acceptance of the same as completed; that these bonds were sold to customers of Greenebaum Sons Investment Company after the completion of the building, and the $1,000 bond was reacquired, through purchase, by Greenebaum Sons Investment Company a month prior to the institution of this action and sold to one Mandel H. Harris at a substantial discount.

The party of the second part, Greenebaum Sons Investment Company, was entitled to a certificate of completion to be issued by Alfred S. Alschuler, it being the right provided for by the guaranty contract, and at the time of the execution of this contract the Investment Company was in possession of the bonds issued as provided for by this same contract, and in consideration of the question we have pointed out, we are of the opinion that this right of the Investment Company could be waived and was waived by the acceptance of the architect’s certificate of completion issued by Mc-Nally and Quinn, the original architects employed in the construction of the building, and upon this certificate payments were made of the amounts due the contractor and the building accepted. This is further evidenced by the occupancy of the building by tenants in the fall of 1924, and so occupied ever since. "While it is true the owner of the bonds could exercise whatever rights this guaranty contract provided, still the contract not being negotiable, it would be subject to the defense by the guarantor of the waiver by the Investment Company of this certificate of completion when it accepted the construction of the building as complete and paid the money provided for by the certificate, and possession by the owner taken, and tenants in occupancy the latter part of 1924. The waiver having occurred and the tenants being in possession before these bonds were sold, this was a defense which the guarantor could urge and did urge upon the trial of the case. It is hardly necessary to cite any authorities upon the question of what rights the bondholders had under the terms of the guaranty contract and the facts as they appear in the record. In discussing the rights of assignees under the terms of a nonnegotiable instrument, the Supreme Court in the case of Hodson v. Eugene Glass Co., 156 Ill. 397, said:

“It is claimed, however, that the appellant Hodson is a bona fide holder for value of the note through an alleged assignment thereof to him by Fleming before maturity. So far as the chattel mortgage is concerned, the assignee of the note could take no other interest in the mortgage than that which was derived from the assignment of the note. The assignment of the note carries with it the mortgage as an incident to the principal debt, but in such case the assignee of the note takes only an equitable interest in the mortgage. The assignee of the mortgage takes it subject to the defenses which the mortgagor had against it in the hands of the mortgagee. Hodson had no other or greater rights in relation to the mortgage, and stood in no better position, than Fleming, the mortgagee.” See also, Miers v. Chas. H. Fuller Co., 167 Ill. App. 49. By analogy this applies to the litigation here in this court on appeal. The plaintiff seeks as assignee to recover under the terms of the guaranty contract executed by the defendant and, as admitted, this contract not being negotiable the plaintiff takes it subject to the defense which the guarantor had against it in the hands of the Greenebaum Sons Investment Company. ‘ In the words of the opinion in the Hodson case, the plaintiff had no other or greater rights in relation to the guaranty contract, and stood in no better position, than the Greenebaum Sons Investment Company, the party of the second part to this contract.

It is our conclusion that the court did not err in denying the right of the plaintiff to recover and in entering judgment for the defendant. For the reasons stated the judgment is affirmed.

Jlodgment affirmed.

Denis E. Sullivan and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    The People of the State of Illinois, Defendant in Error, v. Jules Rosenthal, Plaintiff in Error.
    Gen. No. 39,589.

      Opinion filed March 16, 1938.
    Rehearing denied April 1, 1938.
    Herbert M. Wetzel, of Chicago, for plaintiff in error; William J. Barley, of Chicago, of counsel. •
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

On April 7, 1937, an information was filed in the criminal court of Cook county, entitled, The People of the State of Illinois v. George Bruns, Archie Estep, Harold Stanyer, George Cameron, Martin Even, Frank DeLong, Jules Rosenthal, Joseph DeFrank, John L. Moore, Alvin Ernest, Leo Fahey and Morley Frank. The salient portions of the information are as follows:

“Now comes Thomas J. Courtney, State’s Attorney, in and for Cook County, Illinois, by Wilbert F. Crowley, Assistant State’s Attorney, and respectfully informs the Court as follows: That on the 25th day of January, 1937, there was pending in the Criminal Court of Cook County Indictment Numbered 36-1187 entitled The People of the State of Illinois v. Frank V. Zintak, wherein Frank V. Zintak was charged with the crime of larceny by embezzlement; that on the 25th day of January, 1937, said cause was duly and regularly called for trial and was placed on trial and prospective jurors were examined as to their qualifications to sit as jurors upon a determination of said cause; that upon the selection of said jury the said jurors were required to and did take an oath to well and truly try the issues joined in said cause and a true verdict render according to the law and the evidence in the case; that thereafter evidence was adduced in said cause on behalf of the People of the State of Illinois, and on behalf of said Frank V. Zintak, and the said hearing was adjourned from day to day after each court session until the 3rd day of February, 1937, when the said jury, after having received all of the evidence offered in said cause, and after having received the written instructions of the court, retired to consider their verdict, and did consider and did arrive at a verdict, which verdict, signed by the twelve jurors, was returned into open court, and by said verdict the defendant Frank V. Zintak, was found not guilty; that during the period from January 25, 1937, to and including February 3, 1937, the members of the jury selected for service in said cause and sworn and qualified as jurors upon the hearing thereof were as follows: George Bruns, Jules Rosenthal, Archie Estep, Joseph DeFrank, Harold Stanyer, John L. Moore, George Cameron, Alvin Ernest, Martin Even, Leo Fahey, Frank DeLong and Morley Frank, and that each and every of the aforesaid persons served as duly qualified jurors throughout the trial; that from the beginning of the trial-of said cause the trial judge ordered and directed that the jurors selected to serve during the hearing of said cause be kept together and not permitted to separate and that they be not allowed to make contact with outside persons or to speak to such outsiders during- the pendency of the proceedings in Court and the recesses thereof, and duly authorized deputy bailiffs and deputy sheriffs were ordered and assigned by the Court to care for and supervise the said jury throughout the trial of said cause and were by oath administered in the presence of such jury required to keep said jury together and required not to permit any one to speak to them; that each of the aforesaid jurors heard the oath and direction of the trial Judge, and each of the aforesaid jurors understood the said order and direction and knew that as such jurors they were required to remain together and not to separate and not to have any contact with the outside world; that pursuant to said order the Sheriff of Cook County provided special and separate living, sleeping and eating quarters for said jury during the pendency of said trial; that on divers dates throughout the hearing of said cause intoxicating liquors, beer and whiskey were brought to the jurors’ quarters after the court sessions; that on Saturday, January 30, 1937, in the forenoon, the twelve aforesaid jurors, accompanied by a deputy sheriff and bailiff, did enter two different public drinking places and did in each of said places drink three or four glasses of beer at the bar in each of said places in the presence of members of the public; that on January 30, 1937, at about the hour of 10:00 p. m. or thereafter, the said twelve jurors left their jury, quarters assigned to them and went to a public drinking place and tavern and there entered said public drinking place and tavern and in the presence of a great number of other persons engaged in drinking and dancing and mingled with the patrons there present generally and talked with them, and said jurors did separate and did not remain together, and said jurors so conducted themselves for a period of upwards of two hours until after the hour of midnight, when they returned to their jury quarters; that on Sunday, January 31, 1937, the aforesaid twelve jurors, in company with a deputy sheriff were by leave of court granted permission to go for a bus ride; that each of said jurors knew that such permission to go for a bus ride granted them did not authorize them to use said bus as a conveyance for making a round of taverns; that on said date the said jurors and said bailiff left the Administration Building at about the hour of 2:00 P. M. and entered a bus provided for them for said bus ride and were conveyed in said bus to five different and distinct taverns, in each of which said taverns the said jurors stood at the public bar in the presence of members of the public and drank beer, and in at least one of said places played slot machines located therein, and in several of said places did not remain together but separated, and in several of said places purchased quantities of beer and whiskey to carry back "with them to their jury quarters, and in one of said places engaged in noisy and disorderly conduct, while riding in said bus engaged in singing songs, and in several of said places announced themselves publicly as ‘Zintak jury’ and in one of said places switched off the electric lights, and in one of said places one juror took a bar stool and left the premises with same carried under his overcoat, and several of said jurors were intoxicated and under the influence of intoxicants which _ they had consumed during said trip, and said jurors, accompanied by said bailiff, returned to the Administration Building and returned to their quarters bringing with them quantities of beer and whisky, which said beer and whisky they consumed in their quarters; that each of said jurors well knew that their conduct in possessing and drinking intoxicants in their jury quarters and their conduct in attending upon public taverns and dancing with the patrons of said taverns and drinking intoxicants and commingling with the public patrons of said taverns, and in engaging in noisy and disorderly conduct on said bus ride, and in separating and failing to remain together, constituted improper and wrongful acts on their part and was a violation of their obligations and duties as jurors and amounted to a failure on their part to observe the order of the court; that said jurors, among themselves and well knowing that said conduct on their part was wrongful and improper, entered into an agreement and understanding to withhold knowledge of such conduct from the trial judge by remaining silent concerning their acts and doings in this connection; that one of the places visited on Sunday, January 31, 1937, was a tavern and public drinking-place owned and operated by one James Farmed, who had theretofore been a defendant under indictment in the Criminal Court of Cook County, and that in the said place the members of the jury were permitted to gamble in the presence of the public.

“Wherefore your informant respectfully moves that this Honorable court take cognizance of the act and conduct herein set forth of the said George Bruns, said Archie Estep, said Harold Stanyer, said George Cameron, said Martin Even, said Frank DeLong, said Jules Rosenthal, said Joseph DeFrank, said John L. Moore, said Alvin Ernest, said Leo Fahey and said Morley Frank, and that this Honorable Court take cognizance of the sworn testimony with reference thereto heretofore adduced before - this Honorable Court during* the judicial investigation as aforesaid, and that this Honorable Court enter an order herein requiring- the said George Bruns, the said Archie Estep, the said Harold Stanyer, the said George Cameron, the said Martin Even, the said Frank DeLong, the said Jules Rosenthal, the said Joseph DeFrank, the said John L. Moore, the said Alvin Ernest, the’ said Leo Fahey and the said Morley Frank to appear before this Honorable Court on such early date as this Court may determine and that said George Bruns, said Archie Estep, said Harold Stanyer, said George Cameron, said Martin Even, said Frank DeLong, said Jules Rosenthal, said Joseph DeFrank, said John L. Moore, said Alvin Ernest, said Leo Fahey, and said Morley Frank be required to file their written answers and show cause by such answers why they and each of them should not be held to be in contempt of this Honorable Court for their conduct as aforesaid; and that this Honorable Court will do any and all further things necessary in the premises and make such further orders and directions in this matter as the Court shall deem proper.

“(Signed) Thomas J. Courtney, State’s Attorney

(Signed) by Wilbert F. Crowley, Assistant State’s Attorney.”

Attached to and a part of the information is the following:

“Wilbert F. Crowley, being first duly sworn, on oath deposes and says, that he has read the above and foregoing Information by him subscribed, and states that upon information and belief the contents thereof are true in substance and in fact.

“(Signed) Wilbert F. Crowley

“Subscribed and sworn to before me this seventh day of April, A. D. 1937.

“(Signed) Thomas J. Bowler, Clerk of the Criminal Court. ’ ’

After a hearing, the court, on April 23,1937, entered the following finding and order as to the contemnor, Jules Rosenthal:

“In the Criminal Court of Cook County, Illinois.

Order and Judgment.

“This matter coming on to be heard upon the information and petition of Thomas J. Courtney, State’s Attorney of Cook County, Illinois, by Wilbert F. Crowley, Assistant State’s Attorney, and upon the interrogatories attached thereto and filed herein, and a rule to show cause pursuant thereto having been heretofore entered upon Jules Rosenthal, contemnor herein, to show cause, if any he has, why he should not be adjudged guilty, and punished for a contempt of this court; and the contemnor being further ruled and required to make answer to the information, petition and interrogatories herein filed; and the contemnor having made written answer under oath herein; and the contemnor having of his own motion asked leave of court to allow this testimony heretofore given in open court upon the judicial investigation of the within cause to stand as an additional answer and his answer to said interrogatories; and the court, having granted said motion, allows the said testimony of the said contemnor to stand as his additional answer and also as his answer to the said interrogatories; and the Court, now being fully advised in the premises, finds:

“1. That on the 25th day of January, A. D. 1937, there was pending in the Criminal Court of Cook County indictment numbered 36-1187 entitled ‘The People of the State of Illinois v. Frank V. Zintak, wherein Frank V. Zintak was charged with the crime of larceny by embezzlement, and the said cause numbered and entitled as aforesaid was duly and regularly assigued for trial to this court, and that the date of the commencement of said trial was set for the 25th day of January, A. D., 1937.

“2. That on the 25th day of January, A. D., 1937, issue having been joined therein, said cause numbered 36-1187 was duly and regularly placed on trial and prospective jurors were examined as to their qualifications to sit as jurors upon a determination of said cause.

“3. That a jury was selected in said cause, and that contemnor herein, was a member of said jury so selected and accepted to try said cause, and did with his fellow jurors take an oath to well and truly try the issues joined in said cause and a true verdict render according to the law and the evidence in the casé; that evidence was heard on behalf of both parties, and that the hearing of the cause was adjourned from day to day after each court session until the 3rd day of. February, A. D., 1937, when the said jury, after having received all the evidence offered in said cause and after having received the written instructions of the court, retired to consider their verdict, which said verdict, signed by the twelve jurors, was returned into , open court, and by which verdict the defendant, Frank V. Zintak, was found not guilty and cause numbered 36-1187 was then and there on said 3rd day of February, A. D., 1937, terminated.

“4. That Jules Eosenthal, the contemnor herein, was selected for service as a member of said jury in said cause, and was sworn and qualified as a juror therein, and served as such duly qualified juror throughout the trial of said cause.

“5. That from the beginning* of the trial of said cause this Court ordered and directed that the jurors selected to serve during* the hearing* of said cause be kept together and not permitted to separate, and that they be not allowed to make contact with outside persons or to speak to such outsiders, during the pendency of the proceeding’s in court and the recesses thereof, and duly authorized deputy bailiffs and deputy sheriffs were ordered and assigned by this court to care for and supervise the said jury throughout the period of the trial of said cause, and were by oath administered in the presence of such jury required to keep said jury together and required not to permit any one to speak to them; that each of the jurors, including Jules Rosenthal, contemnor herein, heard the direction given by this Court and heard the oath administered to the deputy sheriffs by the clerk of this court, and each of the said jurors, including Jules Rosenthal, contemnor herein, understood the said order and direction of this Court and knew that as jurors they were required to remain together and not to separate and not to have any contact with the outside world.

£ 6. That the Sheriff of Cook County provided special separate living, sleeping* and eating* quarters for said jury in the Administration Building* adjacent to the Criminal Court Building during* the pendency of said trial, and that these special quarters were so provided in order to render effective the order of this court requiring said jurors to be kept together and to be kept separate from the outside world.

££7. That the contemnor, Jules Rosenthal, while a member of said jury,* did on the forenoon of the 30th day of January, A. D., 1937, enter a tavern located in the vicinity of Twenty-sixth Street and California Avenue in Chicago, Illinois; that again on the forenoon of said date he did enter a second tavern located in the vicinity of Twenty-fourth street and California Avenue in Chicago, Illinois; that on the evening of the said date of January 30, 1937, after the hour of eight o ’clock p. m., he entered a tavern and dance hall located in the vicinity of Twenty-sixth Street and Kedzie Avenue in Chicago, Illinois; that the contemnor herein, on Sunday, the 31st day of January, A. D. 1937, at about the hour of 2:30 P. M. entered a tavern located in the vicinity of Twenty-second Street and Wolff Road in Cook County, Illinois; that on the same date thereafter he entered a tavern operated by one James Farmed located on Lake Street in the Village of Maywood, Cook County, Illinois; that thereafter on the same date he entered a tavern known as Brun’s Palm Garden in the Village of Forest Park, Cook County, Illinois; that thereafter on the same date he entered a tavern located at Laramie Avenue and Harrison Street, in Chicago, Illinois; and that thereafter on the same date he entered a tavern located at Keeler Avenue and Harrison Street in Chicago, Illinois.

“That each of the aforesaid taverns was a drinking place, and that in the aforesaid places the said contemnor herein, Jules Rosenthal, engaged in drinking alcoholic and intoxicating1 beverag'es; that in the aforesaid public taverns divers members of the public generally were present and the contemnor herein commingled in said places with the public generally; and that in the aforesaid places the contemnor herein separated from the other members of the jury.

“8- That on Saturday, the 30th day of January, A. D., 1937, while in the public tavern and dance hall located in the vicinity of Twenty-sixth Street and Kedzie Avenue in Chicago, Illinois, the said contemnor, Jules Rosenthal, did separate from other members of the jury and did engage in drinking alcoholic and intoxicating beverages while other jurors did engage in conversation with girls then and there present and unknown and did separate from certain other jurors who then and there did engage in dancing in said public dance hall with said girls, and did remain in said public tavern and dance hall for a period of several hours.

“9. That on Sunday, the 31st day of January, A. D., 1937, with the consent of the parties to said cause and by permission of this court, the said jury were allowed to go for a bus ride; that each of said jurors, including Jules Rosenthal, the contemnor herein, was present in open court and was informed that they were to be permitted to go for a bus ride to relieve their confinement; that each of said jurors, including the contemnor herein, knew that the permission given to them as a jury to go for a bus ride was limited to their use of the bus for riding purposes, and each well knew that they were not to use said bus as a conveyance to take them to public taverns and drinking places; that a bus was furnished said jurors for said bus ride on Sunday, January 31, 1937, and that said bus was used by said jurors as a conveyance to take them to public taverns and drinking places, and that said jury, including the contemnor herein, Jules Rosenthal, on said date, entered five different, separate and distinct public taverns and drinking places and in said places the contemnor herein with other members of said jury engaged in drinking alcoholic and intoxicating beverages, and the contemnor herein remained with said jury and a deputy bailiff in said places for periods of upwards of one-half hour in each place.

“10. That during the trial of said cause, while the said contemnor, Jules Rosenthal, and his fellow jurors were confined in the jurors’ quarters in the Administration Building, the said contemnor, on divers days and times, and knowing such conduct was improper, engaged in drinking alcoholic and intoxicating beverages.

“11. That this contemnor, Jules Rosenthal, knowing that said conduct was wrongful, did agree with his fellow jurors to withhold knowledge of said acts and conduct from this court, and that he did so withhold knowledge of said conduct from this court by maintaining silence as to said conduct.

“12. That all of the aforesaid acts and conduct of the contemnor tended to interfere with.the proceedings and to lessen the dignity of this court; that the contemnor, by such acts and conduct as a juror, displayed a complete lack of respect and regard for this court and interfered with and prejudiced the rights of the parties to said cause, and that the contemnor, by such conduct, was contemptuous of the dignity of the court and acted in a manner such as to degrade the law and the administration of justice; and that the said contemnor, Jules Rosenthal, failed to show cause why he should not be punished for a contempt of this Court for said acts and conduct, and that by reason of the said .acts and conduct the contemnor, Jules Rosenthal, is guilty of a contempt of this court.

“And the said contemnor, Jules Rosenthal, being now present in open court in his own proper person, and not saying anything further why the judgment of the court should not now be pronounced against him on the finding of guilty entered in this cause, the Court Finds that it has jurisdiction of the subject matter of this cause and of the parties hereto ;

“And It Is Therefore Considered Ordered and Adjudged By This Court That the said contemnor, Jules Rosenthal, is guilty of a contempt of this court on said finding of guilty, and he is hereby, because of the said contempt, committed to confinement in the county jail of Cook County, Illinois, for the term of three (3) days from and after the delivery of the body of said contemnor, Jules Rosenthal, to the Jailer of said County, and that the body of the said Jules Rosenthal be taken from the bar of the Court to the common jail of Cook County, and the Sheriff of Cook County is hereby commanded to take the body of the said Jules Rosenthal and confine said body in said County Jail of Cook County for the term of three (3) days from and after the delivery of the body of said Jules Rosenthal in safe and secure custody during said term as aforesaid, and that the said Jules Rosenthal be thereafter discharged, unless sooner discharged by due process of law.

“Enter: Benjamin P. Epstein, Judge of the Circuit Court of Cook County and Ex-officio Judge of the Criminal Court of Cook County.”

On the same date, a similar order and judgment was entered as to the contemnor Martin Even, except that his sentence was fixed at 5 days in the county jail.

The respondents, Jules Rosenthal and Martin Even, by separate writs of error, seek to have the orders and judgments reversed. The cases are here docketed as Nos. 39,589 and 39,590, respectively, and, by the agreement of the parties, the two causes have been consolidated for the hearing. In each case, the petition and orders constitute the entire record here.

The assignments of error are to the effect that the information does not comply with the requirements of section 33, article 6 of the Constitution of Illinois, in that it did not confer jurisdiction on the trial court to hear the cause and render judgment, that the affidavit attached to the information, being upon information and belief, is insufficient to confer jurisdiction on the court, that the facts charged tended to impair his competency as a juror to try the case of People v. Zintak, that the information fails to show that the contemnor came in contact with, or talked to any persons concerning the cause on trial, and that the, judgment of the court under this information, operates to deprive the respondents of their liberty without due process of law.

In People v. Severinghaus, 313 Ill. 456, plaintiff in error was found guilty of contempt by the criminal court of Cook county, and in that case, similar questions were raised as to the sufficiency of the information, and the court said:

“We are not, however, inclined to hold that such an information must have all the formalities of a criminal complaint filed against the defendant for a violation of the criminal law and under which he may be tried by a court and a jury to hold that it shall conclude ‘against the peace and dignity of the’ People of the State of Illinois, as provided in section 33 of article 6 of our constitution.”

Further, the record here fails to disclose that any question was raised as to the information by either of the respondents, but on the contrary, from the finding of the court, we are led to the conclusion that they each voluntarily proceeded to a hearing on the information as filed, without questioning it.

On this question, the court in People v. Severinghaus, supra, said: “We are further of the opinion, however, that the objection to the information . . . was made too late by the defendant, and that after pleading or answering the information he should not be allowed, on motion in arrest of judgment, to contend that the pleading of the State was not verified. It is against all rules of pleading to take advantage of such formal defect, or to permit the same to be done, after the defendant has answered the pleading and thus has confessed to its sufficiency in the matter of its allegations, where such deficiency relates merely to an informality in the matter of being verified.” We are of the opinion that the objections raised as to the sufficiency of the information filed here, are without merit.

The court’s finding indicates that after these jurors were qualified and sworn to try the Zintak case, they were definitely and particularly instructed by the court before whom that case was being’ tried, that they were not permitted to separate, and were not allowed to make contact with or speak to outsiders during the pendency of the proceeding. The courts’ finding also indicates that each of these jurors not only violated the court’s order in these respects, but that they did so in a very questionable manner. Such conduct on the part of jurors is not to be tolerated if justice is to prevail.

It is also insisted by the contemnors that in view of the fact that the Zintak case terminated on February 3, 1937, and that the information herein was not filed until April 23, 1937, that the court was without jurisdiction to enter the order. We find nothing in the record to indicate that these persons raised any such question before the court at the time the information here was on hearing, but whether it was raised or not, we are of the opinion that the point is without merit.

For the reasons hereinbefore stated, and in view of the state of the record, we are of the opinion that the judgment of the criminal court should be, and it is hereby affirmed.

Affirmed.

Hebel, P. J., and Denis E„ Sullivan, J., concur.