author: Mr, Presiding Justice Jétt

text:
    R. P. Smith & Sons Company, appellee, v. Z. Twyman, appellant.
    Gen. No. 7,777.
    Action for goods sold and delivered. Judgment for plaintiff. Appeal from the Circuit Court of Warren county; the Hon. Willis F. Graham, Judge, presiding.
    Heard in this court at the April term,
    1927.
    Affirmed.
    Opinion filed January 23, 1928.
    Charles E. Lauder and Frederick H. Lauder, for appellant.
    Hanley & Cox and Murphy & Kritzer, for appellee.
   Mr, Presiding Justice Jétt

delivered the opinion of the court,


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Michigan Central Railroad Company, appellee, v. Peoria & Pekin Union Railway Company, appellant, and Harry I. Battles, receiver, operating Peoria Railway Terminal Company, defendant.
    Gen. No. 7,817.
    Assumpsit for burned freight ears. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1927. Reversed and remanded.
    Opinion filed January 23, 1928.
    Rehearing denied and opinion slightly modified March 2, 1928.
    Barnes, Magoon & Horton, for appellant. Quinn & Quinn, for appellee.
    Frank T. Miller and Bruce E. Dwinell, for receiver.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Fred C. Shank, appellee, v. The Village of Tampico and Olive Howland, appellants.
    Gen. No. 7,826.
    Petition to compel removal of obstruction from public way. Judgment for petitioner. Appeal from the Circuit Court of Whiteside county; ,the Hon. Neis A. Larson; Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 23, 1928.
    J. J. Ludens and Jacob Cantlin, for appellants.
    McCalmont & Ramsay and McMahon & Bell, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    British America Assurance Company, appellee, v. Illinois Underwriters Corporation, appellant.
    Gen. No. 7,845.
    Action to recover settlement paid on insurance loss. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. Joseph E. Daily, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 23, 1928.
    Charles C. Diekman, for appellant.
    Dailey, McCormick & Radley and Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, Robert N. McCormick and Samuel Levin, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Henry Fritzinger, appellant, v. Michael Heldenmaier, appellee.
    Gen. No. 7,861.
    Bill Tor injunction against maintaining a nuisance. Dismissed for want of equity. Appeal from the Circuit Court of Woodford county; the Hon. Stevens R. Baker, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 23, 1928.
    George W. Sprenger, for appellant.
    C. R. Birkett, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    B. L. Hulsebus, appellant, v. C. J. Sammis, appellee.
    Gen. No. 7,855.
    Suit to foreclose mechanic lien. Dismissed for want of equity. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 30, 1928.
    Roscoe Herget, for appellant.
    Covey, Campbell & Covey, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Jett

text:
    The People of the State of Illinois ex rel. G. G. Luthy, appellee, v. Emil C. Wetten, appellant.
    Gen. No. 7,783.
    Petition for leave to file information testing authority of association president. Judgment of ouster. Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed February 11, 1928.
    Quinn & Quinn and Wetten, Pegler & Dale, for appellant; Charles V. O’Hern and James P. Haffner, of counsel.
    Henry E. Pratt and McGrath & Stone, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    William H. Winget, appellee, v. George W. Chessman, appellant.
    Gen. No. 7,790.
    Action for personal injuries suffered in automobile collision. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. Joseph E. Daily, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed February 11, 1928.
    Clarence W. Heyl and Harry C. Heyl, for appellant; Heyl & Heyl, of counsel.
    E. V. Champion and S. F. McGrath, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Cecelia Voegele and Hugo Voegele, appellees, v. John Zerwekh, Jr., appellant.
    Gen. No. 7,732.
    Action to collect on guaranty of rent. Judgment for plaintiffs. Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 23, 1928.
    Rehearing denied May 1, 1928.
    George J. Jochem, for appellant.
    Sucher & Moore, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Third District.
    Millard F. Dunlap, appellee, v. James M. Myers et al., appellants.
    Gen. No. 8,124.
    Bill for accounting, reformation of real estate mortgage, and foreclosure. Decree for complainant. Appeal from the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding.
    Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed November 21, 1927.

      L. O. Vaught, for appellants.
    John J. Reeve, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    George J. Simon, appellant, v. Fairmount Jockey Club, appellee.
    Assumpsit to recover amount lost on horse race betting. Judgment for defendant. Appeal from the Circuit Court of Madison county; the Hon. Henry G. Miller, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Bandy & Forth, for appellant.
    Kramer, Kramer & Campbell, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Mike Carton, appellee, v. John Wezalis, appellant.
    Action to recover damage to automobile from backing autotruck. Judgment, for plaintiff. Appeal from the City Court of West Frankfort; the Hon. J. P. Mooneyham, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    J. E. Carr, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Barry

text:
    D. C. Crawford, appellant, v. Cora Murray et al., appellees.
    Action on promissory notes. Judgment against plaintiff. Appeal from the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    J. E. Carr, for appellant.
    White & Quindry and Ray Henson, for appellees.
   Mr. Justice Barry

delvered the opinion of the court.


text:
    Godfrey-Gallen Garage and Filling Station, Inc., appellant, v. The Importers & Exporters Insurance Company of New York, appellee.
    Action on fire insurance policy on furniture and machinery. Judgment for defendant. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this, court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    M. V. Joyce, for appellant.
    Farmer & Klingel, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Larkin F. Brooks, administrator, plaintiff in error, v. Missouri Pacific Railroad Company, defendant in error.
    Action for death by wrongful act in failing to provide bridge with guardrails resulting in the death of child of tender years. Judgment for defendant. Error to the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    A. D. Morgan and E. M. Spiller, for plaintiff in error.
    Whitnel & Browning and White & Colp, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    Frank Tomzik, by William Tomzik and Sophie Tomzik, appellant, v. Robert Sculley, appellee.
    Action to recover for personal injuries to child of tender years from automobile. Judgment for defendant. Appeal from the City Court of East St. Louis; the Hon. J. P. Mooneyham, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    J. E. Carr, for appellant.
    G. A. Hickman, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Newliall

text:
    Hog Haven Farms, Inc., appellee, v. Indiana Truck Company, appellant.
    Assumpsit for nondelivery of automobile truck. Judgment for plaintiff. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and cause remanded.
    Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.
    W. F. Mayer, for appellant.
    Whitnel & Browning, for appellee.
   Mr. Justice Newliall

delivered the opinion of the court.


text:
    The People of the State of Illinois, appellee, v. Al Kruger, alias Al Bodman, appellant.
    Bastardy proceedings. Judgment of filiation. Appeal from the County Court of Madison county; the Hon. Wilbur A. Trares, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Harry Faulkner, for appellant.
    Boscoe Forth, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Henry Wardein and Henry J. Wardein, Jr., plaintiffs in error, v. Euphrasia D. Quintal, defendant in error.
    Action for personal injuries from automobile collision. Judgment for plaintiff. See 244 Ill. App. 664. Error to the City Court of Alton; the Hon. L. D. Yager, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    J. P. Streuber, for plaintiffs in error.
    Wm. P. Boynton, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    James F. Moore, appellee, v. East St. Louis & Suburban Railway Company, appellant.
    Action for injuries to driver of automobile colliding with electric interurban car. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and cause remanded.
    Opinion filed January 20, 1928.
    McGlynn & McGlynn, for appellant.
    Farthing & Farthing, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Plato McCourtney, plaintiff in error, v. Levi Billington et al., defendants in error.
    Suit to foreclose mortgage on real estate. Judgment for defendants. Error to the Circuit Court of Pope county; the Hon. A. E. Somers, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Noah Gullett, for plaintiff in error.
    B. F. Anderson and John W. Browning, for defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    S. E. Phelan, appellee, v. Zwick Mercantile Company, appellant.
    Assumpsit for damage from breach of employment contract. Judgment for plaintiff. Appeal from the Circuit Court of Franklin county; the Hon. J. C. Kern, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and cause remanded.
    Opinion filed January 20, 1928.
    H. F. Knox, for appellant.
    Hart & Hart, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    The First National Bank of Tamaroa, Illinois, appellant, v. D. D. Hickman et al., appellees.

    Creditor’s bill in aid of execution. Dismissed for want of equity. Appeal from the Circuit Court of Perry county; the Hon. Henry G. Miller, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    H. H. Kimmel, for appellant.
    W. O. Edwards, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Taylor

text:
    Emil F. Ackerman, Appellee, v. John H. Bickley, Appellant.
    Gen. No. 31,899.
    Opinion filed February 23, 1928.
    Edwin Terwilliger, Jr., for appellant.
    C. W. Shaeeeer, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by John H. Biekley, the defendant, from an order of the court confirming a judgment by confession, in the municipal court, in favor of the plaintiff and against the defendant in the sum of $6,383.16.

The judgment by confession was entered on July 15, 1926, on three judgment notes, each dated November 8, 1921, and signed by the defendant, John H. Biekley, two being for $2,000 each, and one for $850, all payable 60 days after date, to the order of Emil F. Ackerman, the plaintiff. Each note provided for $200 attorney’s fees.

On July 23, 1926, an order was entered opening up the judgment and giving the def endant leave to appear and make a defense, the judgment to stand as security. It also ordered that an affidavit filed by the' defendant stand as his affidavit of merits.

It is alleged in the defendant’s affidavit that during the month of November, 1921, he and the plaintiff Ackerman were engaged in the business of constructing buildings for sale; that on or about November 8, 1921, they were indebted to divers people in a sum upwards of $4,800 for building materials and supplies furnished to them; “that several of said bills, amounting to upwards of $4,800, were past due”; that the defendant and the plaintiff were unable to pay them; that the plaintiff suggested to the defendant that he execute and deliver to him, the plaintiff, notes in the sum of $4,850, and that he, the plaintiff, would negotiate a loan for $4,850 on the notes, “which money was to be used for the purpose of paying the obligations of the partnership then existing between the defendant and the plaintiff”; that on November 8, 1921, the defendant executed three notes (being the three notes above mentioned upon which judgment was confessed); that he delivered them to the plaintiff for the purpose of negotiating a loan thereon, the proceeds of which would be used in their partnership business; that on or about November 10, 1921, the plaintiff returned the notes to the defendant, stating that he was unable to negotiate the loan, as he had contemplated; that the notes upon which the plaintiff brought suit are the notes referred to; that the defendant placed the notes in a drawer in his desk, which was located in his home at 4630 North Central Park avenue; that the desk contained the books and papers pertaining to the partnership affairs of himself and the plaintiff; that the plaintiff had access to the defendant’s desk until the time of the dissolution of the partnership; that on or about December 12,1923, an accounting was had, and the partnership was dissolved ; that at the time the plaintiff returned the notes to him, the defendant, he, the defendant, placed them in his desk, as stated; that said notes got into the possession of the plaintiff without the knowledge or consent of the defendant, and without consideration.

At the hearing upon the motion there was introduced in evidence certain exhibits and the testimony of the plaintiff Ackerman, of the defendant Bickley, and that of Edward Sager, who acted as an attorney for the defendant up to the time of the trial, and then withdrew so as to become competent as a witness for the defendant.

The plaintiff offered in evidence the three notes and his own testimony that the notes were in his possession and unpaid; that they were given to him on November 4, 1921, and rested.

He was then called by the defendant, under section 33, Cahill’s St. ch. 37, H 421, and testified as follows, that he got the notes in question, two for $2,000 each, and one for $850, on the date they bear, for releasing a trust deed which he owned of $4,500, and which was on the property known as 2605 and 2609 Lawrence avenue; that he originally became the owner of the trust deed some time in October, 1921; that he bought the property in question for $7,000 from one Tessie E, Connell; that he gave her cash and a first mortgage for.$6,500; that then he recorded the second mortgage, of which he was the owner, for $4,500. He further testified that he released the trust deed on the lots mentioned, on the date when the notes were executed, and that he got notes for releasing the second trust deed; that he sold the lots to Bicldey, and he, Bicldey, put up a building on them; that he, Ackerman, was the mason contractor — did the masonry; that he got some of his money for the masonry work; that meanwhile, he held the notes; that after he got through with the job at Lawrence avenue, he built a building at Washtenaw and Ainslie streets, on property owned by Bicldey; that after that was completed, he erected a building at Taiman and Ainslie; that he then built an 18-apartment building for Bicldey; that he had no interest in those buildings, except that he was the mason contractor; that that was in 1921; that in 1922, he did similar work on two other buildings, which were erected for Bicldey. When asked if he had any interest in those buildings, heJ answered in the affirmative. When shown a check for $1,880, dated October 15,1921, he was asked what Biekley gave him the check for, and he answered that he could not tell without looking at his books.

At that point in the trial, Sager, who was then acting as attorney for the defendant, stated to the court that his position was that Ackerman and Biekley' were partners and the notes in question were used for erecting buildings.

At a later hearing, Ackerman testified that he had the books or records showing the account with Bicldey, and when asked to turn to the records showing* the account of $4,850 for the three notes that were given, he answered, “Why, it isn’t in this book.” He then testified that the book he had before him showed all the accounts of his dealings and transactions in the year 1921; that it showed all the moneys due him and all the moneys he owed other people, When asked if there was an account in that book in the sum of $4,850, covering the three notes in question, he answered, “No, there is no record of notes, exactly * * * because this was a separate transaction from my contract.” The three notes were given to Biekley for a trust deed which was delivered canceled by one Snydacker. He further testified that in the year 1921 he carried an account at the Second Citizens Bank; that about the time in question, he borrowed $4,000 on the trust deed and notes executed by Biekley and his wife, and given to him for property at Lawrence avenue; that he paid the bank by a certificate on the contract, which he had on the property; that he gave the order to one Gardner, vice president of the bank, to have the trust deed taken over to the Boulevard State Bank and collect the $4,500 on the trust deed; that “he gave them a release deed, but it was taken out of my contract on the building”; that he had one Snydacker cancel the trust deed. He further testified that “Mr. Biekley went over with me and endorsed the note and then afterwards he made a loan on this property and they would not pay out on the loan until this trust deed was released on this property, and Mr. Biekley gave me another trust deed on another piece of property which I should take over to Mr. Gardner, the vice president, and have exchanged for this other one, which Mr. Gardner refused to do. I have the trust deed in my possession, and then there was no other way to do but I would have to — . Mr. Biekley gave me an order of $5,000 on my contract on that building I got. They gave me $500 out of it and they kept the $4,500 to give to Mr. Gardner when he presented it canceled, that is the trust deed, which they did, and my records and certificates here show that I got $5,000 and I would not let them to release that trust deed until I had secured something from my property and that is what I got; I got those three notes”; that according to his recollection, the three notes were made out to the bank; that the trust deed was canceled on or about that date, the eighth day; that he did four or five jobs for Bickley after the notes were given; that he has no record in his book showing the account between him and Biekley from November 1, 1921, until he ceased doing business with him; that he has no account in his books showing the transactions, merely that the book shows money that he received and money that he paid out in his own contracting business; that he did not keep any record of transactions similar to the three notes of $4,850; that his book merely showed money received and money paid out. When asked, when he presented the last statement, whether it included the $4,850, he answered, “Well, that was never included in my account with him because it was a separate and distinct proposition”; that it was not included in any moneys that Biekley owed him-on buildings; that it was not in his book because it had nothing to do with his contracting business; that he kept no other book. When asked if he ever presented Biekley with a statement for the $4,850, and-was handed a paper by counsel for the defendant, he answered, “Tes, this is a statement he had given me at the time when a certain building was sold and he tried to wipe this statement out by giving me mortgages or notes on it.” When asked if he had an interest in the building at Irving Park and Spaulding, he answered that he merely had an interest in the proceeds of the sale of the building. When 'asked if he was then interested with Biekley in that particular venture as a partner, he answered, “I was interested with him in buildings merely for the fifty-fifty split of the proceeds after all expenses had been paid”; that the same was true of the property at Washtenaw and Lawrence avenue; that it was understood that he was to “get fifty-fifty of the sale of the building; the profits of the buildings after they were sold and all expenses had been deducted, but there was no partnership agreement as to general contracting. I carried on my own business. ’ ’ When asked whether he remembered being at Sager’s, the attorney’s, office, in December, 1923, having with him an agreement of partnership, which Sager canceled and turned over to him, he answered that he never had an agreement with him when he was in Sager’s office; that on a certain day he agreed to pay Sager $500; that he, the witness, did not have with him the instrument that Sager turned over to him marked canceled; that he does not remember what became of it; that he has looked through his papers and cannot find it; that there never was any such instrument.

On the other hand, it is the evidence of Biekley that he and Ackerman, on September 1, 1921, entered into a written copartnership agreement, which he, Biekley, wrote, and that it was canceled in December, 1923, when a settlement of the partnership was made at the office of Sager, the attorney; that Ackerman was then present; that there was an accounting of all their differences and a balance struck at that time.

The evidence of Sager (who had previously withdrawn as attorney) is that in December, 1923, Ackerman and Biekley called at his office and said they were desirous of dissolving a partnership which had been in existence since 1921; that Biekley presented the partnership agreement which he said he drew up; that Biekley said that they had constructed several buildings after the partnership was started and had sold all of them, and that there was a loss of about $30,000; that he had held title to all the buildings and had represented himself to the different parties as the owner and that he did not want Ackerman, who had been a silent partner all the time, to stand any of the loss, and that he would assume all the obligations, which amounted at that time to $30,000.

Sager further testified that Biekley, Ackerman and he, in his office, went to work; that Ackerman presented a lot of bills that he had paid and payments that he had made, and accounts; that Biekley presented a statement of account showing items that had been charged to him for the purchase of different things; that he presented statements of “prorations” and sales of buildings showing what the buildings cost and what they sold for; that after about three days’ work at his office, Biekley said he would assume all the obligations, on the condition that Ackerman would pay the sum of $500, and dissolve the partnership, the $500 to be paid to him, Sager, for legal services; that he then canceled the partnership agreement by writing on its face the date and the word “canceled,” and the cancellation was signed by Biekley and Ackerman, and the document then turned over to Ackerman; that Ackerman then gave him, Sager, a check and two notes, amounting in all to a little over $500; that the check which was for $100 or $150 was duly presented and paid, and later the notes also.

He further testified that he had, before the negotiations leading up to the dissolution and settlement, rendered services to them, not as individuals, but as partners and had been so paid for his services; that for suits started against Ackerman and Biekley, he rendered his bills to them as a partnership and was paid that way.

There is much more evidence than is here referred to, but in the view we take of ‘the case, it does not materially affect the situation. The question which first arises is whether there was a partnership at the time the notes were given, and, if there was, whether the notes were partnership matters. We think the evidence is quite overwhelming that there was a partnership and also that the notes were part of its business, and, further, that there was a settlement of them in December, 1923, at the time of the dissolution, when Sager says the partnership agreement was marked “canceled” and sanctioned by the signatures of both parties, Not only did Biekley and Sager testify to a partnership, but the plaintiff, although he denied it at first, admitted later that there was a written agreement to divide equally the profits on the sale of the buildings; that the arrangement was that he was to be the contractor on the job and do the contracting at cost, and Biekley was to do the erecting and hold the title, and when the building was sold, he, Ackerman, was to get a profit on a 50 per cent basis after all expenses were deducted; that is, he, Ackerman was to receive 50 per cent of the profit out of the building when it was sold; that that was the arrangement on all buildings.

There is considerable evidence on the subject of the various purchases of the properties and how the purchases and the cost of building were financed, but that, we think, is here immaterial. Such matters would be appropriate only in a suit in equity for an accounting. That Biekley acted as owner and Ackerman as contractor does not decide the question whether or not there was a partnership. Under the agreement that undoubtedly existed, each would be liable as a partner. As between themselves, the community of interest in the profits of operation made them partners, and subjected them to all the rights and liabilities arising from a partnership relation. Partnership Act, paragraphs 7(3), 7(4), chapter 106a, Cahill’s St. 1923. In Phillips v. Reynolds, 236 Ill. 119, the court said:

“The appellant denied the existence of any partnership, but in his testimony admitted that he was interested with Phillips in particular transactions for the purchase and sale of real estate and a division of profits. Even though no general partnership existed, this was sufficient to constitute a partnership in the particular transactions.”

Likewise in Leeds v. Townsend, 228 Ill. 451, 456, the court said:

“It is contended by plaintiff in error that the agreement did not provide for a sharing of losses, and that for that reason it cannot be held that a partnership existed. This contention is- properly disposed of by the Appellate Court under the authorities cited. In Fougner v. First Nat. Bank, 141 Ill. 124, this court said: ‘It is generally said that to constitute persons partners they must share in the profits and losses. It is, however, well settled that it is not now neceessary to show that there is an agreement to bear losses in order to make one liable as a partner. Sharing in the profits is the test.’ ”

In VanHousen v. Copeland, 180 Ill. 74, where the parties had agreed to purchase lots and erect buildings on them, and share the profits, it was held that there existed all the attributes of a partnership. To the same effect are the decisions in Winstanley v. Gleyre, 146 Ill. 27, and Morse v. Richmond, 97 Ill. 303. And in the latter case, the court held that a note signed by a trustee alone was in fact the note of the partnership, on which the others were equally liable with the trustee, or managing partner. There are many similar cases, such as Robbins v. Laswell, 27 Ill. 365; Briggs v. James H. Rice Co., 83 Ill. App. 618; Slater v. George M. Clark & Co., 68 Ill. App. 433; Wilcox v. Dodge, 12 Ill. App. 517.

Assuming, therefore, as we do, that there was a partnership, and that the notes in question came into being in the course of partnership matters, the question arises whether the plaintiff is entitled at law to sue his copartner on the notes. We do not think he is. It is true that Ackerman undertook to claim that the notes were a separate, segregated transaction, but his own evidence, let alone that of Bickley, tends to show the contrary, that is, that the- money he says he advanced was used as partnership capital, and should be considered, therefore, in a partnership accounting. The notes were given on November 8,1921; the alleged dissolution took place on December 12,1923, and after the latter date, they again entered into further partnership relations and did business as partners. It is the law that where the accounts are unsettled, a partner cannot sue a copartner at law for money advanced by him for the benefit of the partnership business. Hartzell v. Murray, 224 Ill. 377; Martin v. Stubbings, 20 Ill. App. 381; Stafford v. Fargo, 35 Ill. 481; Burns v. Nottingham, 60 Ill. 531. In the latter case, the court said: “It is the settled law of this court that one partner can not bring an action in assumpsit against his late partner, unless, upon a dissolution of the co-partnership, the partners account together, and a balance is stated in favor of one, and the other agrees to make payment of such sum. The balance so found must be a final settlement of all the partnership accounts, but balances only struck preparatory to a final account are not sufficient to form the subject matter of an action at law. Until this is done, the remedy is in equity.”

Considering all the evidence, we are of the opinion that the finding of the trial judge is manifestly against the weight of the evidence.

Apparently, from the record, there are still unsettled partnership matters, all of which, together with the notes here.in question, may be settled in an appropriate suit in equity.

For the reasons stated, the judgment will be reversed.

Reversed.

Holdom and Wilson, JJ., concur.


text:
    In re Estate of Frederick L. Chapman, Deceased. William H. Katt, Administrator of the Estate of Henry H. Van Meter, Deceased, Claimant, Appellant, v. The Estate of Frederick L. Chapman, Appellee.
    Gen. No. 32,044.

      Opinion filed February 23, 1928.
    N. M. Jones and W. H. Katt, for appellant.
    SONNENSCHEIN, BeRKSON, LaUTMANN & LeVINSON, for appellee; Joseph A. Struett, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

In October, 1926, Henry H. Van Meter (appellant) filed a claim against the estate of Frederick L. Chapman, deeeased, in the probate court, for $5,000, with interest at 5 per cent per annum, from and after June 3,1898, less a credit by payment on February 25, 1924, of $1,000.

On October 16, 1926, an order was entered by the probate court, allowing the claim of Van Meter against the estate in the sum of $10,680. From that order, Louise S. Chapman, executrix of the estate of Frederick L. Chapman, deceased, appealed to the circuit court. There was a trial de novo before the court, without a jury, and on February 11,1927, on motion of the estate, at the close of the testimony of the claimant, the court found the issues in favor of the estate of Frederick L. Chapman, deceased, and entered judgment that the estate do have and recover from the claimant, Henry H. Van Meter, its costs and charges. From that order this appeal was taken.

On October 27,1927, Henry H. Van Meter died; and later Wm. H. Katt was appointed administrator of his estate, and substituted here as claimant.

The question in the case arises concerning the following instrument:

“Chicago, June 3d, 1898.
“For Value Received,
I hereby promise to pay to H. H. Van Meter, or order, Five Thousand Dollars — $5,000.00—with interest from date at any time after thirty (30) days written notice upon return of certificate No. 148 of stock of Frederick L. Chapman & Co. made in favor of M. L. Kelly of Rangoon Burma, and held in trust by H. H. Van Meter.
Fredk. L. Chapman.”
The instrument contains on the back the following:
‘ ‘ Chicago, June 3rd, 1898.
“Made in Duplicate
Received of Fredk. L. Chapman, Certificate No. 148 of stock in corporation known as Frederick L. Chapman & Co. made out in favor of M. L. Kelly, of Rangoon /Burma, for 500 shares at par value of $5,000.00 which I promise to see returned upon payment of Five Thousand Dollars with interest from date.
H. H. Van Meter
February 25, 1924
Paid on the within note $1000.00.
H. H. Van Meter. ’ ’

The claim of Van Meter is based upon that document. The probate court allowed the claim, but the trial judge, as stated above, ruled it out on the ground that the statute of limitations had run.

It will be observed that the note is dated June 3, 1898, and that the claim was not filed until sometime in October, 1926, that is, after a lapse of more than 27 years.

It is contended on behalf of the claimant, Van Meter, the holder of the note, (1) that the statute of limitations had not run against the note at the time it was filed in the probate court; (2) that the trial judge should have permitted evidence to be introduced that was proffered by the claimant in regard to the indorsement, “February 25, 1924, Paid on the within note $1,000.00, H. H. Van Meter, ’ ’ which, if admitted, would have shown that the note was not outlawed; and (3) that certain evidence concerning statements made by Chapman in November, 1923, tolled the running of the statute. On the other hand, it is contended on behalf of the Chapman Estate, (1) that the statute of limitations began to run against the note 30 days after June 3, 1898, or within a reasonable time thereafter, and at the time of the filing of the claim in the probate court (27 years after the date of the note) it was barred by the statute of limitations; (2) that the evidence that was introduced by the claimant was insufficient to avoid the bar of the statute of limitations; (3) that the court correctly excluded the testimony on behalf of the claimant; and (4) that 27 years having elapsed since the execution of the note, a presumption existed, which was not rebutted by the evidence, that it was paid.

The note being dated June 3, 1898, and the claim being made for the first time 27 years afterwards, had the statute of limitations run? According to the terms of the note, the payee, Van Meter, had the right to give the maker, Chapman, written notice and tender the stock, and on failure of Chapman to pay, would have been entitled, 30 days thereafter, to file suit on his claim, but no notice was given on the part of the payee, nor was the stock tendered, and no action whatever was taken until October 16, 1925, twenty-seven years after the note was executed and four months after the maker was dead, at which time the claim was filed against the estate.

In Shelburne v. Robinson, 8 Ill. 597, the court said:

“The statute of limitations begins to run when a cause of action accrues. In a case where some act is to be done, or condition precedent to be performed by a party to entitle him to his right to sue, and no definite time is fixed at which the act is to be done or condition performed, he must exercise reasonable diligence to do the one or perform the other, or he will be barred by the statute of limitations; otherwise it would be in his power to defeat the law by his own negligence and wrong.”

It has been held in many cases that the statute of limitations begins to run either from the time the holder is entitled to make a demand, or within a reasonable time thereafter.

In Palmer v. Palmer, 36 Mich. 487, where suit was brought upon a note dated October 16,1867, and which contained the following language:

“Thirty days after demand, I promise to pay Jonathan Palmer fifteen hundred dollars, value received, without defalcation,” and where the evidence showed that no demand was made until May 22, 1874, and the period of the statute of limitations was six years, the court said:

“It is now well settled that a note payable on demand is payable at once and without demand, so that the statute runs from its delivery. * * * The payee could have presented it at any time, and it is not the- design of the statute to put it in the power of the creditor to postpone its application at his own pleasure. * * * We cannot but think this to be sound doctrine; whatever may have been the ancient prejudice against statutes of limitation they are now regarded as just and entitled to be fairly construed. If a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact able at any time to bring an action, when he can by his own act fix the time of payment.”

It seems to be the law that the moment a creditor, regardless of the conduct or wishes of the debtor, may legally demand payment, the statute of limitations begins to run; and the reason is that at that moment a cause of action has actually accrued.

In Knapp v. Greene, 79 Hun 264, 29 .N. Y. Supp. 350, the court said:

“ ‘It is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor, by his own act, and in spite of the debtor, can make the demand payable. ’ Substantially the "same view was taken in Morrison’s, Admr. v. Mullin, 34 Pa. St. 12; Rhines v. Evans, 66 Pa. St. 194; First Nat. Bank of Garretsville v. Greene, 64 Iowa 445; Lower v. Miller, 66 Iowa 408; Prescott v. Gosner, 34 Iowa 175.”

In Roush v. Illinois Oil Co., 180 Ill. App. 346, 350, the court said:

“In this and other jurisdictions, however, it is held that where some act is to be done, or condition precedent to be performed to entitle a party to his right to sue, and no definite time is fixed in which the act is to be done, or the condition performed, he must exercise reasonable diligence to do the one or perform the other, or he will be barred by the statute. Shelburne v. Robinson, 8 Ill. 597; Baker v. Brown, 18 Ill. 91; Staninger v. Tabor, 103 Ill. App. 330. In other jurisdictions the same rule prevails. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Campbell v. Whoriskey, 170 Mass. 63.” Luther v. Crawford, 116 Ill. App. 351; Knecht v. Boshold, 138 Ill. App. 430.

From the fact that in the instant case no claim was made until the expiration of 27 years after the note was executed, it follows that whether the rule be considered to be that the statute began to run 30 days after the date of the execution of the note, or began to run only after the expiration of a reasonable time after the right to make a demand had accrued, makes no substantial difference, because it could not be justly claimed that a reasonable time after June 3, 1898, would run beyond ten years, that is 1908, and if the statute should be considered as beginning to run in 1908, the claim, still would be barred, because another ten-year period had elapsed before the claim was presented in the probate court. The case of Emerson v. North American Transportation & Trading Co., 303 Ill. 282, in which a certificate of deposit was considered, is cited in support of the claimant’s contention, but the decision in that case was dependent upon the recognition by the court of a substantial difference between a certificate of deposit and a note.

The question remains, was the evidence introduced by the claimant sufficient to toll the running of the statute of limitations?

The evidence of one Olsen, a sales engineer, a close friend of Van Meter, and who knew Chapman in his lifetime, is that in November, 1923, he was present at a meeting between Chapman and Van Meter at Chapman’s office; that as they were leaving Chapman’s office, Van Meter asked Chapman “if he would be willing to renew the note,” and Mr. Chapman replied to that saying that “he would do better than that, after the first of the year”; that he saw the note the first time in the summer of 1893; that he did not know whether Van Meter had the note in his possession when the talk of November, 1923, took place; that about February, 1924, he saw a check for $1,000, signed with the name “Frederick L. Chapman,” and which purported to be payable to Van Meter; that he did not know Chapman’s handwriting; that (after examining while on the witness stand, the signature on the cheek) it was his opinion that it was the same as that on the note. Upon motion of counsel for the estate the testimony as to the comparison of signatures was stricken out.

His evidence on cross-examination was that the first time he ever met Chapman was in November, 1923; that he never saw him after that time; that when he went into the office Van Meter and Chapman were talking about some editorial in one of the issues of Chapman’s magazine; that that discussion lasted for about half an hour; that the discussion of the note took place only when Van Meter and Chapman left Chapman’s private office and got out into the hall of the building; that Van Meter spoke about the note first; that Van Meter said, “my note,” and asked Chapman if he was willing to renew the note; that Chapman replied, “he would do better than that after the first of the year”; that Van Meter then “just nodded,” made no reply, and they left; that in that conversation between Chapman and Van Meter they did not describe or mention any particular note; that Van Meter’s reference was merely “the note”; that he, the witness, did not see the note at Chapman’s place that day; that the only time he ever saw the note was when it was in the possession of Van Meter sometime in the summer of 1923.

Section 16 of chapter 83 on Limitations, Cahill’s St. ch. 83, if 17, after certain provisions concerning actions on promissory notes, contains the following: “But if any payment or new promise to pay shall have been made, in writing, on the bond, note * * *, within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.”

With that in mind, the question arises whether Van Meter proved either a new written promise to pay the note, or proved a payment on the note. The following cases hold that the new promise to pay must be in writing: Robinson v. Briscoe, 55 Ill. App. 131; Honn v. Pinnell, 61 Ill. App. 137; Harden v. Whitman, 209 Ill. App. 106; and Boone v. Colehour, 165 Ill. 305. In the last case, the court said:

“By the provisions of section 16 of the Limitation Act of 1872, in force at the time of the execution of this note and since, the new promise necessary to remove the bar of the statute as to written instruments must be in writing.”

Applying that principle to the testimony of Olsen, it follows that the conversation testified to by him was insufficient to remove the bar of the statute of limitations. A number of cases are cited by counsel for the claimant in support of their contention that Olsen’s testimony was sufficient to prove a new promise, but an examination of them discloses that they involve either oral contracts or written contracts executed prior to 1872, when no written promise was necessary. In Horner v. Starkey, 27 Ill. 13, an oral promise was held to be sufficient, but at that time, the note being dated November 14, 1838, a written promise was not required by the statute; in Whiteman v. McFarland, 68 Ill. App. 295, which was a suit for money paid, and where there was no written contract, the court held an oral promise was sufficient; that a written promise to pay-the barred debt was necessary only where the original promise was in writing; in Pinney v. Smith, 136 Ill. App. 129, which was a suit on an oral contract, the court held that an oral promise was sufficient; in Quinlan v. Thompson, 152 Ill. App. 275, which was a suit on an open account, the court held that an oral promise was sufficient.

There is a final contention to the effect that the evidence showed a payment on the note by Chapman to Van Meter sometime in 1924 of $1,000, and that that revived the debt represented by the note. The burden of proof as to such a payment was upon the claimant. We have already recited what Olsen testified to on that subject. The only other evidence introduced to establish payment, outside the memorandum on the note, was the testimony of the two bank officials, Kalabza, bank teller of the State Bank of Chicago, and Park, bookkeeper of the Illinois Merchants Trust Company.

The evidence of Kalabza is that Chapman had an account with the State Bank; that, according to the records of the bank, there were two checks for $1,000 each, charged to his account on February 26,1924. On cross-examination, he testified that the bank records did not show to whom those checks were payable.

The evidence of Park is that Van Meter had an account with his bank in 1925; that he had a deposit slip showing that on February 25, 1924, Van Meter deposited in the Corn Exchange National Bank $1,025. There is, also, the further evidence of one Thomas, a physician, who testified that he knew Van Meter, but did not know Chapman; that sometime in the last 3 or 4 years, he saw a check in the handwriting of Van Meter, which purported to be signed by Frederick L. Chapman, payable to Van Meter; that the circumstances under which he saw the check were that Van Meter was in his, Thomas, ’ office, and when he got ready to leave he took it out of his pocket and showed it to him, and told him about it; that he did not know the handwriting of Chapman; that he merely saw the signature on the check, which purported to be that of Chapman.

On the back of the note in question, which was offered in evidence, there was the indorsement above referred to, “February 25, 1924. Paid on the within note $1,000.00, H. H. Van Meter,” but it was excluded by the court.

It seems quite obvious that the evidence as to payment was insufficient. Miller v. Cinnamon, 168 Ill. 447; Carroll v. Forsyth, 69 Ill. 127; Ruhl v. Gambrill, 175 Ill. App. 641; Rothschild v. Sessell, 103 Ill. App. 274; Wanamaker & Brown v. Plank, 117 Ill. App. 327; Drury v. Henderson, 36 Ill. App. 521; Crum v. Higold, 32 Ill. App. 282.

Analyzing the evidence, in our judgment, it was insufficient; it may give rise to a suspicion, but it fails to convince. That Olsen in 1924 saw a check for $1,000, with the name Frederick L. Chapman on it, and that Thomas saw a check, payable to Van Meter, which' contained as a signature the words, “Frederick L. Chapman”; that Park, the bookkeeper, produced a deposit slip dated February 25, 1924, which showed a deposit to the account of Van Meter for $1,025; that, according to Kalabza, Chapman had an account with the State Bank, and that two checks of $1,000 each were charged to that account on February 26,1924, all taken together, certainly does not sufficiently prove such a payment on the note, as, according to the authorities, would be sufficient. Of course, the indorsement on the note purporting to be signed by Van Meter was merely, in and of itself, not being in the handwriting of the maker, but being in the handwriting of the payee, self-serving, and was properly excluded by the court. Connelly v. Pierson, 9 Ill. 109; Simmons v. Nelson, 48 Ill. App. 520; Lowery v. Gear, 32 Ill. 383. Then, too, as the claimant, Van Meter, was incompetent to testify, his memorandum on the note was incompetent. Drury v. Henderson, 36 Ill. App. 521.

Further, destructive of the claimant’s rights, is the evidence that 27 years had elapsed since the execution of the note, so that it is but reasonable to presume that it was paid. Howe v. Brown, 287 Ill. 532. In our judgment, the record does not disclose such clear and explicit proof as is necessary to dislodge the presumption of payment which the lapse of 27 years gives rise to.

Being of the opinion that the evidence failed (1) to show a written promise to renew the note; (2) or a payment within the meaning of the statute; (3) or that the presumption of payment after the lapse of 27 years was overcome; (4) or that in any way the note was not barred by the statute of limitations, the judgment will be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.


author: Mr. Justice Holdom

text:
    Kimbell Trust & Savings Bank, Appellee, v. The Hartford Accident & Indemnity Company, Appellant.
    Gen. No. 32,038.
    Opinion filed February 23, 1928.
    Deerees, Buckingham & Eaton, for appellant; Don Kenneth Jones, of counsel.
    Rathje, Wesemann, Hinckley & Barnard, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This action is brought in assumpsit by the plaintiff bank against the defendant indemnity company, upon what is denominated in insurance circles a “Securities Blanket Policy.” Inter alia it provided against loss by reason of having during the life of the policy taken as collateral to any loan any forged, raised or altered securities. The date of the policy is May 27, 1924. On March 27, 1924, one C. E. Miner borrowed at the plaintiff bank $3,500 and gave his note therefor, of that date, payable 90 days after date. As collateral security for the loan he deposited with the bank 80 shares of Gulf States Steel Company common stock. On the maturity of the note it was renewed by the giving of another note, payable 90 days after date. The first note was marked paid and the collateral remained as security for the new note. On September 23, 1924, and December 31,1924, there were like renewals for 90 days, and the same process regarding making a new note and retaining the collateral as security was gone through with. Subsequent to, December 31, 1924, the bank discovered that the security was forged. The bank insisted that the Indemnity Company was liable to it on its policy and made claim for the amount of their loss. The Indemnity Company disavowed liability on the ground that the stock was forged and taken by plaintiff before the issuance of defendant’s policy to it. Plaintiff parried this contention on the claim that each renewal was a new loan and a new transaction, and that the steel stock was on each occasion delivered as collateral to each of the new loans and the notes given evidencing such loans, 'and that defendant was liable because the second and third loans and notes were given and received within the dates of defendant’s liability under the policy.

The cause was submitted to the trial judge by agreement and on plaintiff’s own proof the court adopted its theory that the bank had taken the stock as collateral upon the occasion of the receiving of each of the notes made by Miner, and that the loss was in consequence sustained on Miner’s failure to pay the note of December 31, 1924. There was a finding for plaintiff and an assessment of damages at $3,910, and a judgment upon the finding for that amount, and defendant brings the record here for our review by appeal.

It is held as a matter of law that the renewal of an original note and the acceptance of the note given in renewal works a payment of the original note. Citizens’ Commercial & Savings Bank of Flint v. Platt, 135 Mich. 267. It is contended that each renewal note became at the time of its date a new transaction, and that the retention of the collateral on each of such occasions constituted a redelivery of such collateral. The majority members of this court have the same view which the trial judge had in relation to the renewal notes being original transactions, and that the redelivery of the collateral on each occasion with the new notes partook of the same quality as an original transaction, so that the policy of indemnity of defendant was effective as an indemnity as of the dates of each renewal of the $3,500 loan with the deposit of the steel stock as collateral.

We have not been referred to any authority where the precise question here involved was decided, and we know of none.

For the above reasons the judgment of the superior court is affirmed.

Affirmed.


text:
    V. C. Dunn, Appellee, v. The Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 32,109.
    Opinion filed February 23, 1928,

      Daniel Taylor, for appellant.
    Charles C. Spencer and Murphy O. Tate, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries, brought by the plaintiff Dunn, a passenger, against the Chicago, Bock Island & Pacific Bailway Company, a common carrier of passengers for hire.

Originally the declaration contained seven counts and thereafter one additional count. On the trial the third and sixth counts were withdrawn by plaintiff. The remaining counts of the declaration alleged that on the 17th day of September, 1926, plaintiff became a passenger on one of defendant’s trains at Hamilton Park Station, located near Seventy-Second street, Chicago, and that he was caused to fall or be thrown from one of the cars of the train and was injured. The first count charged that the servants of defendant carelessly, negligently and improperly caused their train to give a sudden jerk or violent lurch while plaintiff was at the rear end of one of the cars, resulting in plaintiff’s being thrown from the train.

The second count charged generally careless, negligent and improper management, operation and control of the train.

The fourth count alleged that the servants and agents of the defendant carelessly, negligently and improperly left the rear gates on the rear platform of the coach upon which the plaintiff was riding open, and plaintiff while passing from one coach to another was caused to slip and fall from the rear platform of said coach to and upon the railroad track and right of way of the defendant.

The fifth count alleged that the servants of the railroad company carelessly, negligently and improperly left the gates on the rear platform of the car, upon •which plaintiff was riding, open and that while plaintiff was standing or walking on said platform, he, as a direct and proximate result of such negligence was caused to fall from the platform.

The seventh count charged that the gates on the rear of the coach upon which plaintiff was riding were carelessly, negligently and improperly left open, and that the plaintiff, while going or attempting to go out on said platform was thrown or caused to fall from the platform by a sudden lurch or jerk of the train.

The additional count of the declaration pleaded section 32 of the Public Utilities Act, Cahill’s St. ch. 111a, 1Í 47, which in general terms requires every public utility to furnish such service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, etc., as shall be in all respects adequate, efficient, just and reasonable; alleged that the gates between the car in which plaintiff was riding and the adjoining car of said train were negligently opened and allowed to remain open, thereby causing plaintiff, while lawfully passing from one care to another, to fall from said train, as a result of which he was injured.

To the declaration as thus constructed the defendant interposed a plea of the general issue.

There was a trial before court and jury resulting in a verdict against defendant and an assessment of $50,000' as damages. On argument of the motion for a new trial plaintiff remitted one-half of the verdict, upon which judgment of $25,000 was entered.

Defendant brings the record here by appeal for our review, and argues, for reversal, error in the trial court’s refusal to instruct a verdict in its favor that defendant was, not guilty of negligence in the lurch of the train; that no duty by law was cast upon defendant to keep the gates of the platform of its cars closed, and that plaintiff was guilty of contributory negligence, contributing to the accident; error in the giving of plaintiff’s instruction and in refusing to, give instructions 14,15 and 16 proffered by defendant; also argues that the verdict is the result of passion and prejudice, and error in denying defendant’s motion for a new trial.

The evidence develops that the train on which plaintiff was a passenger consisted of nine wooden cars, and that the train is what is known as a suburban train as distinguished from a through train; that plaintiff embarked at Hamilton Park Station, at Seventy-Second street, Chicago, and his destination was the La Salle Street Station, at Van Burén street, Chicago; that when plaintiff boarded the train the platform gates were open on the east side of the car he boarded and closed on the west side; that plaintiff took a seat on the west side of the car in the rear; that plaintiff paid his fare with a commutation ticket; that as the train was on its way to its destination, after passing the Englewood Station, plaintiff became nauseated, and had a feeling that he had to vomit; that he arose and started to the rear of the car in an attempt to seek a toilet, thus enabling him to relieve himself of the nausea. When he reached the toilet he found it locked. Thereupon he started to cross the platform into the adjoining car at the rear in on attempt to find an open toilet. He opened the door and walked on to the platform, when there was a sudden side swing or lurch of the car, and, owing to the speed of the train and the lurch, plaintiff lost his equilibrium and was thrown to the west of the car. The gate on the platform there being open, he was thrown off the train and on to the right of way of the defendant and severely injured. He testified that he made a grab as he fell to catch something by which he might arrest his fall; that he subconsciously or momentarily noticed that the gate was open; that the feeling of nausea came to plaintiff suddenly about a couple of moments before he left his seat, and that such an attack was an entirely unusual occurrence with him; that the train made no stops between Englewood and the La Salle Street Station, a distance of about seven miles.

The evidence on behalf of plaintiff was to the effect that it was the custom of the defendant railroad to keep the gates on the west side of the train closed north of Englewood to the terminal for the safety of passengers. Plaintiff testified further that he did not know that the west gate had been opened until the instant that he was thrown off the train by the sudden lurch of the car. The platforms between the cars were open for the use of passengers passing from one car to the other, but there were no gates between the cars. There was no sign forbidding passengers to pass from one car to the other when the train stopped or while it was in motion, and the evidence demonstrates that it had been the custom for many years for passengers to pass from one car to the other while the train was in motion, and that the cars were so constructed as to facilitate such movements of passengers.

The ticket collector on the train testified that “there are no signs prohibiting passengers from passing from one coach to another. It is almost the universal custom of passengers if they are in one car and it is crowded, or if they have a necessity to go, to walk through from that one car to the other while the train is in motion. Frequently, people getting on at one of the suburban stations walk through to the next car to a seat.”

The accident happened near Forty-First street and the ticket collector testified that he had opened the gates on the west side of the platform of the car between Englewood and Forty-First street. Another ticket collector testified that the gate on the west side of the car from which plaintiff was thrown was closed when the train left the Englewood Station, and that he opened the gate sometime after leaving Englewood and before the happening of the accident at Forty-First street.

It is in evidence for defendant, in an attempt to justify the opening of the gate on the west side of the train, that the trainmen could not know on what track in the La Salle Street Station, its destination, the train was going on until it got very near the station and for that reason they had the gates open on both sides of the train before entering the La Salle Street Station. On through trains it was the practice to wait until the trains actually pulled into the station before the gates were opened for the discharge of passengers.

It is strenuously argued by defendant that plaintiff was guilty of contributory negligence in being upon the platform of the car; that the platform is not a place for a passenger to ride upon. Many cases are cited in support of this contention, but we find in every one of these the exception that where a passenger is justified in going out on the platform or from one car to another, either of necessity, or by the express or implied invitation of the carrier, and that in so doing he is injured as a proximate result of the carrier’s negligence, the rule does not apply.

Among those cases cited by defendant is Savage v. Illinois Cent. R. Co., 164 Ill. App. 634, which is a well-considered opinion with ample citation of authority by the late Mr. Justice Willis where the exception to the general rule is stated.

We are of the opinion that plaintiff’s case comes within the exception to the general rule. Plaintiff was suddenly and unexpectedly afflicted with nausea. He was seeking a toilet where he might in a rational way relieve himself. While toilets were in some of the cars, they were locked and inaccessible. Meeting this emergent condition and with due regard for decency he sought the platform of the car, and without any fault of his own, but owing to the west gate of the car being open, he was thrown from the platform upon the right of way of the company, and very seriously injured, the extent of which will be discussed in deciding whether the amount of damages awarded were excessive or not.

Under the condition disclosed by the evidence in this case it was incumbent upon the defendant railroad to keep the gates to the east and west sides of the platform of its several cars closed while the train was in operation for the safety of passengers, who in transit were moving across the car platforms from one car to the other. That duty rested upon the company for the protection of its passengers walking for any lawful purpose from one car to another.

It was negligence on the part of the defendant railroad company to have the platform gates open between stations while the train was in motion. If the west gate of the platform had been closed, as it should have been, the accident could not have happened. This was the negligent act which fixes liability on defendant to plaintiff for the accident and his injuries suffered in consequence thereof.

Plaintiff’s presence upon the platform was justified from the fact that he was in extremis from nausea, which forced him to that position. This situation distinguishes this case from! the cases cited by defendant where a passenger was improvidentlv on the platform of the car when he was injured. The negligence of defendant to which the accident was proximately attributed was that the gate on the platform from which plaintiff fell was open. The negligent act was not the swerving or jerking of the car which was being propelled at a rapid rate of speed made necessary in the operation of defendant’s cars in its suburban service at the point of the accident, as the accident could not have happened had - the gate not been open when it should have been shut. The purpose of the gates on the platform primarily was for the protection of passengers lawfully upon them as was plaintiff when the accident occurred in manner above recited. As a matter of fact plaintiff was not riding upon the platform. He was in search of an open toilet to relieve himself from nausea, and was passing over the platform when the accident happened, on his way to discover an open toilet. Therefore plaintiff was not guilty of contributory negligence in being upon the platform at the time of the accident.

A careful examination' of all of the instructions given at the request of both parties, we think, demonstrates that the jury was sufficiently instructed on both defendant’s and plaintiff’s theories of the case, and particularly so as to defendant’s theory of its defense, and that the trial judge did not commit error in refusing to give instructions 14,15 and 16, proffered by defendant.

Instruction 14 had the infirmity of being by construction a peremptory instruction to find the defendant not guilty. Instructions 15 and 16 likewise instructed a verdict. The 16th instruction in effect told the jury plaintiff had no right upon the platform at the time of the accident. This was a total disregard of the facts in evidence and contrary to the contention of plaintiff, which found ample support in the evidence. Neither did the court err in refusing to instruct a verdict for the defendant upon its motion.

It is argued with great force that the verdict of $50,000 is the result of passion and prejudice of the jury before whom the case was tried. Plaintiff was a young man 23 years of age, who had his business life and career before him. He has been maimed and disfigured by the negligent conduct of defendant. One leg has been severed below the lmee, and the other so fractured and displaced inwardly that the movement of the ankle is seriously hampered by the excess of callous formation, and there are sharp pieces of bone on the stump projecting up into the flesh, which made the wearing of an artificial leg at the time of the trial a practical impossibility, and it is said that osteomyelitis or rotting of the bone is present, which will necessitate an additional operation; that plaintiff has lost weight and is in a greatly run down physical condition. These injuries are all terrible handicaps to the plaintiff in every way, in all his walks in life. He is not able to get around with that celerity of the average young man of his age; his health is likewise impaired, so that he cannot in all probability ever enjoy the health of a man of his years, or be able to accomplish physical tasks which he could have accomplished but for the terrible injuries which he has suffered as the result of the negligence of defendant in the manner above described in this opinion. It is almost impossible to accurately measure the damages which plaintiff has sustained, and will continue to sustain, as the result of his injuries. It therefore became the duty of the jury to fix the amount to the best of their ability, as they did, and we cannot say that even the amount of the verdict as originally found, in view of the whole case and plaintiff’s crippled condition, was more than reasonable compensation for his severe injuries, and the judgment for $25,000, after acceding to the court’s suggestion of a remittitur of half the verdict, is, we think, but scant compensation to plaintiff under all of the circumstances arising from the very serious injuries suffered as the result of defendant’s failure to accord to plaintiff that protection which the law exacts from common carriers toward persons who intrust themselves to their care for transportation of their persons. The trial court did not err in overruling defendant’s motion for a new trial.

Finding no reversible error in the record, the judgment of the superior court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    Paul F. Victor and Le Roy Burton, Trading as Burton & Victor, Appellees, v. Matthew J. Warner and J. F. Moore, Trading as Warner & Moore, Appellants.
    Gen. No. 32,219.

      Opinion filed February 23, 1928.
    Rehearing denied March 12, 1928.
    Defrees, Buckingham & Baton, for appellants; John O’C. FitzGerald, of counsel.
    No appearance for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an undefended appeal of an action of the fourth class in the municipal court, in which there are no pleadings. The action is on a promissory note secured by chattel mortgage, and also a warrant of attorney and power to confess judgment for the amount due thereon.

The note is dated March 22,1926, and was given for the sum of $162. It was payable in monthly instalments of $27 each in one, two, three, four, five and six months after its date. The note is as follows:

“$162.00 Chicago, Illinois March 22, 1926 City State Date
“For Value Received, I (We) Richard Seymour jointly and severally promise to pay to the order of Warner & Moore at the time or times in the Schedule of Payments hereon
One Hundred Sixty Two and No/100 Dollars ($162.00) at Burton & Victor, 1505 Westminster Bldg., Chicago
with interest after date on each installment at the rate of 7 per cent per annum until maturity and after maturity at the highest rate allowed by law together with exchange and collection charges at current rate.”

At the time of the commencement of the suit there was claimed to be due upon the note the sum of $81.33. By agreement the cause was tried before the trial judge, who found the issues for the plaintiffs, and assessed the damages at $96.46, upon which finding, after overruling motions for a new trial and in arrest of judgment, a judgment was entered, and defendants bring the record here for our review by appeal.

Defendants argue for reversal that the note in suit is not negotiable under the Negotiable Instruments Act, Cahill’s St. ch. 98; that plaintiffs were not the owners of the note; that under section 27 of the Mortgage Act, Cahill’s St. ch. 95, 27, a note secured by a chattel mortgage, as in the instant case, is non-negotiable, and that in the event this court should hold that plaintiffs have a right to recover, then and in that event they are not entitled to more than 5 per cent interest on the unpaid principal of the note.

In arriving at our conclusions upon the facts, notwithstanding there may be erroneous rulings upon the admission of evidence, we must assume that the court’s judgment (the trial being by the court without a jury) is grounded upon evidence only that was legally admissible, and that the trial judge disregarded all evidence which was not legally admissible.-

The controversy here involved is upon the note hereinabove set out verbatim. That forms the contract of the parties by which their respective rights must be adjudicated in this suit.

It is axiomatic that contracts resting in writing cannot be altered or changed by parol evidence. The rulings of the trial judge founded upon this principle of law were right and not erroneous as stressed by defendants. The negotiability of the note, supra, was not impaired because its payment was secured by a chattel mortgage upon an automobile for which the note was given in. part payment. In support of this proposition defendants contend that because the note is secured by a chattel mortgage it is not payable unconditionally. This contention finds no support in any of the terms of the note. It is payable for a sum certain and without condition. The chattel mortgage is collateral security only. If we were to concede the correctness of this contention, then every note secured by collateral would be non-negotiable, and bankers who hold such notes could not pass title by indorsement and delivery. This would make a new and novel condition in banking circles, and destroy what has heretofore been regarded as the law governing notes secured by collateral. In support of defendants’ contention that the note in suit is not negotiable, they cite section 21 of the Negotiable Instruments Act, Cahill’s St. ch. 98, Ü 21, which in part reads: °

“An instrument payable in money, to be negotiated, must * * * contain an unconditional promise or order to pay a sum certain in money.”

Let us analyse the words of the act as applicable to the note in suit. It contains an unconditional promise to pay a certain sum of money at a certain time without restriction. The fact that the note is payable in equal monthly payments specified upon the note, in no manner affected the certainty as to time of payment, nor did that provision have the effect to destroy its negotiability under the Negotiable Instruments Act, supra. The note in every essential particular fulfils the requirements of the act supra to make it negotiable. None of the cases cited in support of defendants ’ contention are applicable because they one and all involve non-negotiable instruments. The note being negotiable by its terms, its introduction in evidence by plaintiffs made out a prima facie case entitling them to recover the amount due by its terms in the absence of countervailing proof.

Defendants further contend that there was error in computing the interest due on the note at 7 per cent and not at 5 per cent, the statutory rate in the absence of a contract for a higher rate.

The note is the contract before us for adjudication as to the rights of the parties to it, and an examination of the note discloses that the rate of interest agreed upon is 7 per cent until maturity, and thereafter at the highest rate of interest allowed by law. We will take judicial notice of the fact that the highest rate of interest allowed by the Illinois Statutes is 7 per cent per annum.

While it is true there is an indorsement on the note by plaintiffs making the note payable to “Union Trust Co. as trustee,” yet, as plaintiffs had possession of the note without dispute, that possession vested the title thereto in them and they could at any time have crossed off the latter indorsement.

We find no reason either on fact or principle justifying us in interfering with the judgment of the municipal court, and it is therefore affirmed.

Affirmed.

Taylor, P. J., and Wilsoh, J., concur.


author: Mr. Justice Wilsoii

text:
    Corning Glass Works, Appellant, v. Rose Adelman and Harry Adelman, Appellees.
    Gen. No. 31,906.

      Opinion filed February 23, 1928.
    James J. McKenna and Winston, Strawn & Shaw, for appellant; James J. McKenna, Harold Beacom and George T. Evans, of counsel.
    Michael Gesas and Millard R. Powers, for appellees.
   Mr. Justice Wilsoii

delivered the opinion of the court.

This action is based upon an appeal bond dated September 17,1923, by which the defendants obligated themselves to pay a certain judgment for $10,195.70, recovered in the municipal court of Chicago on August 29, 1923, in which proceedings the Corning Glass Works was plaintiff and the Chicago Glass Products Company was defendant. The judgment was in favor of the plaintiff in the original cause, and the bond provided that in case the Chicago Glass Products Company prosecuted this appeal with effect and paid the amount of the judgment, costs, interests and damages rendered, and to be rendered, then the obligation was to be void, otherwise in full force and effect.

The judgment in favor of the Corning Glass Works was affirmed in this court, and writ of certiorari to the Supreme Court being denied, this judgment became final.

By reason of the action of the defendants, in injecting into the trial every conceivable ground for defeating the action, what would otherwise be a simple cause, became an involved one.

The statement of claim filed by the plaintiff acknowledged the receipt of $6,731.43, and the suit was for the balance due under the bond.

A trial was had before a jury and a verdict was rendered in favor of the defendants. Judgment was entered accordingly, and it is from this judgment that this appeal is perfected.

It is contended on behalf of appellant that the trial court committed error in that: (1) it refused to receive evidence offered by the plaintiff, that a certain alleged claim of the Chicago Glass Products Company was the same claim which had been offered in the original suit; (2) there was no consideration for the alleged verbal agreement to extend the time of payment of the judgment, and such agreement was therefore invalid and unenforceable; (3) it was reversible error, for the court to receive any evidence of the alleged verbal notices to proceed to collect the judgment; (4) the court made prejudicial remarks during the course of the trial, to the injury of the plaintiff; (5) counsel for defendants made many prejudicial remarks, and conducted himself in a manner prejudicial to a proper hearing of the cause; (6) the court admitted improper evidence concerning the alleged claim of the Chicago Glass Products Company against the Corning Glass Works; and (7) the court committed reversible error in giving certain instructions. As to the first of these propositions, evidence was permitted by the trial court to be entered on behalf of the defendants, over the objection of the plaintiff, for the purpose of showing that the Chicago Glass Products Company, defendant in the original suit, had lost certain profits through the failure of the Corning Glass Works to fill orders sent to it by the Chicago Glass Products Company. Plaintiff attempted to meet this testimony by introducing in evidence facts showing that said claim was fully set out in an affidavit of defense in the original cause of action, and this was refused by the trial court. We believe the trial court erred in the first place in permitting any such testimony to be introduced on behalf of the defendant; and that it erred a second time in denying plaintiff the right to rebut this by introduction of testimony showing that it had been part of the original litigation.

This cause was before this court on the original hearing and as it grows out of the same subject matter and is predicated upon a liability based upon said proceeding on appeal in this court, we are of the opinion that the records of this court became competent and will be considered in connection with this cause for the purpose of ascertaining the real facts in connection with this proceeding.

This court said in the case of Dandridge v. Northern Trust Co., 218 Ill. App. 138, at page 140 :

“Garnishment proceedings are statutory; and it is a condition precedent to garnishment that there shall be a judgment, issuance of an execution, and a return £No property found.’

“Where it appears, as it does here, that the garnishment proceedings are part and parcel of the same cause as that in which the original judgment was obtained— the original and garnishment proceedings bear the same general number — and the trial court takes, as it should, judicial notice of all that has transpired in the cause, we are of the opinion that it then becomes unnecessary to have the judgment and execution and return offered in evidence, and thereafter, on appeal or writ of error, made a part of the bill of exceptions.”

To the same effect see Wallace v. Meldahl, 202 Ill. App. 97; People v. Powers, 283 Ill. 438. We are of the opinion that this cause is so interrelated to the proceeding upon which this suit is predicated, in that it is an action to enforce an obligation on a bond given on the appeal from the original judgment, that this court has the right to- and should search its own record for the purpose of discovering the truth as to whether or not an issue sought to be raised by the defendants, was, in fact, presented to this court on an appeal from the original judgment. We find in the record in said cause on appeal in this court, that the matters attempted to be introduced in evidence by the defendant below in this proceeding were contained in the affidavit .of defense filed in the original cause, and therefore should have had no part in this proceeding. An offer to make this proof, which was set out fully in the offer of counsel-for the plaintiff, was denied by the court; and we think not only that it was error to refuse said offer, but believe that we can correct the error in this court from the record now on file before this court, brought here on the hearing of the original judgment. Moreover, the same facts are matters of record in the court wherein this cause was heard in the first instance.

Considerable space is given by counsel for appellee in his argument to the effect that a surety will be released from his obligation where a party undertakes to vary the terms of the suretyship agreement. This is a correct proposition of law, except that the change must be a material change and one which would affect the interests and rights of the surety. The cases cited in support of said rule are not in conflict with the view we hold in regard to that proposition, but it must be borne in mind that the present action is based upon an appeal bond, and the obligation on which has become certain and fixed. After the affirmance of the judgment in this court, and the denial of a writ of certiorari by the Supreme Court, the plaintiff had a right to compel payment of the judgment from the surety, as well as from the principal, when it appeared that the principal had failed to satisfy the judgment.

The Supreme Court of this State, in the case of McCarthy v. Alphons Custodis Chimney Const. Co., 219 Ill. 616, in its opinion at pages 622, 623, says:

“The very object of the parties in executing the bond was to prevent the collection of the judgment, and have the case re-heard in the circuit court; and the bond wás expressly conditioned for the payment of the judgment, in the event it should be affirmed. It was, therefore, a solemn admission by the defendant that there was such a judgment. He voluntarily entered into an engagement under his hand and seal for the payment of the judgment; and he could not afterwards deny what he thus deliberately asserted to be true — the existence of the ■ judgment. The principle of estoppel is clearly applicable. * * *

‘ ‘ The bond was executed in order to enable the parties, who signed it, to take an appeal from the judgment to the Appellate Court. The bond recites that the appeal had been prayed for and obtained, and provides that the bond is void in case the appeal is prosecuted with effect. Hence, the appellant in this suit upon the bond cannot be heard to say that no appeal was ever taken; nor can he be permitted to question the truth of the recitals of the bond. The bond in question is a voluntary contract. The expenses incurred by appellee in defending the appeal on the faith of the bond are a sufficient consideration for entering into it. (Meserve v. Clark, 115 Ill. 580; George v. Bischoff, 68 Ill. 236.)

“It is true that appellant is a mere surety upon the bond; but ‘in an action on an appeal bond the obligors and sureties are estopped from setting up defenses • that contradict the recitals therein.’ (24 Am. & Eng. Ency. of Law, — 2d ed. - p. 67; Arnott v. Friel, supra; Shaw v. Havekluft, 21 Ill. 127).”

The distinction appears to be clear that the plaintiff in this cause was not compelled to proceed at any particular time, outside of the statute of limitations, against the principal, to collect, but, on the other hand, the obligors on the bond had a right of subrogation, and could have paid the judgment and collected from the principal. In other words, the right to collect became one to which the sureties on the bond were subrogated, and it was their duty to see that their interests were protected, if they cared to protect their interests, by the payment of the judgment and costs, and thereupon proceeding to collect for their own benefit.

The court again, in its opinion at pages 219, 220, says:

‘ ‘ The plaintiff had not entered into any contract with the sureties on the appeal bond that he would take prompt measures to collect the judgment. The duty of such action rested with them. The law gave them ample protection. They could have paid the judgment at any time, which would have been no more than they had agreed to do, and could thereupon have sued the principal in their own names and proceeded to collect the amount of the judgment without any delay.”

The case just cited was an action on an appeal bond, and the court distinguishes such actions from an ordinary action of suretyship.

It is argued at some length that the Chicago Glass Products Company had gone into bankruptcy after the obtaining of the judgment and that it was the duty of the plaintiff to present this judgment in that court for collection. Counsel in the case of Sandusky v. Exchange Bank, 81 Ill. 353, took the opposite view of this argument and presented forcibly to the Supreme Court of this State their reasons why the fact of presenting such a judgment in a bankruptcy proceeding was cause for releasing the obligors on the bond; whereas, in the case at bar, counsel insist that the plaintiff released the obligors on the bond by doing exactly the opposite thing. The court in its opinion at page 355, sáys:

“The presentation of the judgment, and its allowance in the bankrupt proceedings, was in no sense a judgment against the bankrupt, but if it was, that would not release the surety on the appeal bond. His liability arises upon the bond. No action was had or proceedings taken in the bankrupt court on the obligation signed by the. security. •

“It was but an act of good faith on the part of appellees to present the judgment against the estate of the bankrupt, and whatever amount could be realized could be applied in payment of the judgment, and thus far relieve the surety on his bond, but we are aware of no principle upon which it can be claimed that such a presentation of the claim would release the security.”

For the reasons stated in that opinion, we are of the belief that the failure to present the judgment in the bankruptcy proceeding was not a cause for releasing the bond, because, as in that case, the obligation of the surety was fixed after the affirmance of the judgment. To the same effect is the case of Villars v. Palmer, 67 Ill. 204, where it was claimed by the obligor on a bond that the failure of the creditor to present the claim against the estate of the principal debtor after his death resulted in releasing the surety on the bond. The court in its opinion at pages 205, 206, says:

“The claim on the part of the surety in this case is, that, as by the neglect of the creditor to present his claim against the estate of Taylor, the principal, all remedy in respect to the debt has been lost against the estate of the principal, that should operate to discharge the surety.

“The complaint is of mere delay, not of any affirmative act on the part of the creditor, whereby the surety has been affected. But it is the well established principle, that mere delay on the part of the creditor to proceed against the principal does not discharge the responsibility of the surety.

“In cases of this sort there is not any duty of active diligence incumbent on the creditor. All that the surety has the right to require of the creditor, in the absence of any statute provision, is, that no affirmative act shall be done that will operate to his prejudice. It is his business to see that the principal pays.

' “The law furnished the surety here with ample remedies for his protection. He might have paid the debt according to his undertaking, and have sued the principal himself; or he might have gone into a court of equity after the debt became due, and obtained a decree that the principal should pay it; or he might, under the statute, have given to the creditor written notice to put the note in suit, and thus have compelled him to sue the principal.

“If he has seen fit to lie by, and the neglect to proceed 'against the principal in his life time, or against his estate after his decease, has been the means of depriving the surety of his indemnity, he must abide by the loss, and cannot throw it upon the creditor.”

It appears that, in the case at bar, an arrangement was entered into between the plaintiff corporation and the defendant to the original judgment, Chicago Grlass Products Company, by which this company was permitted to pay on account so much from month to month. It is argued that this was an arrangement which was detrimental to the obligors on the bond, particularly in that 6 per cent interest was charged by the plaintiff to the original action, on the principal sum, while it was being so paid. The only testimony as to this item of interest appears in the testimony of a witness for the defendants, and there is no record of any such charge in the written exhibits. We are not impressed with the weight of this testimony, particularly as it was elicited by a leading question, which was incompetent and served only to suggest the answer to the witness, which was later given in response to a following question, after the court had sustained an objection to the original one. We are of the opinion that no injury resulted to defendants by reason of the attempted collection, but rather that it was for their interest and benefit. In other words, the obligors on the bond showed no interest in the collection of the account and the fulfilment of their obligation as surety, but that whatever was done, was done by the plaintiff and inured to the benefit of the defendants in this cause. We do not believe that there was anything involved in the transaction which would have prevented the levying of an execution at any time, as there was no consideration to support the agreement.

The giving of instruction 12, for the reasons herein-before stated in this opinion, which was to the effect that the jury had a right to consider whether the defendants to the original cause of action had a good defense to the action of the plaintiff in that suit, was error.

During the course of the proceedings, a number of remarks were made by the court, which appeár to have been prejudicial to the plaintiff. Objection was made on the part of the plaintiff to the introduction of certain letters, passing between counsel and client, on the ground that they were privileged communications and were not competent. We do not care to go into these questions and answers, except to say very briefly that the remarks of the court to the effect that he could not understand why they should refuse to show the letters and that he could not see why anything should be concealed, were at least prejudicial. Nor do we wish to go fully into the remarks of the court to the effect .that the original plaintiff was a foreign corporation and that the defendants were citizens of this jurisdiction, nor any other remarks of the court, all of which were made in the presence of the jury, except to say that such remarks are not conducive to a fair trial, and are of benefit to neither party, and result only in continued litigation caused by reason of the error in making such comments.

We find that the bond upon which this action is predicated was in full force and effect at the time of the beginning of the suit; that there was no extension of time for payment, which resulted in material injury to the defendants; and that the failure to present the claim on the judgment, on behalf of the plaintiff, in the bankruptcy proceedings, did not release the surety.

For the reasons stated in this opinion, the judgment of the municipal court is reversed, and judgment is entered here, for the sum of $7,603.20, the amount due said plaintiff, including interest thereon, and the costs of this proceeding.

Judgment reversed and judgment here.

Taylor, P. J., and Holdom, J., concur.