text:
    Leon Montagne, Appellee, v. Belleville Enameling & Stamping Company, Appellant.

      Opinion filed July 16, 1928.
    Farmer & Klingel, for appellant.
    Clyde D. Miller, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment for $12,500 recovered by appellee against appellant for injuries to appellee’s health, which he claims to have sustained by reason of having contracted silicosis while in the employ of appellant as a sand-blaster.

The suit is based upon section 1 of the Occupational Diseases Act, Cahill’s St. ch. 48, ¶185 et seq., of Illinois. The declaration charges that appellant conducted an enameling plant wherein stove castings were cleaned by the process of sand-blasting whereby sand, was forced by compressed air against the castings contained in a steel room inclosure; that this work caused the air in the room to be filled with fine particles of sand; that the sand particles collecting in the lungs of employees engaged in sand-blasting, causing them to contract silicosis, or “sand-blasters disease,” which disease is peculiar to persons engaged in that business; that appellant wilfully failed to provide reasonable and approved devices for the prevention of such diseases, in that it failed to provide means for carrying off the particles of sand in the air or blowers of sufficient suction to carry off the air impregnated with sand, or masks or respirators to keep employees engaged in such from inhaling sand particles; that appellant permitted its devices to become and remain in disrepair. As a result thereof appellee contracted silicosis, causing him to become sick, permanently injured and incapacitated and his life shortened.

To this declaration appellant filed general issue and two special pleas. These special pleas alleged that both parties were working under the provisions of the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., and at the time appellee received his injuries appellant was engaged in the operation of an enamel plant in which it carried on the process of manufacturing and labor in which certain lead products were used in harmful quantities; wherefore, it was averred by said pleas that appellee’s injuries arose out of and in the course of his employment with appellant, within the meaning of section 2 of said Occupational Diseases Act, Cahill’s Sf. ch. 48, Ü186, and that appellee was precluded from maintaining an action at law against appellant.

Appellant was engaged in the operation of an enameling plant, and its business consisted in placing a quantity of enamel upon castings brought to it for that purpose by other foundry men and stove manufacturers. In the preparation of these castings for the enameling process, their outer surface is required to be first cleaned and rendered smooth and this work is done by means of sand-blasting.

Sand-blasting equipment used by appellant consisted of sand-blast room made of steel about 8 by 10 by 7 feet high, with double doors in the front, used for taking castings in and out and for the purpose of ingress and egress. The ceiling of this room was slotted for the purpose of admitting air, the floor was grated to permit the sand and air to be drawn down out of the room, the sand falling into a hopper underneath the grating.

The castings were placed on a table in this room and by means of a hose used by the operator the air and sand were forced under pressure against the castings in order to clean and render them smooth. The sand used in the process of cleaning fell through the grating of the floor into a hopper where it was carried by means of air suction into certain pipes through a separator in which the clean sand was supposed to be removed and used again.

The air, sand and dust particles of the room were supposed to be removed by a large revolving ventilator fan which was calculated to change the air in the sandblast room ten times per minute. The men engaged in the sand-blast room worked in pairs relieving each other at the end of every half hour during an 8 hour shift.

A helmet, respirator and goggles were furnished employees by appellant to use when engaged in working in the sand-blast room. The evidence offered by appellant showed that the equipment, as originally installed was of standard make and was quite extensively used by manufacturers for cleaning castings.

The material used by appellant for enameling castings was composed in part of lead and litharge, and a large portion of the castings that were enameled by appellant were required to be re-enameled on account of defects in the original enameling and the old enamel was removed from the castings by the process of sand-blasting.

Appellee was about 50 years óf age, worked as a coal miner for about 25 years before he worked for appellant as a sand-blaster. His employment for appellant began in March, 1925, and ceased in August, 1926, when he became sick with lead poisoning and quit appellant’s employ. He was treated for lead poisoning until some time in September, 1926, having made claim and being paid compensation for his time lost on account of his illness.

In October, 1926, appellee became sick and his family physician examined him and diagnosed his trouble as anthracosis, but when called as a witness for appellee stated that appellee had silicosis.

The first point urged by appellant is that the court erred in overruling appellant’s motions made at the close of the evidence of appellee and renewed at the close of all the evidence, first, to dismiss the suit for want of jurisdiction, and second, to instruct the jury to find appellant not guilty.

Appellant’s contention is that appellee should have proceeded under Workmen’s Compensation Act instead of under Occupational Diseases Act. There is no contention nor any proof in the record tending to show that appellee’s ailments were the result of lead poisoning. Paragraph 2, subdivision (b) of section 15 of the Occupational Diseases Act, Cahill’s St. ch. 48, 1T199, subd. (b), par. 2, provides as follows: The words “occupational disease” means a disease peculiar to and due to the nature of an employement in one or more of the occupations referred to in section 2 of this act, Cahill’s St. ch. 48, tf 186.

In Kelley v. St. Louis Smelting & Refining Co., 307 Ill. 367, on page 371, it was said: ‘ ‘ Section 2 relates to certain lines of industry which are declared to be ‘especially dangerous to the health of employees.’ This section not only purports to cover those employments which require the using and handling of a variety of lead preparations in harmful quantities or under harmful conditions and where brass is manufactured or lead or zinc is smelted.”

Silicosis or sand-blasters’ disease is not peculiar to the nature of any occupation mentioned in section 2 and the proof in the record fails to sustain appellant’s contention that appellee’s ailment was due to the handling of those poisonous chemicals, minerals or other substances mentioned in said section 2.

Appellant’s second contention is that appellee failed to prove that appellant was guilty of the wilful violation of the statute as charged against it in the declaration.

The testimony offered by appellant tended to show that the sand-blast equipment and devices used by it were standard and approved devices that were in common use by other manufacturers engaged in the same line of business; that by reason of the air and sand being constantly used under high pressure, frequent repairs were necessary in order to obtain efficiency from the sand-blast apparatus; and that pending the making of repairs more or less dust in considerable quantities would accumulate in sand-blast room and that at times this was difficult to prevent.

Several witnesses for appellee testified that holes frequently wore in the sand pipe thereby reducing the air suction and increasing the amount of sand and dust in the sand-blast room and that repairs made by appellant were not timely, sufficient or adequate to overcome this loss of suction; that whenever holes wore in the suction pipes the sand would not be removed efficiently and temporary repairs were made by stuffing the holes with rags; that frequently complaints were made by the employees concerning failure of appellant to promptly make repairs; that this condition of disrepair of the pipes was quite frequent and by reason thereof there was an extra amount of sand and dust allowed to accumulate in the sand-blast room to the detriment of the workers therein. ■ f

There was some testimony on the part of appellee tending to show that the suction fan was out of repair; that the doors of the sand-blast room were warped and did not fit tightly, thereby reducing the amount of suction in the sand-blast room.

The evidence was conflicting as to whether the repairs were promptly made and whether the sand and dnst were knowingly allowed to accumulate and permeate the sand-blast room to the serious detriment to the health and safety of the employees of appellant. To deliberately operate the sand-blast apparatus, without making adequate repairs to prevent dust accumulating in the sand-blast room, was a violation of appellant’s statutory duty as defined in section 1 of the Occupational Diseases Act, Cahill’s St. ch. 48, 185. (May v. Belleville Enameling & Stamping Co. 247 Ill. App. 275.)

Appellant next contends that there is no proof silicosis is an occupational disease and that appellee did not establish that the disease from which he is suffering is silicosis.

Dr. Wilson, witness for appellee testified that he first saw appellee in October, 1927, and diagnosed appellee’s ailments as silicosis or sand-blast disease; that it is caused by breathing in particles of fine sand; that inhaling of sand causes a breakdown of air cells and bronchial tubes and is followed by the formation of sear tissue or fibrosis; that the scar tissue affects the breathing; that the final result is death, and that appellee was entirely incapacitated for any kind of work.

Dr. Lougeay testified on behalf of appellee that he was acquainted with the disease known as silicosis; that it was caused by inhalation of sand or silica; that sand-blasters were susceptible to the disease; that sand causes irritation to the air cells of the lungs causing scar tissue to form, cutting down the air supply thereby affecting the breathing. On examination of the appellee it was found that he had an advanced case of silicosis, was in a critical condition and that it was permanent.

Medical testimony offered by appellant tended to show that appellee was suffering from anthracosis rather than silicosis, and that an X-ray offered in evidence showed a condition similar to silicosis; that an examination of the X-ray plate showed that there were numerous foreign particles deposited in both lungs; that examination of the Xrray plate did disclose the difference between anthracosis and silicosis. Some of the witnesses testified that anthracosis could only arise where the patient was subjected to dust from hard coal. The proof was that appellee had never worked where there was hard coal dust. It is clear from the evidence that appellee’s condition was due to foreign particles which produced a fibrous condition of the lungs. The proof showed that appellee had come in contact with sand dust in large quantities; that he inhaled the same and had at times coughed and spit up considerable quantities of sand.

In Jannusch v. Weber Bros. Metal Works, 249 Ill. App. 1, it was said in a recent case involving an employee who contracted tuberculosis through inhaling metallic dust and it was held:

“It is, of course, impossible in a case of this kind to prove the cause of a disease with anything like mathematical accuracy or with the certainty with which the results of other causes may be shown. Medicine is not an exact science. Its method is that of induction rather than deduction, and we think, contrary to the first contention of the defendant here, that the evidence we have recited, with a great deal of other evidence which is in the record, made a question for the jury as to whether the plaintiff contracted this disease in the course of his employment at the plant of the defendant. As to what is an occupational disease within the meaning of the statute, the answer is found in section 1 of the statute (Cahill’s St. ch. 48, 185; Smith-Hurd’s Ill. Rev. St. 1927, p. 1309), which in substance provides that every employer engaged in carrying out any work or process which might produce any illness or disease peculiar to the work or process carried on, or which subjects the employees to the danger of the illness or disease incident to such work or process to which employees are not ordinarily exposed in other lines of employment, shall provide certain means for the protection of such employees from these diseases.”

In May v. Belleville Enameling & Stamping Co., 247 Ill. App. 275, we held that the question whether the intestate in that case died from silicosis contracted while working for appellant, under conditions similar to those shown in this record, was a question of fact for the jury to decide from the evidence.

The proof in this record as to the manner of operation of appellant’s plant is substantially the same as that shown by the record in the May case. After careful examination of the record in the present case we are of the opinion that the evidence in the record is sufficient to establish the fact that appellee suffered from silicosis or sand-blasters’ disease contracted while in the employ of appellant and that such disease is peculiar to those engaged in sand-blast work, to which workers are not ordinarily exposed in other lines of employment. The determination of these questions of fact was for the jury to pass upon and we do not feel warranted in setting aside the verdict of a jury on these propositions.

Appellant next urges that the court erred in refusing its two instructions numbers two and three but the abstract shows that appellant’s given instructions numbers ten and eleven are duplicates of the refused instructions, hence there is no merit to counsel’s contention.

Counsel also urge that the verdict is excessive and that the trial court in its rulings and conduct prejudiced appellant’s case before the jury but after due consideration of the record we are of the opinion that the verdict should not be disturbed -on these grounds. Appellee was 50 years of age, had an earning capacity of over five dollars per day and the proof shows that he is permanently injured and unable to work. .

For the reasons aforesaid the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Newhall

license: Public Domain

text:
    Monroe County Savings Bank & Trust Company, Appellee, v. Louis Klohr, Appellant.
    Opinion filed July 16, 1928.
    P. K. Johnson, for appellant.
    Pope & Driemeyer, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee filed a creditor’s bill against appellant and others, and a decree was rendered in favor of appellee and appellant brings this appeal.

The bill avers that appellee on July 8,1926, recovered a judgment in the circuit court of St. Clair county, against Caroline Klohr, mother of appellant, for $1,012.22 and costs and on the same date recovered another judgment against said Caroline Klohr and appellant for $1,808.95 and costs; that transcripts of the judgments were filed in Monroe county and executions issued which were returned “unsatisfied” by the sheriff.

The bill further avers that George Klohr died intestate on January 3, 1915, owning 385 acres of land in Monroe county, and leaving surviving him, Caroline Klohr, his widow, appellant, his son, and 11 other children; that the widow thereby became entitled to dower in said land and each child became the owner in fee of an undivided one-twelfth interest subject to said dower which had never been assigned; that Michael Klohr, one of said children, on September 22, 1925, conveyed to appellant, by quitclaim deed, all his interest in said real estate; that Caroline Klohr on the same day also conveyed by quitclaim deed all her interest in said land, except her homestead right, to appellant; that such conveyances were made to hinder and delay complainant in the collection of said judgment ; that no consideration passed between the parties and were fraudulent and made for the purpose of cheating their creditors; that Caroline Klohr refused to apply for her assignment of dower in order to defeat complainant in the collection of said judgment.

Appellant and Caroline Klohr filed answers denying that such conveyances were made without consideration or for the purpose of defrauding creditors and alleged that the same were made in good faith and for adequate consideration. Replications were tiled and, after hearing before the court, a decree was entered finding all the material allegations of the bill to be true, and decreeing that such conveyances be set aside and declared null and void as to the complainant ; that the sheriff be directed to sell the one-twelfth interest of Michael Klohr to satisfy the said judgment; that Caroline Klohr be decreed to be endowed of a one-third portion of said land and entitled to have her dower assigned and allotted to her and that the rents and profits be applied by a receiver, to be appointed by the court, to take charge of the land assigned to her as dower; that if the lands cannot be divided that the receiver be authorized to collect the widow’s share of the rents to be applied on said judgment or that appellee at its option may have a jury impaneled to assess the yearly value of the dower and have the same applied upon said judgment until paid, and by the decree commissioners were appointed to assign dower.

The widow and all children were made parties defendant, who prayed a joint and several appeal, and appellant prosecutes this appeal.

Appellant contends that the evidence does not support the findings of the decree, and that the trial court had no jurisdiction to enter a decree for assignment of dower and to appoint a receiver to manage the same and collect the rents and profits arising therefrom.

At the time of the death of George Klohr, father of appellant, in 1915, he was living upon the farm in question, with his wife and 10 of his children. There was a mortgage of $9,000 on the farm. The adult children participated in the operation of the farm and after the death of the father the widow and children continued to live upon and manage the farm. They lived as a common, family so far as the operation of the farm was concerned and there never was any division of the land or assignment of dower or homestead.

The widow was appointed administratrix and settled her husband’s personal estate. The moneys arising from the operation of the farm were used to pay the living expenses of the family, to discharge the mortgage, to improve the buildings, pay taxes and the personal investments and expenses of various members of the household. No actual division of the moneys realized was ever made, no member of the family kept any bank account and the common fund was kept in currency between the leaves of a county atlas in the kitchen cupboard in the farm house, to which repository all adult members of the family had access and from time to time helped themselves as occasion demanded.

No books of account were produced and no written record was made by any of the interested parties of the additions or withdrawals that were made from the common fund or any notes or other memoranda were ever exchanged between the parties purporting to show what each had contributed or withdrawn from the common fund or from each other. The farm consisted of 385 acres, worth about $75 per acre, and a one-twelfth share subject to the dower was valued at about $3,200.

Appellee called the widow, Caroline Klohr, to testify in its behalf and stated that appellant did not pay her any cash at the time she made her conveyance to him; that appellant had worked on the farm, received from the common fund money that he needed from time to time but had never been paid for working; that the adult children were to receive half of the wheat crop and she the other half, but that all of the wheat money was put- into the common fund and used to pay the mortgage debt and other expenses for running the farm; that at the time of making the deed she owed money to her sons Louis, Fred and Henry, but that she made the deed to Louis because he was the oldest son and she thought Louis should have the money before it might be lost; that she thought the boys came first and wanted them paid before the bank (appellee); that appellant knew she owed the bank; that she had never made any note to Louis for her alleged debt to him or ever paid any interest to him; that what money Louis earned outside work was put into the common fund and used in the same manner as that received from the profits of the farm; that it was sort of understood by all of the children that at some time they were to get back what they contributed to the common fund, but her testimony as to what was contributed or owing was vague and uncertain; that at one time some of the adult boys worked for her at $150 per year, but it was uncertain when this alleged arrangement commenced or ceased, or when it was made an actual matter of debit and credit or who were the actual debtors or creditors; that no records were kept of payments made or received by appellant and the witness.

Appellee also called as its witness Michael Klohr, who testified that appellant knew he was indebted to the bank when he made the conveyance; that he received $125 when the deed was made and that later it was agreed he would receive $1,200 against the debt he had at home; that he was not indebted to appellant when the deed was made and did not know who was to pay him the $1,200; that he needed money and this was the only chance he had to get it; that prior to making the deed he had received at different times about $2,000 from the common fund at his mother’s home; that he said he would pay it back when he got it, and there was no agreement about interest or any note made to evidence these alleged loans; • that when he made the deed appellant said -it would discharge his credit at home and that he would see that the witness receive the $1,200 from home, which was subsequently, paid to him by various members of the family from the common fund; that the common fund owed money to appellant but he did not know the amount but he always thought that it was his mother who owed the money; that while he was away from the farm for about three years he never asked for rent on account of his interest and never demanded any accounting.

Appellant testified, in his own behalf, that he worked on the farm with the other adult children, except when in the Army in 1919; that he also worked at times away from the farm at threshing and other jobs; that the money he received he brought home and placed in the common fund; that it was understood he was to draw wages from the conpnon fund at the rate of $150 per year, and he claimed that there was owing him out of the common fund $5,474 when the deeds were made; that he drew money from the fund to make outside investments, and that this debt owing from the common fund was charged -against his mother and brother Michael when the deeds were made.

On cross-examination he said this $5,474 was for wages and that he had it coming from his mother; that he and his brothers worked for her and the wages were for one-half of the wheat crop; that the money was put into the common fund with the understanding that the debts were to be paid first and that settlement was to be made after the debts were paid by the mother who was running the farm; that the mortgage debt on the farm was charged to his mother and that she paid it out of the common fund and in making settlement all of this mortgage debt was charged to her.

Herman and Henry Klohr, brothers of appellant testified for the defense to substantially the same arrangement as to the operation of the farm and the accumulation and disposition of the common fund; that in various outside investments made by members of the family there had been a loss of about $10,000; that some sort of a book was kept at home in which entries were made, but no books, accounts or memoranda of transactions between members of the family were produced, which showed the state of their account or what was in fact distributed from the common fund or owing by any contributor thereto.

In Bartel v. Zimmerman, 293 Ill. 154, it was held (page 162):

“It is the established rule of law in this State that a debtor may prefer a creditor or creditors and that such preference is valid notwithstanding the claims of other creditors, provided the debt preferred is actual and the property transferred does not greatly exceed the amount of the claim and that the transaction is not a mere device to secure an advantage to the debtor or to hinder, delay or defraud other creditors. This rule applies to members of a family, but where an immediate member of a family is preferred as a creditor there must be clear and satisfactory proof of a valid and subsisting debt which would be enforced and payment exacted regardless of the fortune or misfortune of the debtor. (Schuberth v. Schillo, 177 Ill. 346; Dillman v. Nadelhoffer, 162 id. 625.) While a conveyance between parties related to each other by blood or marriage does not, of itself, establish fraud in the transfer, the fact of relationship may properly be considered in connection with other evidence tending to impeach the transaction. (Schroeder v. Walsh, 120 Ill. 403.) Intent to defraud is sometimes implied from the relationship of the parties in connection with other circumstances. (20 Cyc. 487.)”

The facts upon which the rights of the parties depend must be determined in this case from the conduct of the parties and all of the circumstances in evidence including the family relations that existed.

An examination of the record shows that there was no clear and satisfactory proof of a valid subsisting debt which was to be enforced and payment exacted regardless of the fortune or misfortune of the widow and son. It is very evident from a reading of the testimony that in all probability, if the widow and son had not become involved financially to outside creditors, their prior manner of conduct of the farm and peculiar method of handling the so-called “common fund” would have continued indefinitely. This method was not a debtor and creditor basis, and the withdrawals from the fund by members of the family, for their own use, was evidently to be returned at their option, depending rather upon their fidelity to the family and the success or failure of the particular purpose for which the money might be used. No books of account were kept wherein were entered any charges or credits, no notes were ever executed by any of the family to each other, or any interest charged or paid, in fact the entire arrangement lacked those elements which indicated that the family affairs were ever conducted between themselves on a debtor and creditor arrangement.

What was actually paid into the common fund over the period of years that the farm was operated, and by whom and where it went to, is vague and uncertain except that it is shown that from the earnings the mortgage debt was discharged, the farm improved and each member of the family received various sums not only for their personal living expenses but for outside investments, made apparently by common consent without any particular definite arrangement as to repayment.

Appellant contends that because appellee called as witnesses the defendant widow and son their credibility cannot be disproved and appellee is bound by their testimony. While it is true that where a party calls his adversary as a witness, he cannot question his credibility, yet if, when the entire testimony is considered, it is apparent that there was an intent to defraud and" that the conveyance was made for the purpose of hindering and delaying creditors the testimony of the parties to the transaction that there was no fraudulent intent and that the conveyances were made in good faith will not be sufficient to prevent the court from reaching a contrary conclusion based upon, the whole record.

Appellant knew that his grantors were indebted to the bank at the time the conveyances were made and • that the effect thereof was to place beyond the reach of ordinary process the collection of the bank’s claims. From a careful consideration of all the testimony we are of the opinion that the purpose of the conveyances by Caroline Klohr and Michael Klohr was to place their property beyond the reach of their creditors, and that they were not supported by any valid subsisting debts and were not made in good faith.

As to the transaction between Caroline Klohr and appellee counsel contends that the main question is whether the court had the right to enter a decree for the assignment of her dower and for a receiver to manage and collect the same. Counsel concede- that the rule in this State, as laid down in Fletcher v. Shepherd, 174 Ill. 262, is that the effect of the deed by the widow to appellee purporting to quitclaim all her interest in the farm, only had the legal effect of releasing her dower in the undivided one-twelfth interest of said farm. Caroline Klohr did not perfect her appeal from the decree of the trial court.

In Petefish, Skiles & Co. v. Buck, 56 Ill. App. 149, and Thompson v. Marsh, 61 Ill. App. 269, it was held that an unassigned, consummate right of dower may be reached by a creditor’s bill and through the medium of a receiver the rents and profits sequestered for the benefit of judgment creditors. In 19 C. J. 537 it is said: “In many jurisdictions it is held that an unassigned right of dower may be reached by a judgment creditor in equity by means of a creditor’s bill or other suitable remedy.” In support of the text are cited cases from the courts of Massachusetts, New York, New Jersey, Ohio and the Federal courts.

Section 49 of the Chancery Act, Cahill’s St. ch. 22, If 49, authorizes a judgment creditor, by bill in chaneery, to compel a discovery of any property, money or thing in action dne to the judgment debtor and subject it to the payment of his judgment. A thing in action is properly distinguished from a thing of which the owner has the actual or constructive possession but for which an action may be brought to reduce it to possession, and to constitute a thing in action there must be a fixed present right of the owner to recover the money or property in an action in his own name. Tumy v. Mayer, 289 Ill. 458.

Counsel for appellant cite the cases of Jespersen v. Mech, 213 Ill. 488, and Press & Co. v. Fahy, 313 Ill. 262, in support of their contention that the widow’s unassigned dower rights cannot be sequestered for the benefit of judgment creditors but in our judgment they are not applicable to the instant case.

The Jespersen case involved the question of reaching the right to a widow’s award prior to her election to claim the same, and it was held that it could not be reached until after the allowance. The Press case involved the power of a court of chancery to compel a corporation to issue a certificate of membership to an applicant who had not complied with the by-laws of the corporation, and the case does not support appellant’s contention.

For the reasons aforesaid we are of the opinion that the decree of the trial court is supported by the law and the weight of the evidence, and accordingly the same is affirmed.

Affirmed.


author: Mr. Justice Wolfe

text:
    L. M. Murrie et al., Appellees, v. L. L. Harper, Appellant. (Two Cases.)
    Opinion filed July 16, 1928.
    H. A. Evans and Brannan, Maloney & Wooster, for appellant.
    John" W. Browning and S. B. Kerr, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

These causes, in which bills for injunctions were filed by complainants as taxpayers on behalf of themselves and all other taxpayers, come to this court on appeals from decrees of the circuit court of Massac county permanently restraining the city of Metropolis from paying any further sums' of money to appellant out of the general treasury of said city for engineering services rendered or to be rendered by appellant in certain local improvements mentioned in the decrees.

On August 24, 1925, the city of Metropolis entered into an agreement with the appellant in which it was agreed that appellant would furnish all necessary plans, specifications and estimates of cost and all engineering services for the construction and completion of certain proposed, and any other, local improvements that said city might authorize, for five per cent of the total cost of said improvements, two per cent of the estimated cost to be payable when the plans, specifications and estimates of cost were delivered, one per cent upon confirmation of the assessments, and the balance of two per cent to be paid as the work progressed ; and that in the event that said improvements should be abandoned before confirmation, said appellant should accept said initial payment of two per cent in full payment for his services.

Appellant thereafter prepared and delivered plans, specifications and estimates of cost in connection with an improvement designated as “ Paving District No. 1,” which were accepted and used by the board of local improvements in the preparation of a resolution recommending the making of the improvement and, after a public hearing upon said resolution, in the preparation of a final resolution passed by said board of local improvements resolving that said improvement as shown by said plans, specifications and estimates of cost be made and a draft of an ordinance for the construction of said improvements in accordance therewith was then prepared by said board, which ordinance together with said plans, specifications and estimates of cost were thereafter submitted to the city council with a recommendation that said ordinance be passed and the city council of said city thereafter passed said ordinance approving said plans, specifications and estimates of cost, being ordinance No. 701, section 3 of which ordinance provided that the whole cost of said improvement including the sum of $16,000, being the amount included in the estimate of the president; attached thereto, as court costs and necessary lawful expenses in such behalf, be paid for by special assessment.

On December 14, 1925, the city council authorized the borrowing of $5,000 with which to pay engineering fees, assessor, and clerk hire, and thereafter said sum was borrowed from the First National Bank of Metropolis, Illinois, for which a warrant was issued to said bank which did not on its face provide for its payment out of any particular fund. Out of said $5,000 said city paid $4,000 to appellant for engineering fees, leaving a balance due on the initial payment of two per cent of something over $3,000.

Thereafter said improvement ordinance No. 701 was repealed on recommendation of the board of local improvements and the improvements abandoned.

On May 24, 1926, said city and appellant entered into a new contract reciting that said prior improvement had been abandoned, and that a new district designated as “Paving Improvement No. 1” had been laid out and adopted by the board of local improvements and in which it was agreed that appellant should receive the balance due of $3,226.85 on account of the two per cent earned by him in said proceeding which had been abandoned, and three per cent of the cost of said new improvement designated as “Paving Improvement No. 1” (one per cent of said three per cent to be paid upon confirmation and the remaining two per cent upon completion and acceptance of the work), in full payment for his services in both of said improvements.

Subsequent to the making of said last-mentioned contract, appellant prepared the necessary plans, specifications and estimates of cost for the construction of said improvement designated as “Paving Improvement No. 1,” and thereafter, upon recommendation of said board of local improvements, the city council passed an ordinance, being ordinance No. 706, providing that the whole cost of said improvement, including the sum of $6,000 being the amount of the estimate the president of the board of local improvements thereto attached, as cost of making, levying and collecting the assessment and necessary lawful expenses, be paid for by such special assessment. Subsequently said ordinance No. 706 providing for said “Paving Improvement No. 1” was repealed on advice of the board of local improvements and said proposed improvement abandoned.

Thereafter appellant prepared the necessary plans, specifications and estimates of cost for another proposed improvement also designated as “Paving Improvement No. 1” and an ordinance, being ordinance No. 712, providing for said improvement, was thereafter duly passed by the city council on the recommendation of said board of local improvements, and afterward said ordinance No. 712 was repealed on the advice of the board of local improvements and said improvement abandoned.

Thereafter appellant prepared all necessary plans, specifications and estimates of cost for a new improvement designated, as was the first improvement, “Paving District No. 1” and an ordinance was duly passed by said city council on the recommendation of said board of local improvements, in accordance with said plans and specifications, and upon a petition being filed in circuit court of Massac county an order confirming said assessment was entered in said court on the same day that the decrees in these cause's were entered.

The fiscal year of the city of Metropolis begins on the 1st day of July of each year and the annual appropriation ordinance for the year commencing July 1, 1925, did not contain any definite item for engineering services, but did contain an item “For Streets, Alleys and Sidewalks — $20,000.00 ’ ’

The annual appropriation ordinance for the year beginning July 1, 1926, contained, among others, the following items:

Engineering services, Streets, Alleys and
Sidewalks........................ $15,000.00
Electrical and Civil Engineering services .............................. 4,000.00
Engineering services for new sewer
• system........................... 9,000.00
Legal services....................... 5,000.00
Assessor, Clerk and Stenographic services .............................. 5,000.00

In case term No. 2, the court, after finding in its decree that the contract had been entered into, the services rendered, an ordinance passed for the improvement in accordance with the plans, specifications and estimates of cost, providing that the whole cost thereof be paid for by special assessment, that no appropriation had been made by the city for said services and that appellant had been employed to perform the services rendered but that he was not employed as a regular city engineer, entered a decree permanently restraining the city from paying appellant any further sums of money out of its general treasury and ordered the city to reimburse itself for the moneys already paid to appellant on account of services rendered in the abandoned proceeding out of a fund created by a subsequent proceeding confirmed by said court on the same day the decrees in these cases were entered.

In case term No. 1, the court, after finding that the second contract had been entered into, that the services in the new improvement had been performed and an ordinance providing for the making of said improvement, and the payment therefor by special assessment had. been passed and afterwards abandoned by the city, found that appellant was not entitled to any compensation for said services out of the general funds of the city and that the city had no power to pay appellant out of the general funds for said services, and entered a decree permanently restraining the city from paying any money out of the general treasury to appellant for his services in connection with said improvement.

Appellant has assigned as error that both of said decrees were contrary to the law and contrary to, the evidence.

Originally there were two cases, but the questions involved are practically the same in each case, so, by consent of all the parties the eases have been combined, and in discussing the case we will refer to it as a single case.

It is contended by the appellee that the city of Metropolis could not legally pay the appellant for the services he had rendered as such engineer in making the plans and specifications for these improvements for the reason that there had been no appropriation or tax levied for that purpose, prior to the time that Mr. Harper was engaged as such engineer to do the work in question.

The facts in the case are not in dispute, and the city apparently is willing to pay Mr. Harper for his services, recognizing his claim as a legal and valid claim. There is no contention that the charges that Mr. Harper has made are unjust or unreasonable. So it becomes a question whether the city in this ease has exceeded its authority in hiring Mr. Harper and whether there was any appropriation made by the city, which could legally be used for the payment for these services.

The case of People v. Clark, 296 Ill. 52, is a case in which an objection was made to the tax levy, the first contention being that the appropriation and levy is for more than one purpose without designating separately the amount for each purpose. The appropriation ordinance and tax levy ordinance of the city of Chicago contain the following: “For cleaning of streets, collection and removal of garbage, ashes and miscellaneous refuse, and for the repair of unimproved streets, sidewalks and miscellaneous street work, and for the maintenance and operation of buildings and equipment in connection therewith, $3,510.00.”

In passing on the objection the court says: “The law requiring that when a city tax is levied for several purposes the amount for each purpose shall be stated separately does not require that each particular item for which the tax is levied shall be separately stated. There is no valid objection to levying a gross sum for several different purposes where the several purposes are properly embraced within some general designation. (People v. Illinois Cent. R. Co., 271 Ill. 236; People v. Chicago & A. R. Co., 273 Ill. 452.) This court has said repeatedly that it is neither necessary nor practicable that each particular purpose for which a tax is levied be specifically stated. The statute must receive a reasonable and common-sense construction. (People v. Jackson, 272 Ill. 494.) If this appropriation had been made ‘for cleaning streets and alleys ’ it would have specified a distinct object and purpose and would have been a legal appropriation. Because the city council went further and grouped under the general heading many details embraced within the general purpose furnishes no valid ground for holding the tax levy void.”

In the same case under the heading of tuberculosis sanitarium taxes, the first item was “For 1919 maintenance and operation, $1,055,000.00.” The last item was “For infirmary building, $469,096.33.”

The objection to the first item was that the tax was levied for more than one purpose without separately designating the amount required for each purpose, and to the last item that it did not specify any object or purpose for which the city was authorized to make an appropriation or levy. The court overruled the objection to the first item and held that maintenance and operation meant the furnishing of sustenance and medical attention to the patients and otherwise caring for them. The lower court sustained the objection to the last item, but the Supreme Court overruled the trial court and held that the item was definite enough, and that it meant “for building a new infirmary” at the sanitarium. In the construction of such a building no doubt architect and other professional services would be required and their pay be considered a part of the expense of the erection of the building.

Village appropriation and levy ordinance need not give in detail each particular object for which the tax is to be extended, but it is sufficient if the object and purpose of the appropriation and the amount appropriated for such purpose is specified: “A levy of a certain sum for salaries of village officers, another sum for street and alley improvement and maintenance, another for election expenses, is sufficient. (People v. Harper, 325 Ill. 497.)”

It will thus be seen by an examination of the authorities that in making a tax levy each item need not be specifically mentioned in making an estimate, but it is proper if it naturally comes within a general class in making the appropriation. Thus in making a levy for streets, alleys and sidewalks, any item that would necessarily come within that expense would be embraced within that item and need not be specially mentioned. It then becomes a question of fact whether engineering expenses would be an item contained within the appropriation or tax levy in the city of Metropolis in 1925, and prior to the time that Mr. Harper was employed to render the service that he is now claiming pay for.

We are of the opinion that this tax levy was sufficiently definite and that engineering service could well be contemplated in doing the work of the city on its streets, alleys and sidewalks for that year, and could be paid out of the $20,000 levied for such purpose.

The appellant does not rest his case on the fact alone that there had been an appropriation made by the city of Metropolis, out of which the city could legally pay him for services that he had rendered, but does claim that the city is bound to pay him whether there had been an appropriation for that purpose or not, because he had rendered the service under a valid contract and the city had accepted the service. Therefore, the law will imply a promise and a legal obligation to pay a reasonable price for the- services so rendered. The appellees contend that the city cannot legally pay for this service because there is no fund out of which to pay the same.

The case the appellees rely upon as sustaining their contention is De Kam v. City of Streator, 316 Ill. 123.

In this case the City of Streator entered into a contract with Clausen for the purpose of designing a sewage system for the City of Streator, and reporting a plan to the city council whereby the sewage system could be improved. There was no provision for payment for Clausen’s work, so evidently the city expected him to be paid out of the general funds of the city.

The contract on its face shows that it was an illegal contract that the city council of Streator had no authority to enter into such a contract because there was no appropriation from which to pay for this service. This contract was subsequently ratified and somewhat modified by the succeeding city council. Clausen made the surveys and finished his work and presented his bill to the city council for payment. De Kam and other taxpayers of the City of Streator filed their bill in their own behalf and other taxpayers to restrain the City of Streator from paying Clausen the amount that he claimed was due on this contract.

The court held that this contract was invalid and could not be ratified, since there was no appropriation made to pay for the service prior to the time the indebtedness was incurred, and, also, that the city had no right or authority to pay Clausen for the services that he had rendered.

In this case the city of Metropolis entered into a valid contract with Mr. Harper to render the service that he had performed. It is provided in the contract and also in the ordinances that were passed by the city council in approving the plans and specifications that Mr. Harper had presented that Mr. Harper should be paid, not out of the general funds of the city, but wholly from a special assessment fund. All of the ordinances in question that were passed by the city council had reference to the services rendered by Mr. Harper and were similar in this respect, namely, that Mr. Harper was to receive pay solely from the special assessment fund. Our courts have held that such contracts are valid, and when the special assessment fund has been collected, then all the expenses provided to be paid out of said special assessment, must be paid from this fund. (People v. Village of Hyde Park, 117 Ill. 462; Dolese v. McDougall, 182 Ill. 486-494; Midland Lumber Co. v. Dallas City, 276 Ill. 172; City of Chicago v. Thomasson, 259 Ill. 322; Barber Asphalt Paving Co. v. City of Chicago, 139 Ill. App. 121.).

In the case of Cage v. Village of Wilmette, 230 Ill. 428, at page 435, the court after deciding that the expenses of maintaining the board of local improvements could not be paid out of the special assessment, further say: “If, however, a person who is not a regular employé of the city or village should be hired to do special work on a particular improvement, doubtless, under this law, he could be paid for his work from that special assessment. For example, if a village does not have a regular engineer employed at a stated salary, such a man might be hired and paid for his special work on the improvement out of the funds raised by that assessment. This is in harmony with the views expressed on this subject in Gault v. Village of Glen Ellyn, 226 Ill. 520.”

In the case of Maher v. City of Chicago, 38 Ill. 266, Maher had entered into a contract with the city of Chicago to do some work and was to be paid wholly out of the special assessment fund to be levied against the property for that purpose, but it was found that the special assessment could not be legally levied. It was held that the city would not be permitted to secure work to be done on faith of a special assessment and then avoid payment by setting up that it had no power to levy it. If it could not do what it had undertaken to do, it was bound to compensate the injured party. City of Chicago v. DeGolyer, 48 Ill. 416.

In the case of the City of Chicago v. People ex rel. Norton, 56 Ill. 327, a similar question was involved, the assessment fund failed. The court held that the city could not evade its liability on that ground and should pay for the services that they had accepted the benefit of.

The ease of Gray v. City of Joliet, 287 Ill. 280, seems . to be squarely in point with the case at bar. In the Joliet case, Gray was appointed by the mayor of the city to prepare two assessment rolls. A hearing was had in the county court on the assessment roll and the proceedings were dismissed by the city. For spreading the assessment and preparing the roll for the proposed improvements Gray was to be paid out of the fund derived from the special assessment. He was not so paid. He brought his action in assumpsit for the amount he claimed due for his services in preparing these assessment rolls. The court in passing upon this case after a review of numerous cases conclude with saying: “Without extending this discussion further, it is our conviction that while a city having a population of less than 100,000 may by ordinance, * * * provide for the payment of the expense of levying an assessment from the fund produced by levying it, it cannot relieve itself from liability to pay the reasonable expenses incurred where the city itself voluntarily abandons and dismisses the proceeding before judgment of confirmation.”

What the Supreme Court say in their discussion of the Gray case seems to us to be wholly applicable to the facts and law in the case at bar.

In the Joliet case Gray was lawfully appointed to spread this assessment roll, and agreed to take his pay from the fund derived from the special assessment, but the city council by their own act destroyed the fund from which he should be paid. In the case at bar the city of Metropolis entered into a lawful contract with Harper to render the service he performed, and he agreed to-look wholly to the special assessment fund for his pay, but the city of Metropolis, by their city council, has destroyed the fund and made it impossible for Harper to receive his pay from that fund. No appropriation need be made prior to the execution of the contract between the parties when the contract itself show that payment shall be made from proceeds of the' special assessment fund.

Mr. Harper and the city of Metropolis, each acted in good faith in all of their transactions. The city has received and accepted the benefits of the services rendered by Mr. Harper and should not be enjoined from paying him for the same.

We do not deem it necessary to discuss the other points raised by the appellant, as we think the points decided dispose of the others raised by him in his brief and argument.

The judgment of the circuit court of Massac county, in each of these cases, is hereby reversed and the cause remanded, with directions to dissolve the injunction and dismiss the bill for want of equity.

Reversed cmd remanded with directions.


text:
    Ella Stuckek, Appellee, v. Rudolph Stuckek, Appellant.
    Opinion filed July 16, 1928.
    J. E. Carr, for appellant.
    George B. White, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On June 4, 1924, Ella Stuekek, the appellee," in the Williamson county circuit court filed her bill for divorce from Rudolph Stuekek, the appellant. The bill charges the appellant with extreme and repeated cruelty, and other statutory causes for divorce. The bill alleges that the parties were married on July 5, 1920, and ceased to live together as husband and wife on February 15,1924, due to the misconduct of the appellant. The allegations of the bill relative to the property owned by the appellant and the amount and source of his income were substantially as follows: That appellant owns jointly with appellee a house and lot in the city of Johnston City, Illinois, of the value of $1,800, and that he possesses in his own right money to the amount of about $4,000; that he earns in the mines $200 or more per month; that a short time after said marriage, appellant obtained a loan from appellee in the sum of $400, which he, promised to repay out of his wages, but has failed and refused to pay any part of said money loaned to him. Appellee also represents by her bill that she is dependent upon the labor of her children for her support; that she has homestead and dower in real estate in Johnston City left by her former husband, of the value of about $1,500; that she is occupying this property as a homestead, the legal title of which is in her children. The bill prays for divorce, and that the appellant may be decreed to repay appellee such sum or sums of money as may be shown to be due from appellant as a loan to him. The bill further prays for suit money, solicitors’ fees and permanent alimony. The appellant filed an answer denying the existence of the causes for divorce alleged in the bill, admits he owned a house and lot in Johnston City, an undivided one-half of which he conveyed to appellee before their separation, denies he earns $200 each month and denies that he borrowed $400 from appellee.

Trial by jury was waived and the chancellor heard the case upon the bill and answer, and on March 25, 1926, entered a decree which finds that the equities of the suit are with the appellee, dissolves the marriage, and decrees that the appellant pay the appellee the sum of $50 allowed by the court as expense money and the further sum of $135 as solicitors’ fees and costs of suit. The decree also ordered the appellant within 30 days from the recording of the decree to execute and deliver to appellee, by good and sufficient warranty deed, all his right, title and interest in and to the real estate mentioned in the bill situated in Johnston City, and that if appellant failed, neglected or refused to execute said deed, within 30 days, that the master in chancery execute and deliver such deed.

Appellant applied for writ of error from the Supreme Court, and while that proceeding was pending in that court, the parties entered into a written stipulation which was filed in the circuit court of Williamson county. In the stipulation it was agreed that upon dismissal of the writ of error by the appellant, the case should be docketed for another trial in the circuit court; that all orders entered by the circuit court, in the case, should be set aside excepting the order,, or so much thereof, which granted the divorce, and that “a, trial may be had upon all questions arising and properly raised by the pleadings in said cause, and to the extent and as fully as though no hearing had been had thereon.”

In February, 1928, the parties appeared again before the chancellor and both sides introduced evidence pertaining to the question of allowing alimony and determining their property rights. After the conclusion of the hearing the chancellor entered a decree reciting the provisions of the stipulation and that pursuant to said stipulation said cause was again before the court for the determination of the right of the appellee to alimony and property rights. This decree recited the reason the divorce had been theretofore granted. This latter decree also finds that appellant is indebted to appellee in the sum of $430 for money loaned, and the sum of $240 for rents from property owned by both the parties as tenants in common, which the appellant had collected and appropriated to his own use ; that appellee is entitled to the sum of $500 as permanent alimony, which amount is made a lien on the real estate described in the bill, and is to be paid on or before April 1, 1928. Appellant is decreed to pay appellee the sum of $670 for money due her, and costs of suit, and that she have and recover of the appellant the further sum of $500 as alimony in a lump sum, which is ordered made a lien on said estate described in said bill. This decree is dated March 28, 1928.

Appellant relies upon the following alleged errors for a reversal of the decree entered by the trial court on March 28, 1928, namely:

1. The undisputed evidence discloses that appellee has sufficient property for her own needs, much more than appellant.

2. There are no special equities in the case to justify the awarding of alimony in gross.

3. There is in the bill of complaint no allegation and no prayer upon which to predicate the chancellor’s finding and decree that there is due appellee as rentals the sum of $240.

The evidence shows that the real estate which is owned by the parties to the suit is worth about $1,500. The real estate in which the appellee has homestead and dower is also valued at about $1,500. She also owns two lots worth $100. The appellee has $2,000 in the bank drawing interest at four per cent, and which is her only source of income not earned by her labor. Appellant has no real estate except the premises owned by himself and the appellee, which he testified was worth about $200.

As near as the court can form an opinion from the testimony of the parties, both of whom are foreign born and not versed in the American language, the appellant is able to earn $7.50 a day as wages as a timberman in the coal mines. Owing to the lack of employment, due to a coal miner’s strike, he works about one-half of the working days of the week and earns about $25 to $30 per week when employed. At the time of the separation of the parties, appellant was earning as much as $40 to $60 per week by working overtime, one-half of which, he testified, he paid to his wife. The appellee denied receiving one-half of his wages. As above indicated, it is not clear how much appellee was earning at the time the last decree was rendered-. However, the same day the former decree was entered, or very shortly thereafter, appellant remarried. In 1925 he bought a Buick automobile valued at $1,400 which he presented to his wife according to his own testimony. He has paid $700 to $800 on the purchase price of the automobile in three years. He has lived in the house owned by himself and the appellee since the separation to the time of the hearing upon the second decree, a period of four years, without accounting or paying to appellee any rent therefor.

We cannot say that the chancellor committed reversible error in decreeing that the appellant shall pay alimony in a lump sum rather than in instalments, nor do we feel that the chancellor has acted arbitrarily or unreasonably in allowing the sum of $500 as permanent alimony. Alimony is the allowance out of the estate of her husband which is made to a woman for her support when divorce is decreed and is based on the principle that the husband must furnish his wife a suitable support corresponding in degree with his pecuniary ability and social standing (Herrick v. Herrick, 319 Ill. 146). The allowance of alimony in gross is clearly within the scope of the court’s authority and the amount to be allowed and whether in money or in property, real or personal, are matters largely within the-discretion of the chancellor. (Doyle v. Doyle, 268 Ill. 96.) It has been held that under section 17 of the Divorce Act, Cahill’s St. ch. 40, ¶ 18, the court has power to grant a sum in gross in satisfaction of alimony and a portion of the husband’s real estate may be decreed to the wife. (Bobowski v. Bobowski, 242 Ill. 524, 525.) This disposes of the appellant’s first two grounds urged for a reversal of the decree.

We think the third error assigned by the appellant is well taken. There is no allegation in the bill charging that the appellant occupied the premises owned by the parties without the payment of rent or that he collected the rents therefrom and appropriated the same to his own use. Belief in equity can be granted only in accordance with the allegations of the bill, sustained by proof, and a decree cannot be rendered upon facts shown by the evidence which would warrant relief unless those facts are alleged in the bill. The court, in a divorce proceeding, under section 17 of the Divorce Act, Cahill’s St. ch. 40, 18, may compel a conveyance, upon equitable terms, of property held by one party belonging to the other, but where no such relief is prayed for in the bill and no allegations in regard to the property are made in the bill the decree is not proper as it is not based on any allegations in the bill. Lewis v. Lewis, 316 Ill. 447; Meyer v. Meyer, 255 Ill. 436, 439.

Had the bill contained proper allegations of the collection of rents by the appellant, or his occupancy of the premises without the payment of rent, appellant would have had an opportunity to show the payment of taxes, expenditure of money to make repairs, if any sums were expended by him for such purposes. (Soltysik v. Soltysik, 317 Ill. 247.)

The decree of the circuit court is confirmed, except the part thereof which finds that there is due from appellant to the appellee the sum of $240 as rent for the real estate, owned by the parties and the order directing the appellant to pay said amount to appellee and making such amount a lien on said real estate. The case is therefore reversed, in part, and the cause remanded to the circuit court of Williamson county. If the facts are such that counsel shall advise an amendment to the bill, then leave may be taken. (Roggenbuck v. Breuhaus, 330 Ill. 294.) It is ordered that each party pay one-half of the costs of the appeal.

Reversed in part and remanded.


author: Mr. Justice Boggs

text:
    Polo State Bank, Appellee, v. Harry Typer, Conservator of George W. Hey, Appellant. Polo State Bank, Appellee, v. Jennie Hey, Appellant.
    Gen. No. 7,915.
    Opinion filed July 30, 1928.
    H. A. Brooks, for appellants.
    Fred Zick and Robert M. Brand, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court. Suit was instituted in the county court of Ogle county by appellee against appellants for the determination of the rights of property. Appellee’s claim is based on a chattel mortgage, dated February 28, 1927, which recites that “Charles R. Hey, of the Town of Woo sung, in the County of Ogle and State of Illinois, in consideration of the sum of $2,100, to him paid by Polo State Bank of the County of Ogle and State of Illinois, receipt whereof is hereby acknowledged, does hereby grant, sell,” etc.,- “to the said Polo State Bank” certain described cows, hogs, horses, mules, etc. The claim of appellant Harry Typer, as conservator for George W. Hey (the father of said mortgagor), is based on a judgment against the said Charles R. Hey for $6,367.00, taken on a note for $5,200.00, dated Jan-nary 30, 1925, signed by said Charles R. Hey. The claim of appellant Jennie Hey (the mother of said mortgagor) is based on a judgment against him for $6,296.18, taken on a note for $4,800.00, dated November 28,1927.

Said trials between appellee and said respective appellants were, by agreement, consolidated and tried as one case before the court without a jury. A finding was made and judgment rendered in favor of appellee. To reverse said judgment, this appeal is prosecuted.

Counsel for appellants states in his brief and argument: “If the chattel mortgage is good, then plaintiff should prevail in this case.”

Section 1 of chapter 95, Cahill’s Statutes, provides as follows:

“That no mortgage, trust deed or other conveyance of personal property having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this Act, be deemed a chattel mortgage.”

That the mortgage here in question complies with the above requirements is practically conceded by counsel for appellants. It is insisted, however, that said mortgage is void because it does not state the date of maturity, whose note is secured, who the maker or payee is, or what amount, if any, the mortgagor owes the mortgagee.

Where a chattel mortgage is otherwise sufficient and regular, it is not necessary to its validity that the time ' of maturity of the indebtedness secured thereby be stated. Farrar v. Payne, 73 Ill. 82-88; Peck v. Logsdon, 84 Ill. App. 420-423. In Farrar v. Payne, supra, the court, in discussing a question of this character, at page 88 says:

“Of a similar nature is the objection that the trust deed did not mention the time of payment of the note, and subsequent purchasers of the equity of redemption could not know that the note was due; but that could have been ascertained, if needed, by resort to Gibbons, the holder of the note. On its production, the note appears to be one payable one year and ten days after its date.”

The note secured by the mortgage here in question, omitting the provision with reference to judgment by confession, is as follows:

“$2,100.00 Polo, Illinois, Feb. 28, 1927.

“One year after date, I, or we, or either of us, promise to pay to the order of POLO STATE BANK Twenty-one Hundred Dollars, value received, with interest at 7 per cent per annum, payable semi-annually from date until paid. * * *

“This note is secured by chattel mortgage of even date.”

Said mortgage, among other things, provides: “That if said mortgagor shall well and truly pay unto the said mortgagee one note of even date herewith, for the principal sum of $2,100, bearing interest from date at 7% per annum, the said note stating on its face that it is secured by a chattel mortgage. Then this mortgage is to be void, otherwise to remain in full force and effect. * * * And the said mortgagor hereby covenants and agrees that, in case default shall be made in the payment of the note as aforesaid, or any part thereof, or the interest thereon, on the day or days which the same shall become due and p.ayable; or if the mortgagee shall feel itself insecure,” etc., then that appellee might take possession of and sell said mortgaged property. This language was sufficient to give notice to third parties of an indebtedness of the mortgagor to the mortgagee; that said indebtedness was represented by a note of even date therewith for the principal sum of $2,100.00, with interest, and that, if said note or the interést thereon, were not paid when due, the mortgagee had the right to foreclose said mortgage to enforce payment thereof.

It is insisted by appellants that, the statute with reference to chattel mortgages being in derogation of the common law, the doctrine of constructive notice does not apply as in other cases. Numerous authorities were cited in support of this proposition. An examination of these authorities will disclose that the facts involved were not similar to the facts in this case.

In Battenhousen v. Bullock, reported in 11 Ill. App. 665, and 108 Ill. 28, cited by appellants, the chattel mortgage failed to state the amount of the note or indebtedness sought to be secured. At page 36, the Supreme Court says: “If a mortgage is given to secure an ascertained debt, the amount of that debt-should be stated, and if it is intended to secure a debt not ascertained, such data should be given respecting it as will put anyone interested in the inquiry upon the track leading to a discovery.”

The recitals of the mortgage here in question were sufficient “to put anyone interested in the inquiry upon the track leading to a discovery” as to when the indebtedness secured would mature.

The opinion in Jones v. Noel, 38 Ill. App. 374, states that a chattel mortgage, to be valid as against third parties, must show the time of the maturity of the indebtedness secured thereby, and in effect supports the contention of appellants. This case was appealed to the Supreme Court, and is reported in 139 Ill. 377. While the judgment was affirmed, an examination of the opinion of the Supreme Court discloses that the failure of the mortgage to state the time of maturity of the indebtedness had nothing to do with the decision of the case. The case was affirmed on an entirely different theory, and the question with reference to the maturity of the indebtedness was not discussed. In certain of the cases cited by counsel, the mortgages were held invalid as against third parties for the reason that the amount of the indebtedness secured was not stated, or because of a misdescription of the property, or a failure properly to acknowledge the mortgage-all being questions not applicable to the record in this case.

In Dunn v. Burk, 139 Ill. App. 12, the court at page 14 says: “While the Bagley trust deed was deficient in not setting forth with due particularity the amount of the four notes in the description of them, yet we are inclined to the opinion that the consideration of twelve hundred dollars recited in the trust deed was sufficient to put all persons acquiring interests in or claims against the real estate conveyed upon notice that the trust deed at least inferentially created a lien to the extent of the recited consideration until the contrary could be ma'de to appear by an examination of the notes insufficiently described in that instrument. In conveyances of the nature of the trust deed here challenged the indebtedness secured is by custom prevailing in this jurisdiction uniformly identical with the amount of the expressed consideration. The failure to recite the amount of the four notes was so clearly a mistake that in view of the other recitations of the trust deed, parol evidence was properly permitted to supply such evident defect.”

As a general proposition, whatever is sufficient to put a party upon inquiry which would lead to the truth is in all respects equal to and must be regarded as notice. Chicago, R. I. & P. R. Co. v. Kennedy, 70 Ill. 350-362; Russell v. Ranson, 76 Ill. 167-171; Blake v. Blake, 260 Ill. 70-75. One having notice of such facts as would put a prudent man on inquiry, is chargeable with the knowledge of other facts which he might have discovered by diligent inquiry. Morrison v. Kelly, 22 Ill. 610-624; Ogden v. Haven, 24 Ill. 57-59; White v. Kirby, 42 Ill. 510; Henneberry v. Morse, 56 Ill. 394-396; Harper v. Ely, 56 Ill. 179-194; Slattery v. Rafferty, 93 Ill. 277-288; Parker v. Merritt, 105 Ill. 293-300; Harris v. McIntyre, 118 Ill. 275-283; Chicago & E. I. R. Co. v. Wright, 153 Ill. 307-311.

In 11 Corpus Juris, 474, section 105, the author, in the chapter on chattel mortgages, says: “All the particulars of a note secured need not be stated in the mortgage if enough is given to identify it with reasonable certainty.”

The provisions of the mortgage in question were notice sufficient to put interested third parties on inquiry as to the rights of appellee under the same.

It was also contended by counsel that, to enforce the doctrine of constructive notice would be to require interested third parties, in many cases, to ascertain the facts with reference to maturity, payments, etc., from indorsees of the various notes secured by such mortgages ; that such notes in the course of business might be scattered throughout the country, making it practically impossible for such third parties to protect themselves. This point is not well taken. Notes secured by chattel mortgage, to be valid in the hands of an indorsee, must state on their face that they are secured by chattel mortgage, and they are incapable of assignment so as to cut off equitable defenses of the maker. They are therefore not the type of negotiable paper which is largely dealt in. In this particular case, there was but one note, and it was held by appellee, the mortgagee.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Farmers State Bank of Princeville and A. B. Debord, Trustee, Appellants, v. Milton Fast and Allen C. Fast, Appellees.
    Gen. No. 7,934.
    Opinion filed July 30, 1928.
    Mansfield & Cowan and George J. Jochem, for appellants.
    Leon E. Sutherland and Todd, Morgan, Pendarvis & Arber, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.

A bill was filed in the circuit court of Peoria county by appellants against appellees for the foreclosure of a trust deed on certain real estate, given to secure the payment of eight promissory notes. All of said notes were dated December 12, 1924, signed by appellee Milton Fast, and due and payable five years after date.

An answer and a replication were filed and the cause was referred to the master to take the evidence and to report the same, together with his conclusions of law and fact. The master took and reported the evidence, with his conclusions. Objections and exceptions were filed to said report, and on the hearing on said exceptions, the court dismissed said bill for want of equity. To reverse said judgment or decree, this appeal is prosecuted.

Certain amendments were made to the bill of complaint, and certain exceptions were filed to said answer which it will not be necessary for us to go into. On the record as it now stands, the principal question raised by the assignment of errors is as to whether at the time said bill was filed, there had been a default in the payment of interest, rendering said trust deed subject to foreclosure. The trial court held that, under the terms of said notes and trust deed there had been no breach, authorizing a foreclosure.

The notes in question were all of like character, seven of the notes being for $2,000 each and the eighth note being for $975.57. The $2,000 notes were each in the following form:

“$2,000.00 PrinceviUe, IlUnois, December 12,1924.

“Five years after date I promise to pay to the order of Myself Two Thousand and No/100' Dollars at Farmers State Bank of PrinceviUe, Illinois. - Value received with interest at 7 per cent per annum.

MILTON FAST.”

Each of said eight notes was indorsed: “Milton

Fast. ’ ’

It is the contention of appellants that a proper construction of said notes requires the payment of the interest thereon annually, while appellees insist that the interest is not due and payable until the maturity of said notes.

The exact question raised on the assignment of error with reference to whether or not the interest provided to be paid by said notes was to be paid annually or at the time of the maturity thereof, has not been passed upon by our courts. The case nearest in point is Illinois Nat. Bank v. Trustees of Schools, 211 Ill. 500. The court there had before it the following note:

“13,000.00 Farmersville, Ill., July 2,1897.

“Five years after date I promise to pay to the order of the trustees of schools of town 12, range 5, thirteen thousand dollars, for value received, payable at the Farmersville Bank, with six per cent interest from date, with the privilege of paying one or more thousand at interest date.”

The question was raised there as to whether or not the interest specified was to be paid annually or at the maturity of the note. In discussing this question, the court at page 505 says:

“There is force in the contention of counsel for appellants that on the face of the note the interest did not fall due until the maturity of the note, and if the question had been properly raised and preserved in the circuit court we would be disposed to so hold. Without the language ‘with the privilege of paying one or more thousand at interest date,’ there could reasonably be no other contention. That language does not fix the date when interest shall be payable, and would be just as consistent with a claim that the interest was payable semi-annually, or every two years, as that it was payable annually.”

Counsel for appellants insist that under the provisions of Cahill’s St. ch. 74, If 9, the note in question should be construed as requiring the interest to be paid annually. That section is as follows:

“Whenever, in any statute, Act, deed, written or verbal, contract, or in any public or private instrument whatever, any certain rate of interest is or shall be mentioned, and no period of time is stated for which such rate is to be calculated, interest shall be calculated at the rate mentioned, by the year, in the same manner as if ‘per annum’ or ‘by the year’ had been added to the rate.”

The.Supreme Court, however, in Illinois Nat. Bank v. Trustees of Schools, supra, held that said statute does not add to the construction, but that “it simply fixes the rule for computing the rate of interest, but does not purport to fix the date at which it shall be payable.”

Appellants further contend if it should be held that said notes, standing alone, do not require payment of the interest until their maturity, that said notes and trust deed, having been executed at the same time, should be construed together; that so construed, the interest would be payable annually. The language of the trust deed relied on is as follows:

“Now, if default be made in the payment of the said eight promissory notes or any part thereof, or the interest thereon or any part thereof, at the time and in the manner above specified for the payment thereof, etc., or in case of waste or non-payment of taxes and assessments on said premises, etc., * * * or a breach of any of the covenants or agreements herein contained, then in such case -the whole of said principal sum and interest secured by the said eight promissory notes shall thereupon, at the option of the legal holder or holders thereof,- become immediately due and payable.”

This language does not fix or specify the time when the interest on said notes becomes due and payable. Illinois Nat. Bank v. Trustees of Schools, supra, 505. To adopt the construction contended for, the court would have to read into said notes and trust deed matters not therein contained.

In Will of Payne, 171 Wis. 608, the court in discussing a matter of this character, at page 613 says:

“Where a contract provides for the payment of a certain rate of interest per annum, it only fixes the rate to be paid and has no reference to the time when such interest shall be paid, and interest so reserved is held to become due and payable only with the principal.”

In Bamsdell v. Hulett, 50 Kan. 440, the court had under consideration the following note:

“$2,750.00 Topeka, Kansas, April 4, Í887

‘ ‘ On or before three years after date, we promise to pay to the order of K. W. Bobbins twenty seven hundred fifty 00/100 dollars at the First National Bank, Russell, Kan., value received, with interest at 8 per cent, per annum after date until paid.

J. T. Ramsdell Mary F. Ramsdell.”

Indorsed: “K. W. Robbins, J. L. Starkweather. June 14th 1888. Received on the within note the interest up to April 4th, 1888.”

At page 443, the court says:

“The mortgage securing the note, and referred to in the cross-petition contained the following condition: ‘But if said sum or sums of money, of any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum or sums and interest thereon shall and by these presents become due and payable, and said party of the second part shall be entitled to the possession of said premises.’ * * *

“The first point made is that the cross petition did not state facts sufficient to constitute a cause of action against the plaintiffs in error. The point is made that the note and interest did not mature until the 4th day of April, 1890, three years from the date of the note; that the cross petition showed upon its face that there was nothing due tipon the note and mortgage, and that the court had no authority to render judgment upon the same a month before it was due. * * * The last clause in the note reads: ‘With interest at 8 per cent, per annum after date until paid.’ * * *

“It is contended by the defendant in error that this clause made the interest payable annually, and a default in its payment made the whole sum due; that ‘per annum’ and ‘annually’ mean the same. Strictly speaking, the words ‘per annum’ mean ‘by the' year,’ or ‘through the year.’ But we must construe the note as an entirety. It is a promise to pay a stated sum of money, with the interest thereon at 8 per cent, per annum. This, we think, means that the principal and interest are due and payable at the same time. * * *

“We are of the opinion that by the terms of the note and mortgage no part of the interest became due until • the maturity of the note, and that it was error upon the face of the record for the court to render judgment for the debt before the note became due.”

In Koehring v. Muemminghoff, 61 Mo. 403, the court at page 406 says

“In the note under consideration, the promise in the note was to pay the sum of money named ‘with interest from date at the rate of eight per cent, per annum,’ five years after the date of the note. No different time is fixed for payment of the interest from that fixed for the payment of the principal secured to become due by the note. In such a case, both principal and interest become due at the same time; in fact the promise plainly is to pay the principal, with the interest, five years after the date of the note. The words ‘with interest at the rate of eight per cent, per annum, ’ only fix the rate of interest to be calculated on the note, and have nothing to do with the time that it shall be paid. (1st Am. Lead Cas. 614; Cooper, adm’r v. Wright, 3 Zab. 200; Bander v. Bander, 7 Barb. 560.) ”

In Bander v. Bander, 7 Barb. (N. Y.) 560-562, the court held:

“If the contract contains an agreement for the payment of interest, but is silent as to the time when it is to be paid, the interest is not payable until the principal debt becomes due. ”

In Roberts & Brooke v. Morsell, 10 Md. 32, the court at page 38 says:

“The appellee claims interest upon principal before it came due. This is in opposition to the general principle of law, which does not give a right to demand interest until the principal is payable, unless there is a contract conferring such right.

“The general rule is that interest becomes due and payable at the same time that the principal becomes due and not before; but this rule is subject to be varied by the contract of the parties, * * *. Where the contract provides for the payment of a certain rate of interest ‘per annum,’ it only fixes the rate to be paid and has no reference to the time when such interest shall be paid, and consequently interest so reserved becomes due and payable only with the principal.” 22 Cyc. 1482-1483.

Counsel for appellants cite and rely on Walker v. Kimball, 22 Ill. 537, and Kurz v. Suppiger, 18 Ill. App. 630, as sustaining their position that the notes in question should be construed as providing for the payment of interest annually.

In the Walker v. Kimball case, the court had before it a contract containing the following: “Said Walker and Moore agree to pay, within three years from this date, to said Kimball, the sum of thirteen thousand one hundred and sixty-six dollars, with interest annually at ten per cent.”

It was there held that the interest was to be paid annually.

In Kurz v. Suppiger, the note under consideration contained this provision: “With eight per cent, annual interest from date until paid.” The court held that the interest was to be paid annually.

The language used in the two cases relied on is quite different from the language used in the notes here involved. The notes in the cases cited provided, in the one for the payment of “annual interest,” and in the other, for “interest annually.” The notes here involved, under the authorities above cited, merely provided for the measure of the interest to be paid, at a certain rate “per annum,” but did not fix a time at which such interest was to be paid.

Clearly, under our own Supreme Court holding and the holding in the cases cited from other States, said interest was not payable until the maturity of said notes. That being trué, the court did not err in dismissing said bill. It is therefore not necessary for us to go into a discussion of the other questions raised by the assignment of errors.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.