author: Mr. Presiding Justice Fulton

text:
    Miriam P. Espenschied, Appellee, v. Oswald K. Yeager, Appellant.
    Gen. No. 8,840.

      Opinion filed January 14, 1935.
    Gunn, Penwell & Lindley, of Danville, for appellant.
    Acton, Acton & Baldwin, of Danville, for appellee; W. M. Acton, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This is an action of assumpsit brought by the appellee against appellant for the balance due on a contract for the sale of 121 shares of stock in the Danville Lumber Company, and for the sum of $1,000 due appellee from said corporation. A demurrer to appellee’s declaration was overruled and a special plea filed by the appellant. Later a demurrer to the special plea was sustained and the appellant elected to stand by his plea. Thereupon judgment was entered by the court in favor of the plaintiff for the sum of $7,129, being, the balance due on the contract. From that judgment appellant prosecutes this appeal.

The declaration consisted of one count and alleged that appellee on March 5, 1930, entered into a contract with appellant wherein the parties agreed that if a certain other proposed agreement with one Don Wilson, a trustee, relating to the liquidation of the business of the Danville Lumber Company, was carried out, the appellant would purchase of the appellee 121 shares of stock in said company for the sum of $8,500 and would also pay appellee the sum of $1,000 for an indebtedness due her from the said Danville Lumber Company.

The declaration then alleges that prior to fhe execution of the proposed agreement with Don Wilson, trustee, referred to in the contract under date of March 5, 1930, the said Don Wilson, trustee, entered into a contract with appellant, appellee and Ralph E. Lantén, who were the owners of 242 out of a total of 243 shares of stock in the Danville Lumber Company, whereby it was provided that in consideration of the said Don Wilson, trustee, paying to the Danville Lumber Company a sum of money for the purchase of all of the equipment, lumber and building materials from the lumber business of said company, the other parties to the contract would as soon as was reasonably possible have the affairs of the Danville Lumber Company dissolved and wound up as provided by law, and before its dissolution would have it convey all the real estate owned by the company, subject to a certain covenant real to be specified in the liquidating contract.

The declaration further alleges that on March 7, 1930, the said Don Wilson, as trustee, entered into a contract with the Danville Lumber Company, agreeing to purchase all the equipment used by said company in carrying on its lumber business, except coal and coke, for the agreed purchase price of $6,000; that the agreement further provided that all of such equipment should be conveyed free and clear of all liens and incumbrances, and that the Danville Lumber Company should as soon as reasonably possible be dissolved; and that the real estate of said company should not, for a period of 15 years from that date be used for the sale of lumber, mill work or building materials and that before the dissolution of said company it would cause said real estate to be conveyed by a conveyance containing a covenant real running with the land, providing for restrictions on the use of said premises in the lumber business for the period of 15 years.

The declaration then alleged that the contract between Don Wilson, trustee, and the Danville Lumber Company had been fully executed; that the proposed liquidation of said business referred to in said agreement had been fully carried out and the stock of lumber and building materials of said company, except coal and coke duly transferred to and received by Don Wilson, trustee.

The declaration also alleges that at the time the contract sued upon was entered into, there were outstanding 243 shares of stock of the Danville Lumber Company ; that appellant was the owner of 111 shares and with the stock purchased from appellee under said contract would be the owner of more than two-thirds of the capital stock of said corporation; that on November 16,1932, appellee called a meeting of the stockholders of the corporation and urged the adoption of resolutions providing for the conveyance of the real estate as required by the contracts of March 6, 1930, and March 7, 1930, and also providing for the taking of steps to dissolve the Danville Lumber Company, but that appellant announced that he would not vote for such resolutions.

The declaration also avers that after the sale of the lumber and building materials to Don Wilson, trustee, the coal and coke and other property of the Danville Lumber Company was taken possession of by appellant and E. E. Lantén, and afterwards those two parties together with their wives formed a corporation, known as the Balph E. Lauten Company, for the purpose of buying and selling coal and the capital stock of said corporation was paid up by the payment to them of goods on hand and the real estate owned by the Danville Lumber Company.

The declaration concludes by alleging that the appellee has at all times been ready, willing and able to perform the contract on her part; that the stock had been tendered to appellant; that appellant had paid on said contract $3,740 but nothing further.

The special plea of appellant to the declaration stated substantially that the contract between the parties only became effective upon condition that the contracts of March 6 and March 7, 1930, were fully executed and carried out, and could only become in full force and effect when the liquidation and dissolution of the Dan-ville Lumber Company had been fully completed; that the appellant was under no obligation to pay the balance due the appellee until the Danville Lumber Company was fully liquidated and the corporation dissolved according to law and until the real estate of the •company had been conveyed containing the restrictions mentioned in the contract. The plea further stated ' that the liquidation of the company had not been carried out; that it was still indebted on a certain mortgage indebtedness in the sum of $8,000; that the Dan-ville Lumber Company had not been dissolved and wound up as provided by law; that all of the indebtedness of the said company which might become a lien . against any part of the property sold to the said Don ■ Wilson, trustee, had not been discharged and that therefore the conditions under which appellant was ■ to pay appellee had not been performed and that no liability thereunder had accrued to the appellee.

The main controversy in the case arises over the construction of the contract between the parties dated March 5, 1930, and the so-called liquidation contract of March 7, 1930.

The first three paragraphs of the contract sued upon are as follows:

“That the party of the first part is the owner of 121 shares of the common stock of the Danville Lumber Company, a Corporation, doing business at No. 436 North Gilbert Street, Danville, Illinois, and that the business of said Company is about to be liquidated.
, “That the party of the second part is desirous of ■acquiring the said 121 shares of such common stock now owned by the party of the first part, if the proposed agreement with Don Wilson, Trustee, for the liquidation of such business is carried out.
“Now, Therefore, it is agreed between the parties ■hereto, that if such proposed liquidation is carried out, ■the party of the second part will buy from the party of the first part and the party of the first part will sell to the party of the second part, the said 121 shares of the common stock of the Danville Lumber Company for the sum of $8500.00 payment to be made in the manner hereafter recited. ’ ’

The sixth paragraph is as follows:

‘ ‘ That on or before 60 days from this date the party of the second part will pay to the party of the first part not less than $3500.00 on the purchase price thereof ; providing, however, that the contract for the liquidation of such business with the said Don Wilson shall have been executed within such time.

The contract concluded with the following:

“It is further agreed between the parties hereto that when such payments shall be fully made, the party of the first part will transfer to the party of the second part, by good and valid assignment, the said 121 shares of the common stock of the Danville Lumber Company, free and clear of all liens of every kind and character.”

The principal provisions of the contract, dated March 7, 1930, between Don Wilson, trustee, party of the first part, and the Danville Lumber Company, party of the second part, are as follows:

1. Party of the second part agrees to sell and party of the first part agrees to purchase all of the trucks, machinery, motors, tools and other items of property of the Danville Lumber Company mentioned in a certain list submitted by the party of the second part to party of the first part.

2. Party of the first part agrees to buy and party of the second part to sell all lumber and building materials except coal and coke.

3. First party agrees to pay $6,000 upon the signing of the agreement, which money shall be deposited in a special account.

4. “Party of the second part shall have and conduct all proper meetings of its stockholders and directors, pass all resolutions and take all legal steps required by law, authorizing the sale of the property herein set forth, and the execution of this agreement, and that the said Danville Lumber Company, a corporation, shall as soon as reasonably possible be dissolved.”

5. That the equipment and merchandise be conveyed to the first party free and clear of all liens and incumbrances and in compliance with the Bulk Sales Law.

6. That the real estate of the second party will not for a period of 15 years be used by the second party either directly or indirectly for the sale of lumber, mill work building material etc.

7. That before the dissolution of the party of the second part, its real estate shall be conveyed by a deed containing a covenant real running with the land which covenant is set forth in the contract. _

8. “The party of the second part further agrees that all of its indebtedness which might become a lien against any of the property herein agreed to be sold to the party of the first part shall be fully paid and discharged. ’ ’

It is the contention of appellant that the contract sued upon is conditioned upon the proposed agreement with Don Wilson, trustee, for the liquidation of the business of the Danville Lumber Company being carried out, which means a dissolution of the corporation, the payment of its indebtedness, the conveyance of the real estate containing the covenant real running with the land, before he is obligated to pay the balance due upon the purchase of stock from appellee.

Appellee contends that the contract sued upon was conditioned only upon the lumber business of the corporation being liquidated in accordance with a proposed agreement with Don Wilson, trustee, and not conditioned upon the final dissolution of the corporation. It is a well established rule of construction that in construing a written contract the court will endeavor to place itself in the position of the contracting parties, and read the instrument in the light of the circumstances surrounding them, at the time it was made and of the objects which they then evidently had in view so that the court may understand the language used in the sense intended by the parties using it. Close v. Browne, 230 Ill. 228. Also that courts will give effect to all written instruments according to the ordinary popular meaning of the terms -employed when nothing appears to show they were used in a different sense and no unreasonable or absurd consequences will result from doing so. Stettauer v. Hamlin, 97 Ill. 312. The rule is elementary that in the construction of a contract it must be found from the contract itself, if that can be done, what the true-intention of the parties was at the time they entered into it and in doing this every part of the contract must be considered and given effect, if possible. No part will be rejected unless it is necessary so to do in order to prevent a defeat of the purposes sought by the parties to the contract. McLean County Coal Co. v. Bloomington, 234 Ill. 90. In construing a written instrument the great object is to arrive at the intention of the parties. Peoria & Pekin Union Ry. Co. v. Tamplin, 156 Ill. 285. The entire instrument, whether on one piece of paper or on several, and all writings on the same subject, when referred to and made a part of said contract - should be considered in' interpreting each particular part. Sexton v. City of Chicago, 107 Ill. 323. Greater regard must be had to the clear intent of the contract than any particular words used therein. Torrence v. Shedd, 156 Ill. 194.

Applying these tests to the contract sued upon in this case we cannot believe that it was the intent of the parties that the sale of the stock and payment of the amount specified was conditioned upon the final dissolution and the winding up of the affairs of the Dan-ville Lumber Company. The contracts themselves and the allegations of the pleadings disclose that appellant desired to purchase the stock of appellee provided Don Wilson, trustee, took over the lumber and building material business of the Danville Lumber Company. This ivas subsequently done, all the provisions of the Bulk Sales Law were complied with, the title to the property sold to Wilson, trustee, was delivered to him clear of all liens and incumbrances, and payment made therefor. We believe it is a strained construction of the contract to say that the contract between appellant and appellee was not to be in force and effect until the corporation was finally dissolved, or until the' mortgage indebtedness on the real estate was fully paid and the conveyance made containing the restriction required by the contract.

It is our judgment that the circuit court of Vermilion county properly sustained appellee’s demurrer to the special plea of the appellant, and that the judgment of that court should be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    George C. Hoch and H. A. Samuell, Appellants, v. V. P. Turner et al., Appellees.
    Gen. No. 8,848.

      Opinion filed January 14, 1935.
    Joseph E. Barnes, of Havana, and William A. Potts, of Pekin, for appellants.
    Scott W. Lucas and Lyman Lacey, Jr., both of Havana, for appellees.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This is an appeal prosecuted from a decree of the circuit court of Mason county dismissing the original bill filed by appellants on behalf of themselves and all other creditors of the Farmers State Bank of Easton, and dismissing the amended and supplemental bill filed by said appellants and eleven additional complainants upon the motion of appellees who were intervening petitioners in the cause.

The State auditor of public accounts, upon the request of the directors, took over the affairs of the Farmers State Bank of Easton, Illinois, on the 22nd day of February, 1933. On February 23rd the bill was filed by appellants on behalf of themselves and all other creditors of the bank seeking to enforce payment of the liability of the stockholders of said bank for the benefit of the creditors. At the time the bill was filed the solicitor for appellants instructed the clerk not to issue a summons in the cause until the clerk was further notified by the said solicitor. The bill was directed to the May Term, 1933 of said court. No summons was issued returnable to the May Term and during, that term the case was continued to the November Term, 1933 of said court. On November 22,1933, at the direction of appellants, a summons was issued against all of the defendants in the original bill returnable to the February Term, 1934, of said court and the summons was placed in the hands of the sheriff of Mason county. Before any service was had the sheriff was notified to withhold the service of summons until he received further instructions from appellants’ solicitor. On November 24, 1933, the appellees filed a similar suit on behalf of themselves and other creditors of said bank to enforce collection of the stockholders’ liability against the same defendants. On November 27, 1933, the appellees filed two special pleas to appellants’ bill of complaint which were later on December 7, 1933, withdrawn. On the same date appellees filed a petition for leave to intervene in this suit in their own right and as amici curiae, and for leave to file an intervening petition to dismiss the suit. On November 27, 1933, leave was granted appellants to file a supplemental bill and to make new parties defendant and on December 7, 1933, appellants filed their amended and supplemental bill making additional parties defendant.

On December 16, 1933, appellants filed a demurrer to the petition to intervene by appellees, which was on the same date overruled, and the appellees given leave to file an intervening petition and motion to dismiss the bill, which was filed December 21,1933, and afterwards extended to the amended and supplemental bill.

The motion to dismiss set forth the facts above stated and alleged that appellees were substantial depositors and creditors of the bank and not indebted to it in any manner. It charged that appellants were not creditors of the bank with authority to institute this suit because their indebtedness to the bank far exceeded any deposit standing in their names at the time of closing; that there was a fraudulent arrangement or understanding between appellants and the officers and stockholders of the bank not to prosecute the suit and because of such fraudulent acts and the delay in issuing and serving summons no suit was really pending.

Further motions and cross motions were filed and disposed of but the answer to the motion to dismiss was filed by appellants on January 25, 1934. The answer specifically denies the charges of fraud made in the petition and motion to dismiss or that appellants were not bona fide creditors of the bank; admits that solicitor for appellants instructed the circuit clerk at the time the original bill was filed not to issue any summons as prayed for in the bill until notified by such solicitor; further admits that no summons was issued returnable to the May Term, 1933, or November Term, 1933, of said court, but that on November 22, 1933, a summons was issued by the clerk and placed in the hands of the sheriff of Mason county to serve; and further admits that the sheriff was notified by the solicitor for appellants not to serve said summons until the sheriff received further instructions from such solicitor. The answer avers that the reason for withholding summons and service of process on the defendants was to give such solicitor an opportunity to secure written entries of appearance from the defendants named in the bill and thus save costs to the appellants. A number of entries of appearance from defendants were secured and filed by appellants but the earliest ones were dated December 6, 1933, and none filed before the day following.

Oti February 5, 1934, appellees filed a motion to dismiss the bill upon the admissions made in the answer. The final hearing on this motion was held on February 26,1934, and the court entered a decree dismissing the amended and supplemental bill at appellants ’ costs, from which decree appellants have prosecuted this appeal.

It is the contention of the appellants that they were authorized to commence and prosecute this suit and having filed the original bill the suit became a pending cause, and the appellees had no legal right to file an intervening petition for the purpose of procuring the dismissal of the suit filed by appellants. The statute provides that the mode of commencing a suit in chancery shall be by filing a bill with the clerk of the proper court, setting forth the nature of the complaint. Par. 4, ch. 22, Cahill’s R. S. 1933 (App’x). Upon the filing of every bill, the clerk of the court shall thereupon issue a summons. Par. 8, ch. 22, Cahill’s R. S. 1933 (App’x). While suit was properly instituted in this ease by appellants their conduct in ordering the clerk not to issue summons until two terms of court had passed and then when summons was finally issued, to order the sheriff: not to serve the same raises a serious question as to whether or not the action is really brought and pending in good faith. Suits brought to enforce the constitutional and statutory liability of stockholders of a closed bank are of such a character as to require prompt and immediate action in the collection of the stock liability lest escape in payment be effected through death, change in conditions or other means sometimes availed of by debtors who seek to avoid payment. Where one or two creditors bring suit on behalf of themselves and of all other creditors the responsibility falls upon them to diligently and reasonably follow the known, well established steps for prosecuting the suit.

In this case two alleged creditors, one with a deposit of $83.13 and the other with a deposit of $36.44, at the time of the closing of the bank and both so indebted to the bank that it is doubtful if either could éver receive a dividend from the liquidation of its assets, sought to bring this suit on behalf of themselves and all other creditors. The party bringing a suit has ordinarily the right to control and prosecute it to its final termination. This is always the case where the suit is brought by a complainant in his own right, and not merely as the trustee and representative of another. Fairbanks v. Farwell, 141 Ill. 354. It may well be doubted whether the mere filing of a bill in chancery, of itself, without the issuing or service of process, is 'sufficient to arrest the running of the statute. Fairbanks v. Farwell, supra.

It is our judgment that the deliberate delay in prosecuting this suit caused by the instructions to the clerk not to issue any summons and then when finally issued to the sheriff not to serve the same, worked a suspension of the suit and left it open to the other creditors to file a suit to collect the stockholders ’ liability. Appellees were large creditors and were interested in the suit. The court properly permitted them to file their intervening petition and upon the facts admitted by appellants in their answer to the motion to dismiss was Avarranted in entering a decree dismissing the original and the amended and supplemental bills for Avant of equity. The decree of the circuit court is thereforé affirmed.

Affirmed.


author: Mr. Justice Allaben

text:
    Janet Widdowson and John Henry Widdowson, by Edna Widdowson, Their Guardian and Next Friend, Appellees, v. Anna Widdowson et al., Appellant.
    Gen. No. 8,833.
    Opinion filed January 14, 1935.
    Frank A. Whiteside, of Carrollton, and Gillespie, Burke & Gillespie, of Springfield, for appellant.
    Coyle & McDonald, of Carrollton, for appellees.
   Mr. Justice Allaben

delivered the opinion of the court.

On August 24, 1932, plaintiff, on behalf of her two minor children, filed a bill and later an amended bill to construe the will of John Milton Widdowson who died December 30, 1931. The amended bill asks the court to construe clauses Third, Seventh and Eighth of the will hereinafter set forth, so that one-half of the property mentioned in clause Third should vest in her two minor children, and that the said two minor children, being grandchildren of the deceased, should take a one-sixth part per capita of the property described in clause Seventh, and one-sixth per capita of the property described in clause Eighth. After hearing, the court entered a decree finding against the plaintiff as to clause Third, but construing clauses Seventh and Eighth in accord with the plea of the plaintiff. From this decree defendant, Anna Widdowson, prosecutes this appeal to this courts

The will in question is in the words and figures as follows, to wit:

“I, John Milton Widdowson, being of sound mind and memory, and under no constraint whatever, do hereby make, constitute the following as my last will and testament, revoking all former wills by me made.
“First: It is my desire that all my just debts and funeral expenses be fully paid.
‘ Second. I give, devise and bequeath absolutely to my son James all of my lumber business, and every thing pertaining thereto, including the real estate on which my lumber business is located, all moneys in bank, and accounts pertaining to such lumber business, my building situated on the Public Square in the City of Carrollton,-in the County of G-reene and State of Illinois, and one IL S. Liberty Bond of the denomination of One Thousand Dollars.
“Third. To my son Bryan, I give, devise and bequeath my farm in Section Twenty-four (24), Township Ten (10), North, Range Twelve (12), West of the Third Principal Meridian, consisting of Eighty-six (86) acres, more or less, in the County of Greene and State of Illinois, he to. have and hold the same for and during his natural life and at his death the same to be sold and the proceeds thereof divided equally between my son James and my daughters Ruth and Anna and my two grandchildren Janette and John Henry Widdowson, and I also give absolutely to my son Bryan one U. S. Liberty bond of the denomination of One Thousand Dollars.
“Fourth. To my daughter Ruth I give, devise and bequeath absolutely in fee simple my farm at or Hear Kahm Station, on the Chicago & Alton Railroad, consisting of one hundred seven acres, more or less, and one U. S. Liberty Bond of the denomination of One Thousand Dollars.
“Fifth. ■ I give, devise and bequeath absolutely and in fee simple all my farm in Section Sixteen (16), Township Ten (10) Range Twelve (12) just west of the City of Carrollton, in the County of Greene in the State of Illinois, to my daughter Anna and one U. S. Liberty Bond of the denomination of One Thousand Dollars.
“Sixth. I give, devise and bequeath to my two grandchildren Janette Widdowson and John Henry Widdowson all of my Bank Stock of every kind and description, they to share equally, and to each one of my said grandchildren a U. S. Liberty Bond of the denomination of One Thousand Dollars, each.
“Seventh. I give, devise and bequeath to my son Bryan and to my daughters Ruth and Anna Widdowson my residence in the City of Carrollton, each of them to hold their interest therein so long as he or she remains single and when all are married then the same to be sold and the proceeds thereof to be divided equally between all of my heirs, including my said two grandchildren, they to share and share alike equally.
“Eighth. It is my desire that all the residue of my personal estate to be divided equally between all of my heirs, including my aforesaid two grandchildren, they to share and share alike.
“Ninth. I hereby appoint and constitute my son James Widdowson my sole executor of this my last will and testament and I desire that he be not required to give bond.
“Signed, Sealed and Published on this the 9th day of August, A. D., 1926.
“John Milton Widdowson, (Seal)”

There was the usual attestation clause in proper form.

The will was admitted to probate in February, 1932, and the executor named in the will qualified. The deceased left him surviving, as his heirs at law, the following: Sons: James Widdowson and Bryan Widdowson ; daughters: Anna Widdowson and Ruth Widdowson Reinders; grandchildren: Janette Widdowson and John Henry Widdowson, children of a predeceased son, John H. Widdowson, whose widow is the plaintiff in this case, on behalf of her children.

The court in its decree found that by the third clause' of the will the testator intended the defendant Bryan Widdowson was to take a life estate in the real estate mentioned in that clause, and after his death the real estate to be sold and the proceeds to be divided equally among the plaintiffs Janette Widdowson and John Henry Widdowson and the defendants, James Widdowson, Ruth Widdowson Reinders, and Anna Widdowson. No appeal has been taken from this finding. It is, therefore, not necessary to give any consideration to it in this opinion.

The decree finds that the testator intended by the seventh clause that the defendants Bryan Widdowson, Ruth Widdowson Reinders and Anna Widdowson were to take as tenants in common a life estate in the property therein mentioned, each to hold his or' her life estate, so long as he or she remained single; that after all were married, or in the event they did not all marry, then after the death of the last remaining single the property was to be" sold, the proceeds thereof divided among all the testator’s heirs per capita; that is, the proceeds were to be divided into six equal parts, one of which should go to each of the four defendants, and one of which should go to each of the two plaintiffs, and in case any of them died before distribution, the share of the one so dead was to go to such deceased’s heirs, legatees or assigns. It was ordered, adjudged and decreed, that the seventh clause be so construed.

The court found the testator meant and intended by the eighth clause that the residue of the personal estate should be divided equally among all the testator’s heirs per capita; that is, that the residue should be divided into six equal parts, one of which parts was to go- to each of the two plaintiffs and one to go to each of the four defendants, and thus ordered, adjudged and decreed, that said clause should be so construed.

The only question at issue was whether the court erred in holding that the two grandchildren, plaintiffs, take per capita and not per stirpes under the seventh and eighth clauses of the will. The construction of these two clauses in this will is to determine the intention of the testator as gathered from the words, expressions, and context from the four corners of the will itself. Howe v. Hodge, 152 Ill. 252; Morrison v. Tyler, 266 Ill. 308; Himmel v. Himmel, 294 Ill. 557. The words which are used in a will are presumed to be used in their usual and popular meaning, and where words are used which have a definite and well understood technical meaning that it will be presumed the testator intended to use them in that sense unless it can. clearly be determined otherwise from the context. Dollander v. Dhaemers, 297 Ill. 274; Kelley v. Vigas, 112 Ill. 242.

Many cases have been cited by both plaintiffs and defendants as to the rule applicable where the word “heirs” is used in a will. Defendants in particular have cited numerous cases which hold in effect that there is no presumption that the testator intended to disregard the law as it is contained in the Statute of Descent, Cahill’s St. ch. 39, in any part unless the terms of the will are such as to make that intention manifest, and also that all ambiguities will be resolved in favor of the heirs at law or the next of kin to the testator. With these authorities we are in full accord. However, considering clause Third, and the construction placed upon it by the trial court, of which neither party is making complaint, there is shown a direct intent that the plaintiffs, Janette and John Henry Widdowson, grandchildren, were to share equally, that is, per capita, with James, son, and Ruth and Anna, daughters of testator. Directing our attention to clause Seventh we find the following wording: “. . . when all are married then the same to be sold and the proceeds thereof to be divided equally between all of my heirs, including my said two grand children, they to share and share alike equally.” This is a very simple sentence, and one that requires practically no construction. It involves no proposition of law, but a simple rule of grammar. It is capable of only one construction, and that is that the pronoun “they” applies to the antecedent “heirs” and not to the words “grand children” from which it is separated by a comma. That being true it is apparent that the testator meant that all his heirs, including his two grandchildren, were to share and share alike equally the property mentioned in clause Seventh — in other words, were to share per capita in the property mentioned in clause Seventh, and not per stirpes. The wording of clause Eighth, in regard to the division of the property mentioned is the same as the wording in clause Seventh and must, of course, receive the same construction. In other words, it was the intent of the testator that the residue of the estate was to be divided per capita and not per stirpes. Not only is this a construction which in the opinion of this court gives effect to the intention of the testator as expressed in these clauses but also follows the intention of the testator as first indicated in clause Third, mentioned above. It is further to be noted that the grandchildren are specifically referred to in clause Seventh as, “my said two grand children” and in clause Eighth, as “including my aforesaid two grand children.” Having named them specifically in clause Third, and referring to them, as above indicated, in clauses Seventh and Eighth, it ivas unnecessary' to repeat the names.

Further, the reference by name to the grandchildren does not create a devise to a class, as would be the case if the testator had made a devise to' his heirs simpliciter without anything further. If such a devise simpliciter had been made it would then be necessary to refer to the Statute of Descent, Cahill’s St. ch. '39, to determine the persons to take the proportions in which they were to take. This rule obviously does not apply here because no reference to the statute is necessary to determine what persons were intended by the devise of the testator. The paramount rule to be followed in construing a will is to determine the testator’s intention and follow it as ascertained, unless contrary to some settled rules of law. There are no rules of law contrary to the intention expressed in the ivill in the instant case, and the intention should, therefore, be controlling in construing these clauses in dispute. Dollander v. Dhaemers, supra; Clark v. Todd, 310 Ill. 361; Carlin v. Helm, 331 Ill. 213.

We believe that the circuit court placed the proper construction on the clauses in dispute and, therefore, the decree of the trial court is affirmed.

Decree affirmed.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. The H. N. Schuyler State Bank. City of Pana, Appellant, v. Nora Molz et al., Appellees. Missouri Rolling Mill Corporation of St. Louis, Missouri, Appellee, v. City of Pana, Appellant. The Millikin National Bank of Decatur et al., Appellees.
    Gen. No. 8,839.
    Opinion filed January 14, 1935.
    J. H. Fornoff, City Attorney, L. G-. Griffith and Charles W. Fornoff, all of Pana, for appellant.

      MoMillen, McMillen & Carman, of Decatur, for appellee Millikin Nat. Bank.
   Mr. Justice Allaben

delivered the opinion of the court.

This case arose out of the insolvency of The H. N. Schuyler State Bank of Pana, Illinois, which was closed by the auditor of public accounts on February 6, 1930, and for which bank a receiver was appointed on April 21, 1930. At the time the bank closed the City of Pana had on deposit a total sum of $47,672.62, composed of a general fund deposit of $18,992.82, and a special assessment fund deposit in the amount of $28,679.80. After the closing of the bank the receiver held claims against the City of Pana totaling $33,-604.43.

When the Schuyler Bank closed Millikin National Bank of Decatur, Illinois, held as assignee of the Schuyler Bank four anticipation warrants of the City of Pana, issued in October, 1929, against taxes levied and to be collected in 1930, totaling $6,995, one of the anticipation warrants being against a water fund, a second against a fire fund, a third against a police fund, and the fourth against a salary fund. The Millikin Bank also held, as assignee of the Schuyler Bank, an evidence of indebtedness of the City of Pana to one W. F. Sell, in the amount of $6,211.39, issued by the City of Pana in October of 1929, for work done by Sell on the city reservoirs, assigned by Sell to the Schuyler Bank, which in turn assigned to H. N. Schuyler, who assigned it to the Millikin Bank. The Millikin Bank made a demand on the City of Pana for the payment of the warrant, and the Sell claim, for a total amount of $13,206.39, which the City of Pana refused to pay. On July 21, 1930, the City of Pana filed a claim against the receiver of the Schuyler Bank, for $47,672.63, the total of its deposits at the time the bank closed, and thereafter filed its amended intervening petition in the circuit court of Christian county, praying that all of the claims held by the Schuyler Bank against the City of Pana, and the anticipation warrants and the Sell certificate held by the Millikin Bank, be offset against the total deposit of the City of Pana in the Schuyler Bank. The petition questioned the validity of the anticipation warrants held by the Millikin Bank, and asked that their validity be determined by the court. The receiver of the Schuyler Bank answered that he was willing to offset the amount of the Schuyler Bank claims against the City of Pana which he alleg-ed to be $36,758.50 against the claim of the city for its deposits, and that a general claim would be allowed for such balance as remained due, but the receiver denied that the Schuyler Bank had any interest in the anticipation warrants or the Sell certificate, held by the Millikin Bank, and further denied that these claims could be made a proper offset in the adjudication of the city’s claim against the Schuyler Bank.

The Millikin Bank answered the intervening petition of the City of Pana averring the validity of the tax anticipation warrants held by it, and of the Sell claim, and denying the right of the City of Pana to the relief prayed for in its intervening petition.

The Missouri Bolling Mill Corporation filed an intervening petition on May 18, 1931, claiming a portion of the moneys due Sell, by reason of a lien under section 23 of the Lien Act, Cahill’s St. ch. 82, ¶ 23, for material furnished Sell and used by him in doing the work for the city. Upon a hearing the circuit court held: That the total of the claim of the Schuyler Bank held by it at the time it closed, or acquired thereafter, should be set off against the total funds on deposit in the Schuyler Bank by the City of Pana, and that a general claim should be. allowed the City of Pana for the balance; that the validity of the anticipation warrants, and the Sell, claim, held by the Millikin Bank, were not proper matters to be determined in the action and dismissed the Millikin National Bank as a party, to the proceedings, at the cost of the City of Pana.

The court also dismissed the intervening petition of the Missouri Rolling Mill Corporation at its cost. From this decree an appeal was taken to this court by the City of Pana.

The two questions involved in this case are: First: Whether the anticipation warrants held by the Millikin Bank are just and lawful claims against the City of Pana, and the second question: Whether the anticipation warrants and the Sell certificate, the validity of which last item is not in question in this appeal, are proper offsets of the City of Pana against the total funds which it had on deposit in the Schuyler Bank, and whether such offset is a proper matter to be adjudicated in this controversy. It is contended by appellant that the warrants held by the Millikin Bank were void because they were issued without any power to issue them for the particular purposes which caused their issue; that the statute authorizing the issuance of the warrants in anticipation of taxes levied (Cahill’s St. ch. 146a, ¶ 2; ch. 146½, sec. 2, Smith-Hurd’s Statutes 1933) provides that they may be issued to meet the ordinary and necessary expenses of the city, and building purposes, and for no other purpose; that the warrants in question were issued to refund other warrants, and that the city was not authorized to issue warrants to pay miscellaneous items of indebtedness, but such warrants could be issued solely for the purposes expressed in the statute. However, the resolution of the city council of October 14, 1929, which is in evidence in this case expressly found that the funds of the City of Pana for water, fire, police and salary, had become exhausted, and that it was necessary in order to conduct the' current business of .the city that funds therefor-be- procured; that warrants in anticipation of 1929 taxes be issued, and such warrants were described in the resolution. This court has no fault to find with the case of People v. Coolley, 146 Ill. App. 113, cited by the appellant for the proposition that warrants cannot be issued to pay for miscellaneous items of indebtedness, and attention is drawn to the fact that in the case cited the court held that the orders issued in anticipation of taxes were unauthorized because they were to be in payment of claims as they should be allowed, and consequently were not for definite indebtedness existing at the time, which it was necessary to meet, and the court said, in its opinion, “but when the board shall have determined that it has insufficient money on hand to defray necessary expenses of the county, it then becomes the duty of the county board to provide a fund for that purpose by issuing orders.” Obviously in this case appellant cannot successfully contend that the items for which these warrants were issued were expenses which do not ordinarily arise in the administration of city government, or that they were miscellaneous expenses, and further we do not see how the argument of appellant that the.funds ill the accounts for which these warrants were issued were not actually exhausted on the last day of September, 1929, would lead to the conclusion that the council for the City of Pana, two weeks later when the resolution was adopted, may not have reasonably decided that such warrants were necessary for the current business of the city, as is indicated in their action of passing the resolution in question. If full faith and credit is not to be given to the resolutions of the city council in such matters, and such action construed favorably to the validity of warrants issued pursuant thereto, it • would be virtually impossible for any city to issue and dispose of tax anticipation warrants without the greatest difficulty.

Appellant further contends that the City of Pana was without power to issue the warrants in question because they were issued to refund existing warrants, and relies upon the case of Coquard v. Village of Oquawka, 192 Ill. 355. In that case, in which the court held that the power of municipal corporations to issue negotiable bonds having the incidents of commercial paper, to take the place of a former issue cannot be implied merely from the power originally conferred authorizing such former issue, the court said: “It is not meant to be said that this provision of the constitution” (referring to Section 12, article 9, providing for the creation of municipal indebtedness) “was violated by the issue of the bonds in question, but only that it is thus indicated that it is against the policy of our laws that municipal corporations should, at their pleasure or convenience, exercise the mere implied power of issuing and putting upon the market negotiable securities, even thoug’h they are issued to refund an outstanding indebtedness of unquestioned valid-' ity.” And the court further said: “But it so happened that no statute authorizing any such refunding and issuing of refunding bonds applied to the town or city of Oquawka, and we are of the opinion that such power cannot be implied merely from its ordinary powers as a municipal corporation, or from its power conferred by statute to issue the original bonds.”

It appears to us that the warrants issued in this case were not issued under any “implied” authority, but under the express terms of the statute,.and for an express purpose, and being once so issued it does not seem reasonable to argue that the city, having received value for the old warrants, should not have a right to substitute new warrants for the old ones, and thus reimburse the holders' who had given value, for- the old warrants. "

Appellant indicates in his brief that the warrants held by the Millikin Bank were issued for' the purpose of refunding the old warrants referred to in the testimony in this case, but reference to the City of Pana’s Exhibits 6-A to 6-J, inclusive, and the Millildn Bank’s Exhibits 2 to 5, inclusive, clearly indicates that what happened was that the City of Pana had outstanding at the time of the substitution of the warrants a $500 warrant for the fire fund, reduced to $240, five $1,000 warrants against the water fund, and one for $500 reduced to $455, two warrants issued against the police fund in the amount of $500 each, one of which had been reduced to $360, and one warrant against salary fund which had been reduced to $240.. These amounts tally exactly with the warrants which were issued on October 15, 1930, and as shown by the Millikin Bank’s Exhibits 2 to 5, inclusive, and the new warrants expressly say on their face that they were issued against taxes levied in the year 1929, and therefore, obviously were not given for the purpose of “refunding” the old warrants but were in fact the same obligation as already existed in a different form, and it therefore follows that if the City of Pana originally had the authority to create this indebtedness which we have held that it did, then we see nothing that would militate against the authority of the city to change the form of their indebtedness at the request of the holder thereof so that as, in this instance, instead of holding six warrants against the water fund, totaling $5,455, there would be one warrant in the same amount.

Reference has been made in appellant’s brief to the fact that the validity of the old warrants had been questioned. Examination of the City of Pana Exhibits 6-A to 6-J, inclusive, shows that the date indicated for which the taxes were levied on which the warrants were based was not completely filled out, and it might be reasonably assumed from this fact alone that the Schuyler Bank requested the issuance of new warrants that were not imperfect as to form, and pursuant to such request that the City of Pana did make the substitution to correct the imperfections in the old warrants, and we do not think that the fact, if such it be, that the old warrants were imperfect in form, would in any way prevent the City of Pana from issuing new ones in proper form to take the place of the old ones. We are, therefore, impressed with the argument of counsel for appellee, wherein he says, “If cash had been received for the new warrants, and placed in the city treasury, and then used to reimburse the parties holding the old warrants, no objection could have been made. Certainly in equity it should be no defense against the new warrants that were exchanged for the old ones, instead of having been exchanged for cash, and the cash used to reimburse the holders of the old ones.”

We now turn to the second question at issue which is the availability of the warrant held by the Millikin Bank, and owed by the City of Pana as offsets against the deposits of the city in the Schuyler Bank. If these warrants were negotiable instruments, and the Millikin Bank were the holder thereof in due course, then the argument of appellant that the city would have a right to a set-off because it had received no notice of the assignment before the closing of the Schuyler Bank would fail. However, Cahill’s St. ch. 98, ¶ 21 (section 21, ch. 28, Smith-Hurd Revised Statutes of Illinois), describing a negotiable instrument, provides, among others, that one characteristic of such an instrument must be that it be payable on demand, or at a fixed or determinable future time. These warrants were not so payable, and since it has been held that whether an instrument is negotiable must be determined from the face of the instrument alone, Atlas Coal & Coke Co. v. Kentucky River Coal Mining Co., 253 Ill. App. 475, and further since special assessment bonds payable to bearer but out of a special fund have been held to be non-negotiable, Drouineau v. First Nat. Bank of Marion, 244 Ill. App. 251, and since qt>viously these warrants have the characteristic of being payable ont of a special fund, they are not negotiable. Therefore,, under the doctrine in Barker v. Barth, 192 Ill. 460, cited by appellant, which held that where a non-negotiable note was assigned, and the maker, without notice of such assignment, purchased the negotiable note of the payee, he was entitled in an action by the payee to the use of the assignee to set off the full amount of the payee’s note, we are constrained to hold that the City of Pana had a right to set off the claim represented by the tax warrants held by the Millildn Bank against its general deposit in the Schuyler Bank, because there is nothing in the record to show, and no contention made, that the City of Pana had notice of the assignment of the warrants in question by the Schuyler Bank to the Millildn Bank, and further because such notice is specifically denied by the City of Pana.

Appellee contends that such a set-off cannot be made for the reason that the special assessment funds constituting part of the deposits in the Schuyler Bank cannot be used to pay the general expenses of the city directly or by set-off. All of the cases cited by appellee to sustain this proposition appear to be cases where the city has attempted to use one fund for another purpose. We do not feel that these cases are in point, but it must be borne in mind by the closing of the Schuyler Bank all-of the funds which the City of Pana had on deposit, including the special assessment fund, were removed beyond its control, and as pointed out in the case of People v. Joliet Trust & Savings Bank, 275 Ill. App. 138, the status of the parties interested has changed and the character of their relation altered. The city was prevented from holding the funds for and paying them over to the special assessment bond holders, and the City of Pana should, in equity, have the full benefit of all of its deposits against the insolvent bank.

We do not think that the special assessment funds constituted the type of trust account referred to in the cases cited in the brief of appellee. . The word “trust” in the case at bar is merely descriptio personae, that is, the designations used of the different funds being for the purpose of identification, and to prevent their being mixed while the bank was solvent, and able to pay its obligations.

We, therefore, believe that the trial court was incorrect in holding (1) that the validity of the anticipation warrants and the Sell claim were not proper matters to be determined in this action, and (2) that the set-off to which the City of Pana should be entitled should be limited to the amount of the claims held only by the Schuyler Bank at the time it closed. We further believe that the petition of the Missouri Rolling-Mill Corporation should not have been dismissed, but that the validity of its claim should have been determined in the proceeding's in the trial court as well.

This cause is, therefore, reversed and remanded for new trial with directions to the trial court upon a rehearing to allow the warrants held by the Millikin Bank to be offset against the deposits of the City of Pana in the Schuyler Bank, and with the further direction that the trial court consider the intervening petition of the Missouri Rolling Mill Corporation, and determine what, if any, interest that company has in the evidence of indebtedness of the City of Pana issued to W. P. Sell, and held by the Millikin Bank; and upon the determination of that question to allow to the City of Pana credit for all over the amount of interest the Rolling Mill may have in said evidence of indebtedness, if any, as an offset to the City of Pana against its deposits in the Schuyler Bank.

Reversed and remanded with directions.


text:
    Joe Lattuada, as Administrator of the Estate of Lelia Mulgrew, Deceased, Appellant, v. Michael Mulgrew, as Administrator of the Estate of James Mulgrew, Deceased, Appellee.
    Gen. No. 8,843.
    Opinion filed January 14, 1935.

      John R. Dean, of Danville, for appellant.
    Y. W. McIntire, of Danville, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

Plaintiff, as administrator of the estate of Delia Mulgrew, deceased, sued defendant Michael Mulgrew, as administrator of the estate of James Mulgrew, deceased, on account of an automobile accident which occurred on October 10, 1932. Plaintiff filed a declaration in two counts which alleged that on October 10, 1932, defendant’s intestate, James Mulgrew, being then the owner of a passenger car, was driving same on what is known as Route 1 between Danville and Westville, Illinois; that the plaintiff’s intestate Delia Mulgrew was riding in said automobile as an invited passenger or guest, and had nothing whatever" to do with the driving, control or direction of the operation of the machine, or over the driver; that" it was the duty of defendant’s intestate to so manage and control his automobile as not to wilfully or wantonly injure plaintiff’s intestate, but that defendant’s intestate violated his duty in that he so wilfully and wantonly operated and ran his automobile as to have a collision whereby, and on account of said wilful, reckless and wanton conduct of defendant’s intestate, plaintiff’s intestate sustained bodily injuries from which she did die on the same day, leaving her surviving her father, Michael Mulgrew, her brother, John Mulgrew, and her sister, Teressa Mulgrew, who were by her death deprived of her support.. The second count is similar to the first, containing more particular averments as to the happening of the accident.

To this declaration the defendant filed, first, plea of the general issue, and three special pleas. To the first of these three special pleas plaintiff filed a replication, and to the second and third demurrers. Defendant filed a motion to strike plaintiff’s replication to the first plea. Upon hearing the court struck plaintiff’s replication to defendant’s first special plea, and overruled the demurrer to the second and third pleas. Plaintiff elected to stand on his demurrer, and on January 13, 1934, the court entered a judgment that the plaintiff take nothing and the defendant go hence without day. It is from this judgment that plaintiff appeals.

The defendant seeks to have this appeal dismissed because he says the order appealed from was not a final order, or if it was a final order, was appealed from more than 90 days from the entry of the order. He further insists that the judgment appealed from was entered on November 7, 1933, and that, therefore, any appeal would not be subject to review under the provisions of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 129 et seq. An inspection of the record shows that the final judgment was entered on January 13, 1934. An inspection of that order shows that “plaintiff elects to abide by said demurrer.’’ Nothing is said concerning the court’s action in striking plaintiff’s replication to defendant’s first special plea, which was stricken on November 7, 1933. Therefore, in this appeal this court will direct its attention solely to the question whether or not the court properly overruled plaintiff’s demurrer to defendants’ second and third special pleas. The second special plea is as follows :'

“And for a further plea in this behalf, the defendant says that the plaintiff ought not to have or maintain his aforesaid action against him, the defendant, because, he says, that he is one of the heirs and next .of kin of the said Delia Mulgrew, deceased, and that he would share any judgment recovered against the estate of James Mulgrew, deceased, and that if this suit be maintained, he would in effect be suing himself and be both plaintiff and defendant in the same suit; and this the defendant is ready to verify; wherefore the defendant prays judgment whether the plaintiff ought to have or maintain his aforesaid action against him. ’ ’ This plea, stripped of its verbiage, sets up that the defendant, Michael Mulgrew, who is sued as the administrator of the estate of James Mulgrew, deceased, is also one of the heirs at law and next of kin of plaintiff’s decedent Lelia Mulgrew. These facts are admitted by the demurrer, and the fact that Michael Mulgrew was one of the heirs at law was alleged in the declaration. This results in the anomalous situation of one who is interested in the recovery of the plaintiff and who would benefit by the recovery of the plaintiff being the defendant. In other words, he would be in effect suing himself, and be both plaintiff and defendant in the same suit. A person cannot be both plaintiff and defendant in a suit at law, though the party appears on one side in his personal and on the other in his official character. McElhanon v. McElhanon, 63 Ill. 457; Oliver v. Oliver, 178 Ill. 527; Bennett v. Bennett, 252 Ill. App. 333. Whatever may be the rule in other jurisdictions, or in this jurisdiction, as to suits in chancery or other proceedings, the rule in suits at law is as set forth above. Therefore, the trial court properly overruled the demurrer to the second plea.

The third plea is as follows:

“And for a further plea in this behalf, the defendant says that the plaintiff ought not to have or maintain his aforesaid action against him, the defendant, because, he says, that James Mulgrew and Lelia Mulgrew both died as a result of the injuries sustained in the accident in the declaration mentioned; that Lelia Mulgrew died first and James Mulgrew survived her; that the defendant, as the administrator of the estate of said James Mulgrew, deceased, is one of the class avIio would be entitled to share in any judgment recov-ered in this suit, and the alleged wrongful act of said James Mulgrew would bar any recovery in this case; and this the defendant is ready to verify; wherefore he prays judgment whether the plaintiff ought to have or maintain his aforesaid action against him.” This plea in substance sets up that James Mulgrew and Delia Mulgrew both died as a result of the injuries sustained in the accident complained of, but that Delia Mulgrew died first and that James survived her, and that the defendant Michael Mulgrew, as administrator of the estate of James Mulgrew, deceased, stands as the representative of one of the class who would be entitled to share in any judgment recovered in this, snit, and that the alleged wrongful act of James Mulgrew, deceased, who was an heir at law of plaintiff’s intestate, would bar any recovery in this case.

The facts well pleaded in this plea are admitted by the demurrer.

It is alleged in the declaration that the death of Delia Mulgrew was caused by the wilful and wanton conduct of James Mulgrew in improperly driving his automobile. If this be true then the alleged wrongful act of James Mulgrew would bar any recovery in this case. To hold otherwise would permit James Mulgrew, or his estate in case of his death, to profit by the wilful and wanton conduct of James Mulgrew. This will not be permitted. The doctrine of the negligence of one of the next of kin being a bar to the entire action is fully and thoroughly discussed in the case of Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, which we consider decisive in this case. Plaintiff’s attempts to distinguish this case and take it out from under the rule in the Hazel case seem to us unsuccessful. If a decedent’s administrator could not successfully maintain a cause of action on account of the contributory negligence of one of the next of kin, we do not see how the later death of that next of lcin can make his cause of action any Letter. The demurrer to the third special plea was properly overruled.

The demurrer to the second and third pleas being properly overruled, and the plaintiff electing* to stand by his demurrers, the trial court properly entered judgment for the defendant, and that judgment is hereby affirmed.

Judgment affirmed.


text:
    The Second National Bank of Danville, Appellant, v. The Fidelity and Casualty Company of New York, Appellee.
    Gen. No. 8,847.
    Opinion filed January 14, 1935.

      Gunn, Penwell & Lindley, of Danville, for appellant.
    H. L. Howard, of Chicago, and Dobbins & Dobbins, of Champaign, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

This was an action in assumpsit brought by The Second National Bank of Danville, Illinois, against The Fidelity and Casualty Company of New York for recovery on a bond issued by the defendant for the amount of a robbery loss. The plaintiff’s amended declaration upon which this suit was tried consisted of two counts; the first count charges that on July 21, 1930, the defendant was engaged in the business of executing and delivering fidelity and casualty bonds, insuring against robbery, theft and hold-up of property in transit within the United States; that on said date for a consideration of $750 the defendant issued a policy to The Second National Bank of Danville, in the amount of $25,000, for losses sustained through robbery, larceny, theft or hold-up while the property of the plaintiff was in transit in the United States within 50 miles of its main office, and requiring notice to be given of such loss. The plaintiff further alleges that on December 22, 1932, while the bond was still in force, by extension agreement, the plaintiff had in its immediate employment at its office one O. P. Clark, who was directed by the plaintiff to transport to The First National Bank of Georgetown, $9,350 of plaintiff’s money; and that while so transporting the money the said O. P. Clark was robbed of $9,001; that notice was given in accordance with the terms of the bond, and payment was refused by the defendant.

The second count of the declaration charges substantially the same facts as the first, except the bond sued upon and its extensions were set out in haec verba.

To this declaration defendant filed plea of the general issue, and other special pleas to which special pleas a demurrer was sustained, and the case was tried on the general issue.

The evidence shows that on July 21, 1930, the defendant executed and delivered to the plaintiff a banker’s blanket bond, which by subsequent renewals continued in force until July 21, 1933. - Inasmuch as there is no controversy as to most of the provisions of the bond, the same will not be set out, but only those portions which are in dispute. The evidence further shows that the plaintiff was located at Danville, Illinois, and that the United States Fuel Company, one of its customers, operated a coal mine at Georgetown, Illinois, some 10 miles distant from Danville; that the United States Fuel Company issued payroll checks twice á month, and plaintiff by contract with the fuel company undertook the service of providing facilities for cashing the payroll checks at Georgetown. To provide this service plaintiff entered into a contract with the First National Bank of Georgetown whereby in consideration of the payment of a service charge of 10 cents per $100 for checks cashed through the Georgetown bank, a special trust fund account in the First National Bank of Georgetown for the payment of fuel company’s checks was set up and the contract specifically stated that the title to said trust fund was to remain in The Second National Bank of Danville, and the balance of any moneys deposited after .the payment of checks on pay days was to be returned. From the time this contract was entered into on the 18th day of March, A. D., 1932, until shortly before December 22, 1932, the plaintiff caused currency to cover the payroll to be shipped by United States mail to the Georgetown bank. Finally the post office department refused to carry the currency, and O. P. Clark, president of The First National Bank of Georgetown, and a friend and acquaintance of plaintiff bank, sometime during August, 1932, had a talk with Mr. McClenathan and Mr. Douglas, president and cashier respectively of The Second National Bank of Danville. Mr. Clark told Mr. McClenathan that he had received notice from the post master that after a few weeks they would not ship the money, and Mr. McClenathan said: “Well, if they do that we will have to make an arrangement to send the cash from here down there.” The evidence also shows that a month or six weeks later Clark had another conversation Avith Mr. McClenathan and Mr. Douglas, in which Clark said that the post master had notified him that they would not carry the money any longer; that Mc-Clenathan said: “We will have to send it down from here. Can’t you come up and get the money? Haven’t you an officer who can come Avith you?” Clark then said that he thought the chief of police Avould come with him. The result of these conversations Avas an understanding by Avhich Clark was to furnish his automobile and gasoline and a guard, and call at plaintiff’s bank for the currency at such time or times as he might see fit, for Avhich services no arrangement Avas made for him to receive any compensation from plaintiff bank, for the use of his car, for the guard, or for his OAvn services, for the transportation of the money. Pursuant to this arrangement Clark made a number of trips carrying currency, and on December 22, 1932, obtained from the plaintiff bank the sum of $9,350 in currency, signed a receipt for the money, in his oavh name, and Avith a guard, named Evans, after attending to some of his OAvn business in Danville, proceeded by automobile to take the money to Georgetown to be deposited in the special trust fund account.

On the way to Georgetown robbers shot Clark and the guard, and escaped with $9,001. On the day of the robbery Mr. Douglas notified the local agent of the defendant company of the loss, and after a refusal of payment by defendant company, this suit Avas brought. Plaintiff’s statement, brief and argument states that the case was tried by the court with a jury, but the original record (p. 88) shows that trial by a jury was waived. It is further very apparent that such was the fact. The court filed a written opinion and holding the defendant not liable, and entered a judgment in its favor in bar of the action, and for costs. From this order an appeal was taken by the plaintiff to this court.

The only question for determination by this court is whether the money which was stolen was “in the custody of any of the employees ... of the insured” at the time of the robbery, or, in other words, was O. P. Clark an employee of the insured under the terms of the bond furnished by the defendant. Section 6 of this bond defines the word “employees” as follows:

“The word ‘employees,’ as used herein, shall be deemed to mean officers, clerks and other persons in the immediate employ of the insured during the currency of this bond, at its office or offices covered hereunder, but not to mean any person or persons employed by any other banking institution which the insured shall have taken over, unless the underwriter shall have given its written consent thereto, nor to mean any persons, firms, or corporations furnishing transportation, trucking, messenger service, or the like, or any person or persons employed thereby. ’ ’

It is obvious from the testimony in this case that plaintiff did not have any agreement with Clark to stand any of the expense incurred by him in transporting the money; it did not pay the guard who accompanied him, and it did not give Clark any compensation for anything that he did personally. He was not held to account by plaintiff bank for the manner in which he transported the funds, or the time he called for them or delivered them to the Georgetown bank, nor was he accountable for taking any particular route or handling the cash in any particular denominations or containers. In other words, there were no directions given by the plaintiff bank to Clark in any way respecting the transportation of the funds. It must be borne in mind that O. P. Clark was the president of the Georgetown bank, and was so employed throughout this entire period; and further that the Georgetown bank not only profited under, its contract with The Second National Bank of Danville, to the extent of 10 cents per $100 for checks cashed by it but also benefited by this transfer of currency through increased business in its bank, and by being able every two weeks to replenish its currency supply, all of which should make it anxious to continue its arrangement to cash fuel company checks and overcome the difficulties of transferring the money which arose by the refusal of the post office department to carry it by mail. In making a new arrangement to carry the money Clark obviously was working for the best interests of the Georgetown bank, and when he supplied his automobile, a guard, and his own. time, to transport these funds he ivas doing it for and on behalf of The First National Bank of Georgetown of which he was president.

Plaintiff’s counsel seek by a lengthy analysis of the words “employ” both noun and verb, “employee,” to so construe these words, together with the definition set forth in the bond to mean anyone who might be doing anything in which the plaintiff bank was interested, as covered by this bond. We are not impressed by the argument, ingenious though it may be, and feel that the same would lead to a strained construction never contemplated by either party.

Plaintiff’s counsel also seek to put a construction on the expression “persons, firms, or corporations furnishing transportation, trucking, messenger service, or the like” to make it mean that anyone to come under this clause must be “Engaged in the Business” of furnishing transportation, trucking, messenger service, or the like. We feel that goes beyond the bounds of fair and reasonable construction. It seems to us very clear that Clark was furnishing transportation and messenger service — if not for the Georgetown bank, then on his own behalf. To hold otherwise it seems to us would pervert the plain terms of the bond and place upon the defendant a burden never contemplated by any of the parties to the bond. The cases cited by plaintiff set forth propositions of law which are well recognized, and with which we have no quarrel, but we do not feel that any of them have any application to the facts in this case. It appears to us that throughout the entire transaction from the inception of the original contract through the negotiations for the transfer of the money after the government refused to transfer it, up to and including the day of the robbery, that at all times, O. P. Clark was acting as the representative of the Georgetown bank, and we feel that this is supported by the'proof of loss filed by the plaintiff in this case, part of which we will here quote: “The Second National Bank has employed the First National Bank in Georgetown, or its officers, for a consideration based upon the amounts of money paid out semi-monthly, to transfer said money from Dan-ville to Georgetown and pay same to the employes of the U. S. Fuel Company.” This is competent proof and may be considered in a determination of the issues. Kiesewetter v. Supreme Tent of Knights of Maccabees, 227 Ill. 48; North American Fire Ins. Co. v. Zaenger, 63 Ill. 464.

The consideration for transporting these funds was 10 cents per $100 on the cashing of checks, and ran to The First National Bank of Georgetown. Besides that, as mentioned before, to have this arrangement continued brought people to the Georgetown bank, and furnished it with currency with which to do business.

The trial judge found that Clark was not an employee of plaintiff and that plaintiff could not recover on the hond. With his decision we are in complete agreement. The judgment is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Davis

text:
    Donald McLaughlin, by Charles McLaughlin, His Guardian and Next Friend, Appellee, v. The Alton Railroad, Appellant.
    Gen. No. 8,849.
    Opinion filed January 14, 1935.

      Covey & Woods, of Lincoln, for appellant; Silas H. Strawn, of Chicago, of counsel.
    Harold F. Trapp, of Lincoln, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Donald McLaughlin, by Charles McLaughlin, his guardian and next friend, commenced this action against the Alton Railroad to recover damages for personal injuries sustained by him as a result of a collision between the automobile in which he .was riding and a car driven by Lafayette Boyer.

The right of way of the Alton Railroad extends north from Middletown, Illinois, and running parallel thereto and on the west side thereof is a State Aid Road which is improved with a gravel surface and is about 40 feet in width, and the graveled portion of the same being about 30 feet wide. The collision occurred on October 23, 1932, at a point on this State Aid graveled road about a mile and a quarter north of Middletown. At this place a private lane runs east across the right of way of the railroad to a farm house occupied by Herman Heyen, which is about a quarter of a mile east of the highway. This farm crossing was constructed and maintained by the railroad company. The point where the private road crosses the railroad track is at an elevation of about three and one-half feet above the grade of the highway, and it extends west about 40 feet to the east side of the highway. At this place and extending 300 or 400 yards south the right of way of the railroad is grown up with horseweeds, rosinweeds and brush six to eight feet in height, and growing so thickly together that it is impossible to see through them, and also the right of way of the State Aid Road adjoining the right of way of the railroad for a distance of from 9 to 11 feet in width is grown up with weeds.

Donald McLaughlin, Ananias Sparks and Paul Sparks were driving north on this State Aid Road, all of them occupying the front seat and Ananias Sparks was driving.

Just prior to the collision Lafayette Boyer was driving from the house of Herman Heyen over this private road in a Dodge car, and as he passed over the railroad he looked south and could see no car coming on the highway on account of the high weeds which were growing between where he was and the graveled portion of said highway. After crossing the track he started downgrade towards the highway at the rate of about six or seven miles per hour, and maintained this speed until he was struck by the car in which appellee was riding near the center of the graveled road. Donald McLaughlin, Paul Sparks and his brother, who was driving the car, did not see anything of the Boyer car until the front end passed the line of the weeds. The car in which they were riding turned completely over and came to rest about 75 feet north and west of the point of the collision. McLaughlin was pinned under the car and his back was broken, and he is paralyzed from the waist down.

The declaration contains three counts, the first of which charges that on October 23, 1932, the railroad corporation owned, possessed, operated and used a certain steam railroad, passing and extending through the county of Logan and through the village of Middle-town in said county northward; that there ivas situated immediately east of and adjoining the right of way of said railroad a certain public highway called the Middletown-Lincoln State Aid Road, which ivas extensively traveled; that about one and one-half miles north of the village of Middletown said railroad maintained a certain farm crossing, extending east from said public highway over the right of way of said railroad to certain lands used for farming purposes; that said railroad carelessly and negligently caused and permitted large quantities of weeds, high grass and brush to grow upon its right of way which were of the height of 10 feet above the level of the roadway, and the vision of persons traveling and passing along said highway was obstructed and such persons prevented from seeing or viewing motor vehicles traveling upon and across said farm crossing to the said public highway ; that on the day aforesaid the plaintiff was riding in a certain motor vehicle driven by one Ananias Sparks northward upon said public highway and was then and there in the exercise of due care and caution for his own safety, and that while so riding and traveling northward one Lafayette Boyer was then and there traveling in and driving a motor vehicle upon said farm crossing westward to the public highway, and that the motor vehicle in which said Boyer was riding was driven by him onto said public highway and by reason of the negligence of said defendant railroad company it was impossible for said Boyer to see and know of the approach of said motor vehicle in which the plaintiff was traveling, and also impossible for the plaintiff to see and know of the approach to said highway of said motor vehicle driven by said Boyer; that by reason of the premises and negligence of said defendant, in the manner aforesaid, the said motor vehicle in which the plaintiff was riding came into collision with the motor vehicle so driven westward into said public highway by said Boyer, with great force and violence, and by reason thereof the plaintiff was then and there thrown upon and against the inside of said motor vehicle and thrown from the inside of said motor vehicle upon the ground and was then and there greatly bruised and wounded, etc.

The second count is similar to the first except that it charges that the defendant carelessly and negligently, in violation of the statute in such case made and provided, refused and neglected to dig up and destroy or take other means of exterminating the divers noxious weeds, including horseweeds, burdock, morning glories and other noxious weeds which were then and there growing upon said right of way land of said railroad, and that by reason thereof said collision occurred and plaintiff was injured.

The third count is similar to the first except that it charges that the railroad company carelessly and negligently, in violation of the statute in such case made and provided, failed, neglected and refused to keep its right of way clear from dead grass, dry weeds and other dangerous combustible matter, and that by reason thereof the accident occurred and the plaintiff was injured.

The foregoing statement of the case sets forth the pertinent facts as disclosed by the record, and it will therefore be unnecessary to review the evidence.

Upon a trial of said cause the jury brought in a verdict against the defendant for $8,500, and a motion for new trial was overruled and judgment entered upon said verdict from which this appeal was perfected. At the close of plaintiff’s case and again at the close of all of the evidence, defendant asked for an instructed verdict which was refused by the court.

The errors assigned and argued are that the court should have granted the motion of defendant for an instructed verdict; that the court erred in the giving and refusing of instructions and in the admission and exclusion of evidence.

The first question presented by the record and argued by counsel is as to whether the negligence alleged was the proximate cause of the injury to the plaintiff.

Appellant contends that the court erred in refusing to give the peremptory instruction to find it not guilty, and argues the question as to whether the negligence charged was the proximate cause of the injury to the plaintiff.

When there is any evidence-fairly tending to show the negligence charged is the proximate cause of the injury, that question is one of fact for the jury; but whether there is any such evidence is a question of law which is raised by the motion for a directed verdict. Jenkins v. La Salle County Carbon Coal Co., 264 Ill. 238.

It is agreed that there has been practically no difference of opinion as to what the rules are for determining whether a negligent act or an omission is the proximate cause of an injury, and they have been stated in numerous decisions by our courts.

A negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. The question is not determined by the existence or non-existence of intervening events, but their character and natural connection between the original act or omission and the injurious consequences. To constitute the proximate cause the injury must be of such a character as an ordinarily prudent person ought to have, foreseen might probably occur as a result of the negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the condition is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury, is such as in the exercise of reasonable diligence would not be anticipated and the third, person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury. Seith v. Commonwealth Elec. Co., 241 Ill. 252; Jenkins v. La Salle County Carbon Coal Co., supra.

The immediate cause of appellee’s injury was the negligence of Lafayette Boyer in driving onto the State Aid Road without stopping or attempting to ascertain whether any cars were approaching from either direction.

The legal rights of appellant are the same as any other landowner with reference to keeping its lands free and clear of weeds, brush and other growths, except as to its statutory duty to dig up and destroy Canada thistles, and other noxious weeds growing tliereon, and also to keep its right of way clear from dead grass, dry weeds and other combustible material.

Neither the railroad company nor the owners of other lands bordering along this State Aid Road owed any duty to persons using said highway to keep their lands free and clear of horseweeds, rosinweeds and brush in order that the view of such persons might not be obstructed, and that they might be able to see cars approaching along intersecting highways.

The kind of weeds and brush which it is charged in the declaration the defendant railroad company permitted to grow upon its right of way does not come within the prohibition of either of the statutes in question.

The Alton Railroad, because it permitted the growth of horseweeds, rosinweeds and brush on its right of way, could not reasonably have anticipated that the driver of an automobile approaching such State Aid Road along this private lane would drive onto said highway without stopping or trying to ascertain whether any cars were approaching' such intersection and thus cause injury to persons traveling thereon, nor by the exercise of reasonable diligence could have foreseen that such an accident might occur, and its duty to have foreseen and anticipated such intervening causé as a natural and probable consequence of permitting such growth of weeds and brush upon its right of way would in no way be different than the duty of any other landowner who permitted weeds or allowed corn or other crops to grow upon its lands adjoining the right of way of such State Aid Road to such a height as to obscure the vision of persons driving along such highway, and as to such other landowners because of the height of the corn growing on their lands or the height of weeds permitted to grow there, it can hardly be contended that by the exercise of reasonable diligence such owners could have foreseen that an accident might happen to those using such highway on account of such crops and weeds obscuring the vision of such person and that therefore such owners must answer in damages for the injuries caused.

We are of opinion that the negligence charged in the-declaration was not the proximate cause of the injury to plaintiff.

The court erred in not directing a verdict for the defendant, and the judgment of the circuit court is therefore reversed.

Reversed.


text:
    Richard A. Hitchcock et al., Appellees, v. E. M. Reynolds, Appellant.
    Gen. No. 8,856.
    Opinion filed January 14, 1935.

      Ezra J. Clark, of Canton, for appellant.
    Fred H. Snyder, of Canton, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

Appellees, Richard A. Hitchcock, Ross Wilcoxen, Alfred Wilcoxen, James Wilcoxen and Roy Cray, filed their complaint in an action at law against appellant, E. M. Reynolds, in the city court of Canton, on February 12, 1934, to recover for services which it is alleged they severally rendered appellant.

The complaint consists of five counts, in the first of which it is alleged: 1. That during the months of August, September, October and November, A. D. 1933, the defendant, E. M. Reynolds, was possessed of a certain coal mine, situated on what is known as the Whitmore Farm, two miles east and one-half north of the City of Canton, in the county of Fulton and State of Illinois. 2. The plaintiff, Richard A. Hitchcock, says that on or about the first day of August, A. D. 1933, at the City of Canton, Illinois, the defendant, E. M. Reynolds, agreed to employ the plaintiff, Richard A. Hitchcock, to work in and about said coal mine for the sum of $4 per day; and that the said plaintiff at the request of the defendant performed labor, work and services in and about said coal mine of the defendant for the period of 75 days, and although often requested the defendant has wholly neglected and refused to pay plaintiff, Richard A. Hitchcock, for said labor, work and services performed by him as aforesaid, wherefore, the plaintiff, Richard A. Hitchcock, asks judgment for $300.

Each of the other plaintiffs, viz., Ross Wilcoxen, Alfred Wilcoxen, James Wilcoxen and Roy Cray, in separate counts reallege as though fully set out, paragraph 1 of count 1 and then allege in substance what is alleged by the plaintiff, Richard A. Hitchcock in paragraph 2, count 1, of the complaint, except as to a variance in dates and duration of employment and amount to be received per day for services and amount for which judgment is asked.

Appellant filed a motion in the nature of a demurrer in the following words: “The defendant moves that said complaint be dismissed and as ground therefor says that the parties plaintiff and the causes set forth in the complaint are improperly joined.”

The court upon a hearing thereon overruled said motion to dismiss said complaint. Appellant thereupon filed his answer in which he denied each and every allegation contained in paragraph 2 of count 1, and paragraph 3 of count 2, and paragraph 4 of count 3, and paragraph 5 of count 4 and paragraph 6 of count 5 of said complaint.

Appellant filed an application for separate trials of the complaint of the plaintiffs in said cause, which set forth in substance that it would embarrass and delay the trial of this cause not to separate said matters because of the joinder of the parties plaintiff and the causes of action as appears by the complaint filed by the plaintiffs herein, there being no common questions of fact or law existing in regard, or alleged in regard to the various counts of said complaint and the various claims of the plaintiffs herein not arising out of the same transaction or series of transactions.

The court upon consideration of said application denied the same. On motion of plaintiff, Alfred Wilcoxen was permitted at his cost to voluntarily dismiss his action as to said defendant.

None of the parties to said cause having demanded a jury the same was submitted to the court for trial. The court after hearing the evidence and the arguments of the attorneys for the respective parties found the issues in favor of the plaintiffs and rendered separate judgments in favor of the respective plaintiffs for the amounts found due them respectively and awarded execution.

■ Appellant filed a notice of appeal, which on his application was made a supersedeas upon his giving bond in the penal sum of $2,500, which was approved by the court.

• Appellant seeks a reversal of said judgment on the grounds that there ivas an improper joinder of parties plaintiff and causes of action, as disclosed by the face of the complaint, and that such-improper joinder was aptly called to the attention of the trial court by his motion to dismiss; and also for the reason that the court erred in overruling his motion for separate trials; and that, it was error for the court to enter a final judgment against appellant after overruling these motions.

• Section 45 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 173, provides that “(1) All objections to pleadings heretofore raised by demurrer shall be raised by motion. Such motion shall point out specifically the defects complained of, and shall ask for such relief as the nature of the defects may make appropriate, such as the dismissal of the action or the entry of a judgment where a pleading is substantially insufficient in law, or' that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.”

This section abolishes demurrers and substitutes a motion in the nature of a special demurrer, in that the motion must point out specifically the defects complained of and ask for such relief as the nature of the defects may make appropriate.

A motion which fails to allege facts pointing out specifically the defects complained of and to ask for such relief as the nature of the defects may make appropriate, is insufficient in law and will not be entertained by the court.

The purpose of the Act, in requiring the motion to specifically point out the nature of the defects, is to inform the party against whom the motion is directed what the contention of the party is, so that he may make preparation to meet such contention.

Misjoinder of parties is not a ground of abating the action; but under said section 45 of the Civil Practice Act a motion will be entertained to require parties improperly joined to be dismissed. No action shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped by order of the court at any stage of the cause, before or after judgment, as the ends of justice may require. Civil Practice Act, sec. 26, Cahill’s St. ch. 110, ¶ 154.

Even though there might be a misjoinder of parties plaintiff, as claimed by appellant in his motion, the court would not be authorized to dismiss the complaint for that reason.

A motion which seeks to raise the question of misjoinder of causes of action in the complaint must specifically point out such defect by proper allegations, and it is not sufficient to simply allege that the complaint is defective because the causes of action alleged therein are improperly joined. The court did not err in overruling the motion of appellant to- dismiss the complaint.

When a question as to the sufficiency of a complaint is raised by a motion' and acted upon by the court, it cannot again be raised by answer; and even under section 48 of the Civil Practice Act which provides for involuntary dismissal for certain defects appearing on the face of the complaint when a motion is'made raising any of such defects, it cannot again be raised by answer if the-court shall have made a decision .thereon.

And the court did not abuse its discretion in denying the application of the appellant for separate trials in said cause. Appellant had filed his answer to the complaint and the cause was at issue; the amounts involved were small and none of the parties had demanded a jury trial, and it does not appear that such joinder would embarrass or delay the trial of such action. A complaint that is so defective that it will not sustain a judgment may be taken advantage of on a motion in arrest of judgment. All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived. Civil Practice Act, sec. 42, par. 3, Cahill’s St. ch. 110, ¶ 170. Appellant having failed • to properly present to the trial court for its consideration the question as to the misjoinder of the parties plaintiff and causes of action, we are precluded from considering the question as to whether the allegations of the complaint show that the causes of action arise out of the same transaction or series of transactions or as to whether any common questions of fact or law would arise had plaintiffs brought separate suits. The judgment of the circuit court is therefore affirmed.

Affirmed.