text:
    Mrs. Wendell W. Hall, Appellant, v. Wallace F. Grosvenor, Appellee.
    Gen. No. 35,870.

      Opinion filed June 20, 1932.
    Walter Hamilton, for appellant.
    Edward W. Rawlins and Francis X. Busch, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff alleged in her declaration that she had suffered because of the negligent manner in which defendant had performed the Caesarean operation in that he left a gauze sponge in her abdomen. Upon the trial, at the conclusion of plaintiff’s case, upon motion of defendant, the court instructed the jury to find him not guilty. Plaintiff appeals from the judgment on the verdict, asserting that the case should have been submitted to the jury.

We only outline the evidence. In the early part of 1928, plaintiff, who was pregnant, employed the defendant, a licensed physician and surgeon, to care for her case, including delivery of the child. The doctor subsequently was of the opinion that the child should be delivered by the Caesarean operation and on August 23, 1928, performed this, and upon its completion sewed up the incision, leaving a laparotomy sponge in the abdomen. Plaintiff thereafter suffered many painful symptoms. On November first following she had a bowel evacuation and expelled from her rectum the sponge, which is approximately 18 inches long, 6 inches wide and % inch thick. After this she made a rapid recovery.

Defendant’s motion is predicated upon the claim that the mere fact that a sponge was left in the body of plaintiff after the operation creates no presumption of negligence or want of skill on the part of the defendant. While in some of the cases cited to support this view we may find an occasional expression to this effect, yet in these cases the court was considering all the circumstances of the operation. In no case do we find that the court had under consideration the isolated fact that a sponge or other foreign body was left in the wound after a surgical operation. It would seem to be self-evident that the failure to remove the sponge, standing alone and unexplained, is prima facie evidence of negligence. In McCormick v. Jones, 152 Wash. 508, it was held as a matter of law, “that when a surgeon inadvertently introduces into a wound a foreign substance, closes up the wound, leaving that foreign substance in the body, there being no possibility of any good purpose resulting therefrom, that act constitutes negligence,” and, “we do not believe that the minds of reasonable men differ on this subject.” Other cases to this effect are Ruth v. Johnson, 172 Fed. 191; Wynne v. Harvey, 96 Wash. 379; Davis v. Kerr, 239 Pa. 351; Saucier v. Ross, 112 Miss. 306; Reeves v. Lutz, 179 Mo. App. 61. Defendant’s brief says, “It is wholly inconceivable that Doctor Grosvenor or any other surgeon would knowingly or willingly leave a sponge in a patient’s body, or, if he susspected that one had been overlooked, not to take steps to have it removed.” This seems to concede that the sponge was left through inadvertence.

It is especially urged by the defendant that in the absence of expert medical testimony that the failure to remove the sponge was bad practice, plaintiff had failed to prove a case of negligence, relying on the oft quoted case of Ewing v. Goode, 78 Fed. 442. In that case the court was considering what it describes as “the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all.” Other like cases are predicated upon the very proper and reasonable assumption that with reference to diseases in the human body only men versed in the science 'of surgery or medicine are qualified to pass judgment upon the treatment given in a particular case. This is so firmly established as a general rule as hardly to be debatable. But it does not need the aid of expert testimony for any intelligent person to have an opinion as to the impropriety of leaving a foreign object in a wound, especially of the size of the sponge in the record before us.

However, in the case before us we have the testimony of an expert upon the condition presented— Doctor Heaney, who testified in substance that, under ordinary conditions there would be no medical reason for leaving in the abdomen a laparotomy sponge of the size of the one left in plaintiff’s abdomen.

The fact that the sponge was inadvertently left in the abdomen placed the burden of explaining this upon the defendant, and it was error for the court to instruct the jury against the plaintiff.

Various things in the record suggest the probability that if all the circumstances were made to appear, the facts would be like those presented in Olander v. Johnson, 258 Ill. App. 89. The opinion in that case in considerable detail describes an abdominal operation. There the operation was performed in a hospital with which all of the assistants in the operation were connected; the sponges were made by the nurses in the hospital, counted, put up in packages, and sterilized. Before the operation the clean sponges are counted by a nurse, and as needed are handed by her to the surgeon; as the sponges are used they are thrown into a receptacle by the surgeon and taken in charge by another nurse, and when the operation is finished, and before the incision is closed, the total of the two counts is compared. There it was shown that in abdominal operations the sponges are soaked with blood and secretions and may feel like any other tissue, and at times become so implicated with the intestines that they cannot be seen or felt readily, and it is sometimes almost impossible to distinguish the sponges from the tissues of the abdomen; there was also the evidence of a doctor that in such operations the surgeon must think fast and quickly and must be relieved of the responsibility of counting the sponges so as to be able to concentrate upon the operative technique; and that this is necessary, for it would jeopardize the life of the patient for the surgeon to attempt to keep count of the sponges used. In this case the judgment for the plaintiff was reversed on the ground that the evidence failed to disclose any want of care on the part of the doctor in respect to the removal of the sponge from plaintiff’s body. Under like circumstances, in Guell v. Tenney, 262 Mass. 54, it was held that negligence of the operating surgeon was not proven. To the same effect is Funk v. Bonham (Ind. App.), 151 N. E. 22. We are in accord with the statement in Olander v. Johnson, supra, that “Generally an operating surgeon is not legally responsible for the mistake of a nurse not his employee, where an operation is performed at a hospital not owned or controlled by the surgeon.”

If, upon another trial the facts and circumstances should appear like those in the case last referred to, we do not see how any liability for plaintiff’s suffering can be imposed upon the defendant.

In order that there may be a trial with all the facts presented, the judgment is reversed and the cause is remanded.

Reversed and remanded.

O’Connor and Matchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Eva S. McAdams, Appellee, v. Frank J. McAdams, Appellant.
    Gen. No. 35,761.

      Opinion filed June 20, 1932.
    William Gillespie, for appellant.
    Brown, Fox & Blumberg, for appellee; Jacob Logan Fox, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On September 24, 1931, Eva S. McAdams filed her bill for separate maintenance against her husband, Frank J. McAdams. The bill alleged their marriage on October 10, 1904; that they continued their marital relationship until June, 1931; that three children, two sons and one daughter, were born of the marriage; that the younger of the boys is 19 and the older 24 years of age, and the daughter 22 years of age; that one of the boys and the daughter are living with complainant. The bill further alleged that for upwards of two and a half years immediately prior to the filing of the bill, to wit, about March, 1929, defendant abandoned the home and refused to contribute to it and that he persisted in this desertion.

On October 1, 1931, complainant filed a petition in which she prayed for alimony pending the suit and for solicitor’s fees. She recites therein the filing of her original bill and the substance of it and avers that for many years past defendant contributed approximately $350 monthly for her support, but which he now refuses further to provide; that she is without property except such as is wrongfully withheld from her by defendant ; that he is 49 years of age, a healthy man, and possessed, as she is informed, of property of the market value of not less than $75,000 and probably $100,000; that he is employed as chief engineer of a large city school building and has earned compensation in excess of $7,500 per annum for several years last past; that for more than two years he has refused to give complainant information as to his investments and has refused to pay over moneys belonging to her held by him; that by reason of the aforesaid desertion, abandonment and failure to provide for complainant she has been obliged to employ counsel, and that an effective representation of complainant’s interest will require counsel to hold conferences and to investigate the facts in regard to “the extent of the several interests of petitioner and defendant in the proceeds of two parcels of real estate heretofore owned by your petitioner and defendant jointly, the beneficial ownership of the proceeds which form one of the issues to be-litigated in above entitled cause.” The work which it is averred it will be necessary for the solicitors to perform in that regard is set up in detail and expenses which it is said will be incurred are stated to be about $350. Complainant requested an allowance of $2,000 for solicitor’s fees and $350 for expense or suit money. This petition and the original bill are duly verified.

Defendant answered the petition denying that he was possessed of money belonging to complainant; denying that he has any property other than that listed and scheduled by him with complainant, except the income from his employment. He admits that for several years prior to the filing of the bill he contributed $325 a month toward the support of complainant, but states that he was then able to do so out of his capital income, which has since been cut off; that he now has a monthly income of $458 from his employment as chief engineer and receives $87.50 interest a month from a mortgage owned by him, and that this is his sole income. He denies that he has property of the value of $75,000 or $100,000; states that heretofore he received from the board of education of Chicago for overtime work income which has now been cut off by resolution of the board, and avers that the estimates as to the work of the solicitor for complainant are based on mere conjecture.

The court heard the evidence and on October 13, 1931, entered an order which found that for the two years last past defendant had earned from his employment a net income in excess of $7,200 per annum; that he was then in possession of real and personal property of not less than $25,000, from which he derived an annual income of not less than $1,000; that for a period of upwards of three years last past defendant had contributed the sum of about $325 monthly to the support and maintenance of complainant; that complainant claimed the right to an accounting from defendant as to the proceeds derived by defendant from the sale of two parcels of real estate alleged to have been theretofore held in joint tenancy by complainant and defendant; that complainant had no other real or personal property and no income and was totally dependent upon defendant for support and maintenance; that the trial of the accounting issue would require a reference to a master in chancery to determine complainant’s right to an accounting and the basis of such accounting if decreed; that the solicitors of complainant would be obliged to examine the chain of title to the two parcels of real estate, procure original contracts and deeds and copies of recorded instruments to show how title to said property was acquired, and held by complainant and defendant, and what disposition was made of it; that the solicitors would be obliged to interview and take the depositions or testimony of divers witnesses before the master on the matters pertaining to the disputed issue of complainant’s ownership of a share and interest in the proceeds of the sale of the said parcels of real estate, and that the sum of $750 was a reasonable sum to be paid to complainant on account of her solicitor’s fees. It was therefore decreed that defendant during the pendency of the suit pay to complainant $300 monthly for her support and maintenance and the said sum of $750 on account of and in partial payment of her solicitor’s fees, and that these allowances should be taken into consideration on the final hearing of the cause. To reverse this order defendant has perfected this appeal.

It is contended in behalf of defendant that the allowance of $300 a month to complainant is excessive, and practically all the leading cases on this subject in this State are cited. Harding v. Harding, 144 Ill. 588; French v. French, 302 Ill. 152; Gilbert v. Gilbert, 305 Ill. 216; Herrick v. Herrick, 319 Ill. 146, are only a few of the numerous cases which have been called to our attention. It is urged that the amount of temporary alimony should be less than that allowed upon the final decree, and this is ordinarily, although not always, true. Defendant also urges that as a general rule the temporary allowance should be from one-fifth to one-fourth of the husband’s income. Such allowance has been granted in many cases, but we think it can hardly be said that it has been laid down as a general rule. We think the cases establish that where the suit of the wife is prosecuted in good faith the amount of alimony to be allowed pending the suit shall be controlled, first, by the necessities of the wife as shown by the circumstances, and second, by the financial ability of the husband to make the necessary contribution to the end that in the prosecution of her suit she shall be placed upon an equality with him. That the amount is not limited solely by the income, but that the amount of property possessed may be taken into consideration, see Low v. Low, 133 Ill. App. 613; and that this court upon review will refuse to set aside the order of the chancellor, except for abuse of discretion, see Harding v. Harding, 144 Ill. 588; Cooper v. Cooper, 185 Ill. 163; Low v. Low, supra; and Longhi v. Longhi, 193 Ill. App. 21.

Defendant has discussed quite in detail the evidence as to the income and value of the property held by him. If it should appear upon the final hearing that the chancellor has now put too high an estimate upon these, that matter can be then taken into consideration; but in view of the fact that according to defendant’s own testimony the amount allowed for complainant’s maintenance pending the suit is at least $25 a month less than the sum which he has voluntarily paid hitherto, we find it difficult to believe that the trial court abused its discretion or that there is any justification for our interference.

A much more serious question is raised by the contention of defendant that the allowance of $750 for solicitor’s fees pendente lite is excessive. The proceedings which appear in the record would indicate that in its principal aspect the case is little more than a very simple one for separate maintenance where the wife alleges that she is living separate and apart from her husband without her fault, and we would regard an allowance of $750 on account of solicitor’s fees in such a suit under circumstances here appearing as excessive. This case, however, goes further and the pleadings indicate that it is the expectation not only to try the issue of whether complainant is entitled to separate maintenance but also to determine the respective rights of the parties in and to the proceeds of two parcels of real estate which formerly stood in the names of the husband and wife as joint tenants. Defendant contends that these matters are without the jurisdiction conferred upon a court of chancery by the Separate Maintenance Act, Cahill’s St. ch. 68, ¶¶ 22, 23, and that it was therefore improper to make an allowance for solicitor’s fees covering such services. Defendant cites Cooper v. Cooper, 160 Ill. App. 449, Johnson v. Johnson, 125 Ill. 510, with many other cases, such as Ross v. Ross, 69 Ill. 569, 570; Raab v. Raab, 150 Ill. App. 554; Appeal of Spohr v. Kraus, 197 Ill. App. 348; Reifschneider v. Reifschneider, 144 Ill. App. 119; Smith v. Johnson, 321 Ill. 134; Smith v. Smith, 334 Ill. 370. These cases are all to the effect that a court of chancery has no inherent power either to grant a divorce or to decree separate maintenance independent of statutes on these subjects. The opinions point out that in England the ecclesiastical courts had exclusive authority to grant divorces a mensa et thoro; that Parliament alone had power to dissolve the. marriage contract absolutely, and that a proceeding for separate maintenance, as well as one for divorce, is therefore a purely statutory proceeding to be carried on according to the provisions of the statute and not in the exercise of powers inherent by reason of general chancery jurisdiction. The subject was considered in Thomas v. Thomas, 250 Ill. 354, where it was held that a conrt of chancery was without equitable jurisdiction to decree the care and custody of children as between their parents except as provided by the Divorce Act and in case of a divorce granted. In Hoffman v. Hoffman, 330 Ill. 413, upon the same theory and for the same reasons, it was held that a decree of separate maintenance for a wife against her husband was not res adjudícala to a charge of cruelty in his suit afterwards brought for a divorce. In Smith v. Smith, 334 Ill. 370, it was held that where in a proceeding for divorce the husband and wife had agreed upon terms of alimony which had been included in a decree entered, she could not thereafter by petition under section 18 of the Divorce Act, Cahill’s St. ch. 40, ¶ 19, have that decree reviewed upon the ground that the agreement was induced by fraud and that the shares of stock had decreased in value. Such relief, it was held, could be secured only by a proper proceeding under the general equity powers of the court. Defendant points out that this is the general rule applicable to proceedings which are purely statutory, as was held in Kelly v. Kelly, 285 Ill. 72, where the filing of a bill to contest a will was held to be a statutory proceeding in which the jurisdiction of a court of chancery was limited by the statute.

That the proceeding for separate maintenance is essentially different from a proceeding for divorce appears from an examination of the respective statutes. The fundamental difference is that a decree of divorce sunders and ends the marriage relationship. A decree for separate maintenance continues the marriage relationship. The purpose of the separate maintenance statute seems to have been to grant to married women living separate and apart from their husbands without fault an action in equity which would remedy the defects of the common law in that regard. Ross v. Ross, 177 Ill. App. 542. A complainant who has secured a decree of separate maintenance may merely' by resuming marital relations abrogate the decree. Newman v. Newman, 240 Ill. App. 193. The divorce statute gives power to settle property rights only in case a divorce is awarded. The, separate maintenance statute does not mention or grant such power. The omission is significant and persuasive.

Complainant cites two cases which it is contended establish the rule that a court of equity in an action for separate maintenance has jurisdiction to pass upon and settle the property rights of the parties. One of these is Burgess v. Burgess, 189 Ill. App. 513. In that case Morris Cohen, intervening in a separate maintenance suit wherein a receiver had been appointed for the property of defendant claimed by complainant, filed a petition alleging that he had obtained a judgment against defendant on which an execution issued had been returned, “No .property found,” and asked authority to garnishee the receiver. Defendant demurred to the petition. The demurrers were sustained and Cohen appealed claiming the right to the property in the hands of the receiver as against complainant. The opinion in that case states that it was contended that the court was without jurisdiction in a separate maintenance action to adjudicate the property rights of the parties, citing in support of the contention Rosenbleet v. Rosenbleet, 122 Ill. App. 408. That case was distinguished, and, on the authority of Morrison v. Morrison, 140 Ill. 560, and Longshore v. Longshore, 200 Ill. 470, 476, it was held that the court had such jurisdiction. The question there, however, was between a receiver and a third party whose petition invoked the general chancery jurisdiction of the court.

The second case relied upon is Decker v. Decker, 279 Ill. 300, where it appears that in a suit for separate maintenance the court proceeded to settle the property rights of the parties, no question of its jurisdictipn to clo so having been raised. There are many authorities to the effect that a question not presented to the court will not be considered as having been decided and that the language used by the court in an opinion in such case is mere obiter dictum and not the law. Bratsch v. People, 195 Ill. 165; Schulte v. Warren, 218 Ill. 108, 124; Rhoads v. Chicago & Alton R. Co., 227 Ill. 328, 337; People v. Lowenstein, 297 Ill. 395, 398; Prall v. Burckhartt, 299 Ill. 19, 36. Even if we would hold that these two cases are authority for the proposition that in the absence of objection a court of equity in a separate-maintenance suit might on final decree settle some property rights of the parties, it would not follow that complainant is entitled to solicitor’s fees for the prosecution of that part of her cause.

Our conclusion is that since the court was without jurisdiction to award solicitor’s fees to complainant for the preparation for the trial of her case as to property rights involved, and was limited to the power of granting a just, proper and reasonable fee for her solicitor in preparing and trying the maintenance suit proper, the allowance of $750 was excessive. We think an examination of the whole record indicates that $300 would be a reasonable amount for the services in the preparation and trial of the maintenance suit, and that part of the order allowing solicitor’s fees will be reversed and the cause remanded with directions to the chancellor to enter an order for the payment of $300 to complainant on account of her solicitor’s fees. That part of the order which directs the payment of alimony to complainant pending the suit will be affirmed.

Affirmed in part and reversed in part and remanded with directions.

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


author: Mr. Justice O’Connor

text:
    Elaborated Ready Roofing Company, Appellee, v. R. C. Hunter, Appellant.
    Gen. No. 35,813.
    Opinion filed June 20, 1932.
    Joseph E. Snowden, for appellant; Edward E. Wilson, of counsel.
    Alfred Newton, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

October 28, 1931, this cause was heard without a jury, and after hearing the evidence and argument of counsel, the court found that there was due from the defendant to the plaintiff $833.26 at the date the judgment by confession was entered, the judgment was confirmed and the defendant appeals.

The record discloses that on November 25, 1930, plaintiff caused judgment by confession to be entered against the defendant for $833.26. February 6th following the defendant filed his petition seeking to have the judgment opened up, and for leave to defend. In this petition the defendant set np that plaintiff’s claim was based upon an alleged contract between the parties, whereby plaintiff agreed to perform certain work and labor and to furnish materials in repairing certain buildings belonging to the defendant, for which defendant agreed to pay. The petition further set up that plaintiff did not perform the work and labor or furnish the material as provided for by the contract, but that plaintiff tore down and destroyed the defendant’s property and refused to replace and rebuild it, and therefore the defendant did not owe the plaintiff anything. This petition was sworn to by the defendant. The motion of the defendant to open up the judgment was denied, the defendant appealed, and upon consideration by this court the judgment of the municipal court was reversed and the cause remanded with directions to open up the judgment and to give the defendant leave to defend on the merits. Elaborated Ready Roofing Co. v. Hunter, 262 Ill. App. 380. Afterwards, on August 4, 1931, the mandate of this court was filed in the office of the clerk of the municipal court of Chicago, and on August 31 the cause was reinstated, and the defendant given leave to defend and to demand a jury trial, which demand defendant filed on that date. September 11, 1931, the cause was set for trial on October 5; on October 5, the cause was continued until October 21, 1931; on that date it was again continued until October 27, and on the latter date to October 28. When the cause was reached for trial October 28 the defendant moved for leave to file an amended affidavit of merits and to strike plaintiff’s statement of claim. The motions were denied and the cause then went to trial. Plaintiff put in its evidence to the effect that it had performed the work required of it by the contract and that the defendant had approved the work as done. The defendant offered no evidence and thereupon the court confirmed the judgment theretofore entered by confession as above stated.

In this court the defendant contends that when the cause came on for trial he sought to file an amended affidavit of merits by which he set up that plaintiff in his statement of claim had declared upon a promissory note and that there was no promissory note mentioned in the statement of claim; and it is contended that the judgment should be reversed because the plaintiff’s statement of claim is insufficient to sustain it. There is no merit in this contention. Whether plaintiff’s statement of claim states a cause of action cannot be urged by defendant because he did not seek to raise any such question until the case was reached for trial October 28. The case hqd been to this court, where the comment was made as to the nature of plaintiff’s statement of claim, and afterward it had been redocketed, and the defendant given leave to defend upon the merits as this court ordered; afterward the defendant demanded a jury trial, but later waived it; the cause was continued from time to time and no complaint made concerning the statement of claim until the case was called for trial. In these circumstances we think the learned trial judge was entirely warranted in denying the defendant’s motion.

It has long been the settled rule that in cases of the 4th class in the municipal court, after hearing on the merits and no objection being made as to the sufficiency of the pleadings, the case is to be decided on the evidence. In discussing actions of the 4th class in the municipal court in Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311, the court said (p. 312): “Actions of this class, under said act, are brought without forms of written pleading. (Hurd’s Stat. 1908, sec. 3, p. 665.) ” And continuing the court said (p. 313): “As to this class of cases under the Municipal Court Act, where no written pleadings are required, the same rule will govern as controls the form of actions before justices of the peace. We have held that ‘it is the well settled practice that in such courts (i. e., where written pleadings are not required) the party suing need not even name his action, or if misnamed, that will not affect his rights, if upon hearing the evidence he appears to be entitled to recover and the court has jurisdiction of the defendant and of the subject matter of the litigation. ’ ”

We have followed the Edgerton case in numerous cases decided by this court, and the rule was again announced by our Supreme Court in Bruner v. Grand Trunk Western Ry. Co., 319 Ill. 421 (affirming 236 Ill. App. 541). In that case the Supreme Court said (p. 425): “Defendant insists the suit was in contract against joint defendants, and the judgment should have been against both defendants or neither. This conténtion the Appellate Court held was not tenable, as the action was of the fourth class to recover damages for negligence, and may be treated as in tort. No written pleadings are required, and the rules applicable are the same as govern actions before justices of the peace. That holding is in accordance with Edgerton v. Chicago, Rock Island and Pacific Railway Co., 240 Ill. 311.”

On the former appeal of this case (262 Ill. App. 380) we said (p. 384): “In passing on a motion of the defendant to open up a judgment entered by confession and for leave to defend, equitable circumstances are controlling. In the instant case, if what the defendant swears to in his petition is true — and it must be so assumed on this record — he is being mulcted out of more than $800 because he swears that the plaintiff did not repair defendant’s buildings as it agreed, but on the contrary tore them down and refused to replace or rebuild them. ’ ’ After expressing this view we reversed and remanded the cause to permit the defendant to defend on the merits, but he failed to do this although he swore in his petition on the former appeal, as-above stated, that the plaintiff .did not repair the buildings as agreed, but on the contrary tore them down, yet when he was given an opportunity to go on the stand he failed to do so. It is plain that he has no defense to this cause, and the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

McSurely, P. J., and, Hatchett, J., concur.


text:
    Willis D. Storer, Appellant, v. Samuel Brock, Appellee.
    Gen. No. 35,910.
    Opinion filed June 20, 1932.
    Frank A. McCarthy and John E. Toomey, for appellant.
    Samuel S. Pollyea, George A. Yinik and Irving Goodman, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover $1,125 with interest thereon, claimed to be due him from the defendant under the terms of a written contract. A number of successive affidavits of merits, filed by the defendant, were stricken on motion of plaintiff. Afterwards the defendant filed its fifth amended affidavit of merits which plaintiff moved to strike; thereupon, the defendant made a countermotion to strike plaintiff’s statement of claim on the ground that it did not state a cause of action. The defendant’s motion was sustained, plaintiff’s statement of claim stricken, his suit dismissed, and he appeals.

The only question for decision is whether the written contract entered into between the parties was valid and binding; the court held that it was not. The pertinent provision of the contract is as follows: “It is further agreed that Dr. Sam Brock hereby agrees to pay to said Dr. Willis D. Storer 'during his lifetime, the sum of One Hundred and Twenty-five ($125.00) Dollars per month for the period of two years from the date hereof, and the sum of One Hundred ($100.00) Dollars per month for each and every month thereafter, — it being specifically understood and agreed that said Dr. Willis D. Storer agrees not to engage in the practice of medicine independently of Dr. Sam Brock in Chicago and that when he returns to active practice with Dr. Brock additional compensation for him shall be mutually agreed to.” '

The defendant contends that since the contract restrains plaintiff, a physician, from practicing his profession in the City of Chicago for an unlimited time, it is unreasonable, contrary to public policy and void, and cites Tarr v. Stearman, 264 Ill. 110 (affirming same case, 185 Ill. App. 45); Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616; Andrews v. Kingsbury, 212 Ill. 97; Lanzit v. Sefton Mfg. Co., 184 Ill. 326; Hursen v. Gavin, 162 Ill. 377; Rakestraw v. Lanier, 104 Ga. 188; Davis, Inc. v. Christopher, 219 Ala. 346; Henschke v. Moore, 257 Pa. 196; Mandeville v. Harman, 42 N. J. Eq. 185; Freudenthal v. Espey, 45 Colo. 488; Estes v. Russ, 1 Ch. Div. 468 (83 New Series, Chancery Div., Law Journal, 1914, p. 329.)

In the Tarr case (264 Ill. 110), where a bill was filed praying for an injunction and other relief, it appeared that Tarr was engaged in equipping dental offices and that Stearman, a licensed dentist, practiced his profession in the office, using Tarr’s equipment. The contract between the parties provided that Stearman should pay Tarr certain sums and at the end of a certain period the equipment and office would be his. One of the provisions of the contract was that Stearman, the dentist, would never again, in the City of Springfield or within 25 miles thereof, practice dentistry except as an employee of Tarr. It was held that this provision, under the facts disclosed in that case, was against public policy and unenforceable. But the precise question before us was not decided.

In the Andrews case (212 Ill. 97), the facts disclosed that Andrews sold a weekly newspaper to Kingsbury and as part of the consideration agreed not to enagage in the newspaper business in the City of Olney for a period of five years, provided Kingsbury should remain in the newspaper business that length of time; and it was held that this agreement was valid. Obviously whether the contract would have been enforced if the restrictive covenant had been unlimited as to time was not involved.

To the same effect is Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616, where the restrictive covenant in the contract for a period of eight years was upheld.

In the Lanzit case (184 Ill. 326), the contract between the parties provided that the seller of a paper novelty manufacturing business would not engage in that business within the States of Illinois and Indiana for a period of 10 years. In holding the contract void as being contrary to the public policy of this State, the court said (p. 331): “The effect of the contract, if enforced as decreed below, would be to deprive the public — the people of the whole State — of the industry and skill of appellant in the particular trade or business in which he may be most skillful and useful, and compel him to engage in some other business or move to another State in order to support himself and family.”

In the Gavin case (162 Ill. 377), a contract, by a retiring member of the firm engaged in the undertaking and livery business, which provided that he was not to engage in such business for a period of five years within the City of Chicago, was held valid. Obviously, the question whether the contract would have been upheld if the time had been unlimited, was in no way involved.

In the Rakestraw case (104 Ga. 188), two physicians, Bakestraw and Lanier, residing in the town of Oliver, formed a partnership for the practice of their profession. The contract recited that in consideration of the benefits that would flow to Bakestraw by reason of the formation of the partnership, he agreed that in case the partnership was dissolved he would not locate or engage in the practice of his profession as a physician in the town of Oliver or within a radius of 15 miles therefrom without the written consent of Lanier. The partnership was dissolved and after-wards Lanier claimed that Bakestraw was violating the terms of the contract and an injunction was sought. It was said that the construction of this contract was governed by the law of contracts made in restraint of trade, and that the decisions were “distressingly in conflict.” The court then considered the authorities and distinguishes between purely mercantile contracts and those which bind one to desist from practicing a learned profession, and said (p. 198): “We think a clear distinction must be taken between the class of cases binding one who has sold out a mercantile or other kind of business, and the good-will therewith connected, not to again engage in that business within a given territory, and that class of cases binding one to desist from the practice of a learned profession,” but held that the contract there involved, although'not limited as to time, was not illegal for that reason, but ■ was illegal only because it restrained Rakestraw more than was necessary for the protection of Lanier. The court there further said (pp. 201, 202): “Being limited as to space, although unlimited as to time, we find that it may properly be classed among contracts in partial restraint of trade. When we seek its terms to ascertain whether it is reasonable, made to protect the promisee, and not oppressive on the promisor, we find that no money was paid by the promisee and no property sold by the promisor; . . . We find that under the terms of this Contract, if the promisee . . . should remove from the town of Oliver, . . . if he should become permanently incapacitated, by disease, from continuing the practice of medicine; if he should die,— the promisor in any event would not be at liberty to practice his profession in Oliver, nor within 15 miles radius of that town. No matter what the changed conditions might be, . . . It must be clear, therefore, that the restrictions imposed upon the promisor in this contract were larger than were necessary for the protection of _the promisee.”

In Davis, Inc. v. Christopher (219 Ala. 346), an injunction was sought to prevent the violation of an agreement whereby one party sold to another his life insurance agency and agreed “ ‘not to write or solicit fire, tornado or fire and theft insurance for any insuranee company for a period of three years.’ The agreement did not confine the prohibition to any territory or locality. The general rule is that the contract should specify a reasonable territory and time. In fact such is now embraced in section 6827 of the Code. We think this section of the Code but expressed the law as theretofore settled. ’ ’ Obviously the case is not an authority for the proposition that such contracts as the one in the instant case must be limited as to time or they will be void, because the time in the Davis case was expressly limited to three years.

In the Henschke case (257 Pa. 196), a contract which provided that the licensee would not use a patented apparatus “for feeding horsehair from a bundle to a wrapping device,” and that he would not thereafter ‘ ‘ either directly or indirectly, engage in the business of manufacturing or selling the same or any competing material in the United States,” was held invalid because it was unreasonable in that it included the whole United States and that it was also unreasonable because it was unlimited as to time.

In the Mandeville case (42 N. J. Eq. 185), there was an application for an injunction to restrain the defendant from violating a restrictive covenant of a contract made between two physicians, whereby the defendant was employed by the complainant as an assistant, and the contract provided that the defendant “would not engage in the practice of medicine or surgery in the City of Newark at any time hereafter.” It was said that the question whether restraint, which was to endure during the life of the promisor, was reasonable or not, was undecided in New Jersey and the court held that the complainant was not entitled to a preliminary injunction but must wait until the case was heard. It was there stated that there is a distinction between a contract which was in partial restraint of trade and one which involved professional skill. The court there said (p. 193): “Professional skill, experience and reputation are things which cannot be bought or sold. ’ ’

In the Freudenthal case (45 Colo. 488), an experienced physician who had a large practice, employed a young assistant on a stated salary for a definite period. The contract further provided that upon the termination of the relationship the assistant would not practice medicine or surgery for a period of five years in the City of Trinidad, Colorado, and it was held that the contract was valid and binding.

In Estes v. Russ, 1 Ch. Div. 468 (83 New Series, Chancery Div., Law Journal, 1914, p. 329), a contract was entered into between a pathologist and a physician who employed him, which provided that the pathologist would not engage in similar work within a distance of 10 miles from plaintiff’s laboratory. It was-held that the restriction was for the life of the defendant and that it was not necessary or reasonable that he should be restrained for his lifetime, and the restriction was held invalid.

On the other hand, it has been held that a contract restraining a person from practicing his profession or conducting his business for his lifetime, where the contract is upon a valuable consideration and the space or territory is reasonably limited, is not invalid as being against public policy.

In considering the question of restrictive covenants in contracts, it is said in 13 Corpus Juris, pp. 468-470: “According to the early common law of England, an agreement which placed any restriction on a man’s right to exercise his trade or calling was void as against public policy. But it is to be remembered that at the time when this doctrine was held a man could not lawfully exercise any trade to which he had not been duly apprenticed and admitted, and one who was so admitted was obliged by statute to follow and exercise his trade under a penalty.” This doctrine has been relaxed because the reason for it does not now exist. One is not now restricted to a particular trade or calling; so that now agreements “in restraint of trade were classified under three heads: (1) Where the restraint was unlimited as to both time and space; (2) where it was limited as to tinie but unlimited as to space; and (3) where it was limited as to space but unlimited as to time. In the first and second cases the agreement was void; in the third it was valid. These fixed rules were followed by both English and American courts until within the past few years, when a new view, was introduced making the validity of the agreement dependent on the reasonableness of the restraint.

“. . . Even according to the early rule, it is no objection to an agreement -reasonably limited in point of space that it is unlimited in point of time and may therefore continue during the whole life of the party restrained. Thus the courts have repeatedly sustained as valid agreements by the vendor of a business, trade, or profession, or by employees, etc., without limitation as to time, not to carry on the business, trade, or profession in a certain town, village, city or county, even though it be a large city. ” And in the footnote numerous authorities are cited, some of which hold there is no distinction between a trade and a profession. ‘' The courts have often held valid agreements not to practice medicine in a certain town or county. McCurry v. Gibson, 108 Ala. 451.” This footnote also cites the cases of Ryan v. Hamilton, 205 Ill. 191; Linn v. Sigsbee, 67 Ill. 75; French v. Parker, 16 R. I. 219, which expressly repudiates the holding in the New Jersey court in Mandeville v. Harman, 42 N. J. Eq. 185, above referred to.

In French v. Parker (16 R. I. 219), a practicing physician and surgeon of the City of Pawtucket, for a valuable consideration assigned his practice to another physician and surgeon, who was then practicing in another city, and covenanted with the latter not to engage “at any time thereafter ‘in the practice of medicine or surgery in said City of Pawtucket,’ ” and it was held that the covenant was valid though unlimited as to time.

We refer to a few other authorities that hold a restrictive covenant in an otherwise valid contract will be upheld although it is unlimited as to time. Goodman v. Henderson, 58 Ga. 567; Up River Ice Co. v. Denler, 114 Mich. 296; Foss v. Roby, 195 Mass. 292; Cook v. Johnson, 47 Conn. 175; Webster v. Williams, 62 Ark. 101; and Pelc v. Kulentis, 257 Ill. App. 213. In a clear and concise opinion delivered by Mr. Justice Jones in the case last mentioned, a restrictive covenant, whereby the vendor of a retail grocery and meat market business in the City of North Chicago agreed that he would not engage in that business or any other kind of business in that city, was upheld although it was unlimited as to time. We are in accord with the reasoning of the opinion in that case and the conclusion reached, and think the rule announced there is applicable to the case before us.

That the rule which formerly held restrictive covenants in agreements void has been greatly relaxed and in many places abrogated, appears from the authorities which we cited and discussed in the case of Parish v. Schwartz, 252 Ill. App. 591. We upheld the restrictive covenant in that case because of the holding in the Lanzit case, supra, 184 Ill. 326, and Union Strawboard Co. v. Bonfield, 193 Ill. 420; and on appeal the judgment in the Parish case was affirmed by the Supreme Court (344 Ill. 563) apparently on the principle of stare decisis. The court, after referring to the Lanzit and Union Strawboard cases, said that if public policy required a change of the law as announced in those two cases, the remedy might be found by application to the legislature. In that case three of the justices dissented.

The defendant further contends that the contract is void because the enforcement of it would prevent Dr. Storer from practicing his profession as a physician in the City of Chicago, which has a population of more than three million, and therefore the territorial limitation is unreasonable. We think this contention cannot be sustained. In these days of rapid transportation — street cars, motor buses and automobiles — it takes but a very short time to travel from one end of the city to another. If the doctor should see fit to open an office in Oak Park, Evanston or other suburb, he would be readily accessible to those who sought his professional services. We think it cannot be said as a matter of law, and without any evidence but the contract before us, that the inhabitants of Chicago would be unduly prejudiced unless Dr. Storer were permitted to practice his profession in the city.

In the instant case we hold that the restrictive covenant in the contract mentioned in plaintiff’s statement of claim is valid, and that the court erred in striking the statement of claim.

The judgment of the municipal court of Chicago is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

McSurbly, P. J., and Hatchett, J., concur.


author: Mr. Presiding Justice Kerner

text:
    Peter Wojtas, a Minor, by Walerya Wojtas, his Mother and Next Friend, Defendant in Error, v. Peter Rachel et al., Defendants. Peter Rachel and Mary Rachel, Plaintiffs in Error.
    Gen. No. 35,697.

      Opinion filed June 28, 1932.
    Guerine & Brust, for plaintiffs in error; Guy O. Guerine, Paul W. Brust and Sidney R. Tarkoee, of counsel.
    Gallagher & McDevitt, for defendant in error.
   Mr. Presiding Justice Kerner

delivered the opinion of the court.

March 23, 1928, defendant in error recovered in the superior court of Cook county a judgment against Peter Rachel for $3,500 in an action in tort for personal injuries received by Peter Wojtas on December 13, 1924, by being struck by an automobile driven by said Peter Rachel. April 23, 1928, defendant in error sued out of said court a writ of capias ad satisfaciendum against Peter Rachel, and June 22, 1928, the sheriff of Cook county executed the writ by arresting Peter Rachel, who thereafter filed his petition in the county court of Cook county under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, and filed a schedule of all his assets, containing a list of personal property valued at less than $400, and was thereupon relieved from imprisonment. August 13, 1928, defendant in error filed his creditor’s bill which alleged that said judgment still remains unpaid and in full force and effect, and that said Peter Eachel possesses real estate or some equitable or legal interest in real estate not disclosed by said schedule (describing certain real estate), and that he has money on hand and in some bank or held for his use and benefit, and that he is the equitable owner of bonds of corporations and notes executed by individuals, and seeks in particular to reach the interests of Mary Eachel, John Kapka and Ludwig Eachel in certain real estate described in the bill, and also seeks to reach certain personal property in the possession of the Melrose Park State Bank and Citizens State Bank.

The defendants, Peter Eachel, Mary Eachel, Ludwig Eachel, Melrose Park State Bank and Citizens State Bank, answered, and the cause referred to a master, who reported as his conclusions from the facts found that prior to the rendition of said judgment Peter Eachel purchased a piece of real estate which he subsequently sold for $5,000, and that with. this money he purchased a parcel of land in Bellwood, Illinois, in which he conducted a general store, during which time he was employed as a carpenter, while Mary Eachel was active in the management and operation of said store; that this property was sold on August 31, 1925, to George E. Brannan for $21,762.80, which sum was paid by check, payable to the order of Peter Eachel and cashed by him at the Citizens State Bank; that thereafter a savings account was opened in the name of Mary Eachel, and there was deposited in said account on ‘September 2, 1925, $8,000, which was withdrawn on September 18, 1925; that $5,000 was redeposited in said account October 7, 1925, and thereafter withdrawn by Mary Rachel; that prior to January 1, 1923, Peter Rachel had a savings account with the Melrose Park State Bank and that on September 1, 1925, he deposited $1,200; September 5, 1925, he deposited $10,000, the proceeds of the Brannan check, and September 5, 1925, he had a balance in said bank of $14,930; that with the funds withdrawn from the two accounts, the building in Bellwood, which had been sold to Brannan, was repurchased and moved to a lot at 3521 Adams street, where the building was remodeled and enlarged, and Peter Rachel and Mary Rachel established in this building another general store, money for this purpose being withdrawn from the said several bank accounts. That the savings account of Peter Rachel opened with the Melrose Park State Bank was continued in his name until April 20, 1925, at which time he had on deposit a balance of $4,600.82, and on that date all of said balance was transferred to another account under the name of John Kraus; that out of the money so deposited in the name of John Kraus, certain described real estate was purchased of Stanislawa Walczyk and Frank Walczyk, her husband, and July 4, 1925, the title conveyed to Mary Rachel; that certain other real estate was conveyed by Sebastino Lorenzo and his wife, and Louis Senese, Jr., and his wife, August 4; 1925, to Mary Rachel, and certain other real estate was conveyed by Thomas J. Duffy to Mary Rachel on December 6,1927 ; that the following real estate mortgage loans consisting of bonds, principal notes, interest notes and trust deeds securing them, were purchased of the Melrose Park State Bank: Tony Slabis loan purchased October 10, 1925, for $9,000; L. Pottinger loan purchased November 3,1926, for $4,000; Elmer W. Gone loan purchased August 11, 1927, for $4,500; Glen Ellyn bond purchased October 10, 1925, for $1,000; William loan purchased August 11, 1927, for $500; Pearson bonds purchased September 14, 1929, $3,000; Pearson bond No. 15 purchased September 22, 1928, for $500; No. 30 Antoinette Apartments, $300; note of Joe Cimino for $3,000, all of said purchases being in the name of plaintiffs in error, titles to which were taken in the name of Mary Kolczock, that being the maiden name of Mary Rachel.

That the store at 3521 Adams street and the funds derived therefrom were the property of Peter Rachel, and all of the bonds and all of the mortgages are the property of said Peter Rachel; that title to said real estate was taken in the name of Mary Rachel for the purpose of concealing the assets of Peter Rachel from defendant in error and to hinder and delay him in the collection of his said judgment, and that the equitable title to said property is in said Peter Rachel, and that said Mary Rachel is holding the title to said real estate and the title to said real estate bonds and mortgages as trustee for said Peter Rachel for his use and benefit ; that the funds used for the purchase of mortgages, bonds and real estate in the name of Mary Rachel belong to Peter Rachel; that the bank account opened in the name of John Kraus was in fact the account of Peter Rachel, and that the moneys withdrawn therefrom used in the purchase of various mortgages and bonds were the funds of Peter Rachel and the master recommended that a decree be entered in accordance with his findings and conclusions. Objections to the report were ordered to stand as exceptions. There was a hearing on the exceptions, which were overruled, and the report was confirmed and a decree was'entered accordingly. To reverse this decree Peter Rachel and Mary Rachel sued out a writ of error to the Supreme Court, which court on December 1, 1931, transferred the cause to this court.

At the outset it is contended that where a judgment creditor seeks to have a judgment paid out of equitable assets of a judgment debtor an execution must have been issued and returned unsatisfied in whole or in part and many cases are cited in support of this contention. It is true that a court of equity will not lend its aid where there is an adequate remedy at law, and that it requires that the plaintiff in the judgment shall have made a bona fide attempt to collect his debt by execution against the property of the defendant. The object of the proper return of the execution is to show that the judgment creditor has exhausted all his remedies at law before he applies to the chancery courts for relief. Otherwise it would not appear but that the party has a complete remedy at law. (Newman v. Willetts, 52 Ill. 98; Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 Ill. 305; Durand & Co. v. Gray, Kingman & Collins, 129 Ill. 9; Scheubert v. Honel, 152 Ill. 313.) The authorities hold, however, if the judgment debtor wishes to take advantage of that defense he must set it up in his answer, and if the objection is not presented by plea or demurrer in the first instance it cannot be urged on error. (Hart v. Oliver, 296 Ill. 209, 214; Birney v. Solomon, 348 Ill. 410, 413, 414.) The subject matter of a creditor’s bill is not wholly foreign to a court of equity, and the rule that equity will not take jurisdiction where a complete remedy exists at law is intended for the protection of the court and not for the purpose of shielding defendants from their just obligations (Curtis v. LeMoyne, 248 Ill. App. 99, 103), and the objection comes too late after the judgment debtor has filed an answer without taking the exceptions, and the court may, if it sees proper, proceed to grant relief notwithstanding there may be an adequate remedy at law, if the relief sought is not of such character as to be wholly foreign to chancery jurisdiction. (Hart v. Oliver, supra, 214, 215.) In the instant case Peter Eachel demurred to the bill, .which being overruled, he answered, and in his answer he admitted Ms insolvency and did not raise the question that defendant in error had an adequate remedy at law. The other plaintiff in error answered the hill, but she, too, did not raise any defense of inadequacy of remedy at law. This defense is presented here for the first time. It comes too late. (Kaufman v. Wiener, 169 Ill. 596, 602; Crawford v. Schmitz, 139 Ill. 564, 572; Smith v. Love, 286 Ill. 570, 572; McIntyre v. McIntyre, 287 Ill. 544, 548.) Furthermore, in view of the fact that Peter Rachel admitted he was insolvent, the issuance of an execution against his property would have amounted to a useless act. Under such circumstances, it was held it was unnecessary to issue an execution on a judgment and have it returned unsatisfied before the creditor could maintain a creditor’s bill. (Bay v. Cook, 31 Ill. 336, 348; Federal Land Bank v. Tawzer, 129 Kan. 93; Steele v. Reid, 284 Mo. 269.) The judgment, execution and return are but the best evidence of these facts, but they are not the only method or the only evidence by which it may be shown that the remedy at law is wholly inadequate and incomplete. (Distillery Co. v. Zeiger, 9 N. M. 31, 34.)

It is next claimed that Walerya Wojtas, the mother and next friend of the plaintiff in error, had no right to file the bill and collect a judgment on his behalf, and that the court erred in providing that payment be made to the defendant in error or Ms solicitors. The decree in the instant case provided for the appointment of a receiver of the real and personal property of Peter Rachel, and it also provided that if Peter Rachel did not pay Peter Wojtas, a minor, within three days from the entry of the decree, the amount found due by the decree, then the receiver was authorized to pay the defendant in error the amount found due; and further provided that said receiver shall pay to the defendant in error, or to his solicitors, the amount due under the decree. There is no force in this objection as under paragraph 18, ch. 64, Cahill’s Illinois Revised Stats. 1931, a next friend may prosecute any suit or proceeding without previous authority or appointment of the court, and while it is true that under our statutes the only person authorized to receive or take charge of the property or estate of a minor is the legal qualified guardian, and that no one hut the legal guardian of an infant has authority to receive payment and enter satisfaction of a judgment recovered in favor of such infant and that the duty of the next friend begins and ends with the prosecution of the suit unless by statute he is authorized to take further action after the termination of the suit (Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 387), nevertheless the fact that the decree did provide that the amount found due be paid to defendant in error, who is a minor, is no ground for reversing the decree, as the satisfaction of the decree is to be taken by the receiver or master and it will be the duty of the receiver or master to see to it that he receives a valid and binding release or satisfaction of the decree.

It is next contended by plaintiffs in error that the finding in the decree that the bonds, notes, mortgages, store and real estate purchased or held in the name of Mary Rachel were the property of Peter Rachel is not supported by the evidence and that the defendant in error has failed to prove the material allegations of his bill. It is not necessary that the allegations of the bill be proven by direct evidence; they may be proved by circumstantial evidence, that is by proof of such circumstances as give rise to a reasonable interference in the mind of the truth of the facts alleged and sought to be proved. “Fraud may be shown by facts and circumstances from which it may be inferred." (Treadwell v. McEwen, 123 Ill. 253, 256.) Agreements to perpetrate fraud are not made in the open — they are secret arrangements. As a result it frequently occurs that while fraud cannot be shown by direct evidence, yet it may be shown by proof of facts and circumstances from which the jury may rightfully infer the existence of the fraud charged. (Zwick v. Catavenis, 331 Ill. 240, 248.) Bearing in mind the principles thus announced, and after a careful examination of the evidence in the record, we are of the opinion that the master’s findings, approved by the court on the hearing, are fully supported by the evidence, and we would not be warranted in reversing the decree on the ground that the evidence does not support it. The master saw and heard the witnesses. A court of review should be slow in disturbing the conclusions of a master upon the facts unless it can be said that his conclusions are clearly contrary to the probative force of the evidence. (Union Colliery Co. v. Fishback, 299 Ill. 165; Gruenenfelder Lumber Co. v. Golden, 260 Ill. App. 313.)

It is also urged that the defendant in error had no right to complain of any conveyances of property made by Peter Rachel unless at the time of conveyance he was a creditor of Peter Rachel. While it is true that the owner of property may at any time give the same to anyone he chooses, so long as he thereby injures no then existing creditor, and no subsequent creditor can call it in question, unless the donor is guilty of an actual fraudulent intent, and such creditor is thereby injured (Bittinger v. Kasten, 111 Ill. 260; Chicago Daily News Co. v. Siegel, 212 Ill. 617), nevertheless under the evidence in the instant case, we are of the opinion this claim is not sustainable, as a conveyance by a debtor to another in trust for him, may be assailed by future as well as existing creditors. The same point was made in Jones v. King, 86 Ill. 225, and in disposing of the question, the court said (p. 229): “We understand the rule to be settled, that where the conveyance is colorable merely, and a secret trust and confidence exists for the benefit of the grantor, the conveyance will be held void both as against precedent and subsequent creditors.” In McKey v. Cochran, 262 Ill. 376, 384, it was said: “A conveyance of real estate by a debtor to another, tó be held wholly or in part in trust for him, is a fraud on creditors whether so intended or not, as it places beyond their reach a valuable right and gives to the debtor the beneficial enjoyment of what rightfully belongs to them. ... In such a case the conveyance is void as to existing and subsequent creditors.” (See also Bay v. Cook, 31 Ill. 336; Morrill v. Kilner, 113 Ill. 318; Gordon v. Reynolds, 114 Ill. 118, 127, and Highley v. American Exchange Bank, 185 Ill. 565.) After a careful examination of the record, we think the chancellor was fully justified in reaching the conclusion that the real estate conveyed to Mary Rachel and described in the decree, as well as the bonds, principal notes, interest notes and trust deeds securing them, purchased in the name of the plaintiffs in error, titles to which were taken in the maiden name of Mary Rachel, were merely colorable and that the beneficial interest and real ownership was in Peter Rachel.

It is next claimed that because the defendant in error called the plaintiffs in error as witnesses their testimony in their favor must be considered, and if there is no evidence to the contrary it must be taken as true. There can be no question such is the rule (Sawyer v. Moyer, 109 Ill. 461; Luthy & Co. v. Paradis, 299 Ill. 380), but by placing them on the stand, defendant in error was not barred from proving a state of facts differing from that sworn to by the plaintiffs in error (Podolski v. Stone, 186 Ill. 540; People v. Paul, 143 Ill. App. 566, 570, and cases cited), and from our examination of the record we are convinced he has done so.

It appears from the record that a temporary injunction was issued October 15, 1928, before the taking of the evidence before the master, restraining plaintiffs in error from opening any safety deposit box leased by them and from disposing of any of their assets, and as a condition precedent required defendant in error to enter into a bond of $500, and such a bond was approved, signed by defendant in error by his next friend, and the injunction issued. This temporary injunction was made permanent in the decree appealed from upon the filing of a bond for $1,000. The $1,000 bond has not been filed or approved. It is now argued that the decree should be reversed because the signing of the bond by defendant in error by his next friend was improper. There is no merit in this contention. The plaintiffs in error did not appeal from the order of October 15, 1928,. issuing the injunction, and they cannot now question that order.

It is finally contended that the decree must be reversed because Cecelija Rachel was not made a party defendant. The report of the master found that a certain bill of sale from Mary Rachel to Cecelija Rachel was. made for the purpose of defrauding defendant in error and for the purpose of preventing a levy and sale of the grocery store, and that Cecelija Rachel is holding the store as trustee for Peter Rachel. Ludwig Rachel, husband of Cecelija Rachel, was made a defendant and testified ■'before the master. Cecelija Rachel was not called as a witness and did not testify. Reither of the defendants filed an answer' in which they averred the omission of any necessary party. The objection of the nonjoinder of Cecelija Rachel as a party was first made here. When thus delayed such an objection will receive little favor from a reviewing court, and to be of avail in such case it must appear that the failure to make the omitted person a party will result in depriving that person of some material right. As she was not made a party defendant, there is no estoppel by the decree against her. Her rights, if any, are in no way jeopardized. (Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71, 85; Chicago, M. & N. R. Co. v. National Elevator & Dock Co., 153 Ill. 70; State Nat. Bank v. United States Life Ins. Co., 238 Ill. 148; Law v. Neola Elevator Co., 281 Ill. 143.)

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

Affirmed.

S caul aw and Gridley, JJ., concur.


author: Mr. Presiding Justice Keener

text:
    Herman J. Jacob, Appellant, v. R. S. Mundell, Appellee.
    Gen. No. 35,750.

      Opinion filed June 28, 1932.
    Perley H. Bishop, for appellant.
    Henry H. Schultz, for appellee.
   Mr. Presiding Justice Keener

delivered the opinion of the court.

Plaintiff sued defendant for rent for the months of January, February, March and April, 1931, at $285 a month, amounting to $1,140. The cause was tried without a jury, resulting in a finding for the defendant and a judgment for costs against the plaintiff, and plaintiff appealed.

The undisputed facts are that plaintiff and one Julius Torgatsch entered into a written lease for a term of five years, expiring September 30, 1927, the rental for the last two years being $285 a month. February 24,1926, Julius Torgatsch, with the written consent of plaintiff, assigned the lease to defendant, and stipulated that there should be no further assignment without his written consent. March 19, 1926, Chatham Furniture Company, a corporation, was organized, and plaintiff became a stockholder and its secretary, and this corporation entered into and took possession and remained in possession of the demised premises until December 31, 1930, paying the rent by checks countersigned by plaintiff as secretary of the corporation. When the lease expired September 30, 1927, the premises were not surrendered to the plaintiff, but the Chatham Furniture Company continued to occupy them until December 31,1930.

It is plaintiff’s contention that the Chatham Furniture Company never became his tenant. On the other hand, defendant claims that when the Chatham Furniture Company entered the premises with the knowledge and consent of the plaintiff, it became his tenant.

In arguing for a reversal counsel for plaintiff states that there is not a scintilla of evidence in the record that the plaintiff and the defendant ever said a word to each other about the occupation of the premises by the Chatham Furniture Company and that the payment of the rent by the Chatham Furniture Company did not operate as a substitute of that corporation as a tenant of the plaintiff. While it is true that payment of rent by a person other than the lessee, even though such person is in possession of the demised premises, does not make such person a tenant of the lessor, nevertheless, where it is mutually agreed between parties that a lease shall be surrendered, this will estop the landlord thereafter from denying the surrender of the lease, notwithstanding it was in writing and under seal, and the agreement to surrender was not in writing. (Dills v. Stobie, 81 Ill. 202, 205.) The surrender need not be in express words. (Fry v. Patridge, 73 Ill. 51.) The parties to a lease, without any express surrender, may do some act which implies that they have both agreed to the surrender. (Brewer v. National Union Bldg. Ass’n, 166 Ill. 221.) Surrender of a lease may be implied from circumstances and the acts of the parties. (Taylor on Landlord and Tenant, vol. 2, sec. 515; Fry v. Patridge, supra; Dills v. Stobie, supra; Halloran v. Hall, 165 Ill. App. 440; Thompson v. Western Casket Co., 219 Ill. App. 184.)

It was not necessary that defendant prove the surrender by express words. That fact may be proved by circumstantial evidence; nor was it necessary that the defendant formally vacate the premises and permit the Chatham Furniture Company to re-enter under a new lease to make it the tenant of the plaintiff in place of the defendant. It is sufficient if all the parties agreed that the Chatham Furniture Company should become the tenant of the plaintiff; that it thereafter occupied the premises and was acknowledged by the plaintiff to be his tenant. (Dills v. Stobie, 81 Ill. 202, 206.) In the instant case the defendant prior to February 24, 1926, was employed by Torgatsch, the original lessee, who conducted a furniture business on the premises; his health being impaired, he assigned the lease and the business to defendant and he in turn, with the assistance of plaintiff, formed the Chatham Furniture Company, a corporation, whose business was to be conducted in the premises in question, and immediately after the corporation was organized this corporation paid all the rent thereafter accruing with checks countersigned by the plaintiff as secretary. It was upon these facts that the trial court found that there was a surrender of the lease. This was a question of fact entirely within the province of the court, and in this finding we concur. The judgment is affirmed.

Affirmed.

Scanlan and Gridley, JJ., concur.


text:
    Helen K. Fleming, Appellant, v. Matthew J. Gannon et al., Appellees.
    Gen. No. 35,768.

      Opinion filed June 28, 1932.
    Joseph G. Sheldon, for appellant.
    No appearance for appellees.
   Mr. Presiding Justice Kerner

delivered the opinion of the court.

This is an action brought by plaintiff, Helen K. Fleming, against the defendants, Matthew J. Gannon, Della M. Gannon and Bessie Gannon, to recover $6,305.75 and interest on certain real estate bonds executed by the defendants. Tried before the court without a, jury. Finding and judgment in favor of defendants, from which the plaintiff appealed. We are not favored with the aid or assistance of a brief on behalf of the defendants.

The undisputed facts are that the bonds sued upon were a part of a $50,000 bond issue evidenced by 110 bonds, payable .to bearer, executed by the defendants, the payment of which was secured by their trust deed to Cosmopolitan State Bank, as trustee, conveying certain real estate, in which trust deed the grantors (defendants) agreed that if the time of payment of said bonds be extended by the holder thereof for any time, they (the grantors) shall be held thereby to consent to such extension and shall notwithstanding such extension continue liable thereon to the holder thereof, and shall pay the same at the time mentioned in such extension agreement. On the face of each bond appears the following: ‘ ‘ The liability of the undersigned hereon shall, under all circumstances whatsoever, continue in its original form until the principal and interest are paid in full.” September 23, 1925, the defendants by their warranty deed conveyed all their title in said real estate to Bade Vojvodich and Stefanie Vojvodich, subject to the trust deed securing said bond issue of $50,000 pursuant to a contract between the defendants and said Bade and Stefanie Vojvodich in which it is recited that the defendants agree to convey said real estate to Bade and Stefanie Vojvodich for the consideration of $88,000 subject to the trust deed for $50,000, which said Bade and Stefanie Vojvodich agree to assume and pay when due. April 15, 1929, bonds numbered 36 to 60 matured and the then holders of the bonds presented them for payment at the Cosmopolitan State Bank and received the money (principal and interest) due thereon, but the Cosmopolitan State Bank did not cancel or mark said¡bonds “paid”; thereafter between March 5, 1929, and November 22, 1929, without notice to or consent of the defendants, the Cosmopolitan State Bank sold these bonds and interest coupons to the Capital Trust Company, a corporation, and that company agreed in writing to subordinate the lien of the indebtedness evidenced by said interest coupons and bonds to the lien of bonds numbered 61 to 110, both inclusive; thereafter the Capital Trust Company delivered said bonds and interest coupons to the Calumet National Bank, a corporation. The Calumet National Bank sold these bonds and interest coupons on December 31, 1930, and possession was delivered to plaintiff, the purchase price therefor being paid by one Otto C. Jarmuth, who was then the legal owner of the real estate.

In the trial court it was the contention of the defendants, and the court held that by reason of the fact that Bade arid Stefanie Vojvodich assumed and agreed to pay the bonds and interest coupons sued on, their promise created a principal obligation, and that the defendants as maker of the bonds thereafter sustained the relation of surety only, and that the subsequent agreement between the Capital Trust Company and the Cosmopolitan State Bank subordinating the lien of the bonds and interest coupons without the knowledge and consent of the defendants, released the defendants from all personal liability thereon. We are of the opinion the trial court was in error in so holding. The defendants were the makers of the bonds, and as such engaged that they would pay the bonds according to their tenor. (Par. 214, sec. 191, ch. 98, Cahill’s Illinois Revised Stats. 1931, Negotiable Instruments Act.) By par. 140, sec. 118 of the Negotiable Instruments Act, “A negotiable instrument is discharged: 1. By payment in due course by or on behalf of the principal debtor. 2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation. 3. By the intentional cancellation thereof by the holder. 4. When the principal debtor becomes the holder of the instrument at or after maturity in his own right.” By par. 141, sec. 119, of the same act, “A person secondarily liable on the instrument is discharged: 1. By an Act which discharges the instrument. 2. By the intentional cancellation of Ms signature by the holder. 3. By a valid tender of payment made by a prior party. 4. By a release of the principal debtor, unless the holder’s right of recourse against the party secondarily liable is expressly reserved, or unless the principal debtor be an accommodating party. 5. By an agreement in favor of the principal debtor binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent prior or subsequent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved, or unless the principal debtor be an accommodating party. ’ ’

It is clear the act specifies how the persons primarily liable may be discharged, and the several ways in which persons secondarily liable may be discharged. Subordinating the lien of the indebtedness evidenced by the bonds and interest coupons sued on in the instant case without the knowledge and consent of the defendants, even if it be conceded that the defendants are secondarily liable, is not among them. There was nothing done with the bonds and interest coupons after they had been subordinated which caused the defendants to be released from the payment thereof. The bonds and coupons were never discharged; the signatures of the makers were not canceled by the holders of the bonds; no valid tender of payment has been made; the principal debtors have never been released and there was no agreement binding upon the holder to extend the time of payment or to postpone the owner’s rights to enforce the payment of the bonds, with or without the consent of the defendants. There was no extension granted of the time of payment, and even if there had been, the defendants would not have been released from liability in view of the language of the bond and trust deed. (Schrader v. Heflebower, 243 Ill. App. 139.)

It was also contended by the defendants that plaintiff could not recover because she had paid nothing for the bonds and interest coupons, they having been purchased and paid for by Otto C. Jarmuth. There is no merit in this contention. The evidence discloses that the plaintiff is the legal holder of the bonds. Her possession of the bonds and coupons is prima facie evidence of that fact. (Ewen v. Templeton, 148 Ill. App. 46; Hoff v. Dougherty, 243 Ill. App. 159, 160, and cases cited.)

It is also contended by defendants that by the acquisition of the bonds and coupons in the ownership of the property by the Capital Trust Company the bonds were discharged; in other words, that there was a merger. This contention was not sustainable on the record for several reasons. There is no evidence that the Capital Trust Company ever acquired the title to the real estate and the testimony shows clearly an intention on the part of everyone who handled the bonds to retain them in their uncanceled condition, and to keep intact the liability of the makers. The question of merger of interest is always a question of intention. (Security Title & Trust Co. v. Schlender, 190 Ill. 609, 613; Clark v. Glos, 180 Ill. 556, 565; Central Trust Co. v. Calumet Co., 260 Ill. App. 410, 423.)

After a careful examination of the entire record we have reached the conclusion that justice will be best served by a retrial of the case. The judgment of the municipal court is reversed and the cause remanded.

Reversed and remanded.

Soanlan and Gridley, JJ., concur.


text:
    Frieda Schatzkis, Appellant, v. Rosenwald & Weil, Appellee.
    Gen. No. 35,807.

      Opinion filed June 28, 1932.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Presiding Justice Keener

delivered the opinion of the court.

Plaintiff, Frieda Schatzkis, brought an action in assumpsit to recover upon a bond executed by defendant. The case was tried by the court without a jury, resulting in a finding for the defendant and a judgment against the plaintiff for costs, and plaintiff appealed.

The amended statement of claim alleged that plaintiff was the legal owner of bond No. 1505 for $1,000, executed by the defendant, the bond being part of a series of 1,800 bonds aggregating $850,000; that default was made in the payment of the semiannual interest maturing January 15, 1931, by reason whereof and pursuant to the provisions contained in the trust deed securing said bond the required number of bond owners have made a demand to declare the whole amount due and payable, and there was due plaintiff $1,030.

The affidavit of merits admitted that default had been made in the payment of interest which matured January 15, 1931, and alleged that the principal of said bond was not due by its terms until January 15, 1935, because the required number of bondholders have not made a demand to declare the whole amount due and payable.

The undisputed facts are that the bond sued on is secured by'a trust deed to G-reenebaum & Sons Bank & Trust Co., a corporation, as trustee; that by the bond the defendant agreed to pay to the bearer of the bond $1,000 on January 15,1935, together with interest from January 15, 1923. The only language in the bond by which the payment of the principal might be accelerated, was that “on default in the payment of interest the principal of the bond may become and be due and payable before its maturity as provided in the Trust Deed.” By the trust deed the defendant agreed that in case default was made in the payment of interest when due and payable, and such default continue for 30 days after such interest becomes due, then at the election of the legal holders of said bonds aggregating at least two per cent of the principal sum evidenced by all the bonds then outstanding and unpaid, the principal sum evidenced by all the bonds then outstanding and unpaid should thereupon at once become due and payable, and for the purpose of so declaring at once due and payable the bonds unpaid, the trustee was appointed the agent and attorney in fact of each and all of the holders of said unpaid bonds. It also appears that a bill to foreclose the trust deed was filed by the trustee in the circuit court of Cook county on February 19, 1931, to foreclose the whole bond issue and at the date of the trial of the instant case was still pending.

The only defense to plaintiff’s cause of action was the question whether the bond was due by the acceleration under the provisions of the trust deed. For the purpose of showing the acceleration of the bond issue in compliance with the trust deed, plaintiff offered in evidence a demand dated February 16, 1931, made by the owners of more than two per cent of the outstanding bonds. This demand was addressed to the trustee, and recited that the Bondholders’ Protective Committee as owners and holders of bonds executed by the defendant, secured by the trust deed in question (specifying the number, amount, and the maturity of the bonds, aggregating $21,500), by reason of the default of the defendant in failing to pay the interest due and payable January 15, 1931, and the continuance of such default for more than 30 days, declared immediately due and payable all of the bonds described in and secured by the terms and provisions of said trust deed, and requested the trustee to likewise declare immediately due and payable all of the outstanding bonds by reason of such default. This demand was signed by Abel Davis, M. E. Grreenebaum and Eugene V. B. Thayer, designated “as the Bondholders’ Protective Committee for bonds issued under and secured by the above-mentioned Trust Deed. ’ ’ Attached to the demand was the statement by the trustee that pursuant to such request the trustee did declare immediately due and payable all of said bonds. Defendant’s counsel objected to the introduction of this demand on the ground that there was no proof that the owners of the bonds enumerated in the demand authorized the committee to make the demand. The court sustained the objection. Thereupon the plaintiff offered in evidence a bondholders’ agreement tending to show the creation of a Bondholders’ Protective Committee, consisting of Abel Davis, Murray Wolbach, Eugene V. R. Thayer, B. M. Winston, M. E. Greenebaum, John P. Oleson and Howard A. Loeb, which recites that in order to take concerted action on behalf of the bond owners of the Greenebaum issues the bonds be deposited with the Chicago Title & Trust Company as depositary, subject to the sole control and order of the committee; that the depositors assigned and transferred to the committee full legal and equitable title to the bonds deposited and vested the committee with every right and power of the respective owners of the bonds deposited, including the right to elect to have the principal of the bonds declared due and payable forthwith. Defendant’s counsel objected to the receipt of the agreement, stating it had nothing to do with the defendant, and the court sustained the objection.

It is undisputed that the bonds described in the demand had been deposited with and were in the possession of the Chicago Title & Trust Company as depositary for the Bondholders’ Protective Committee. Possession of the bonds was prima facie evidence of ownership. (Hoff v. Dougherty, 243 Ill. App. 159, and cases cited.) On this state of the record the question is whether the offered proofs tended to support the cause of action. We believe they did and that the court erred in sustaining the objection.

It is, however, argued by defendant’s counsel that even if plaintiff had proved that the acceleration provisions of the trust deed had been complied with, she would not have been entitled to recover because the provisions of the trust deed providing for the acceleration of the maturity of the bonds were solely for the purpose of foreclosure and did not grant to individual bondholders the right to maintain an action at law thereon. The bond was the principal debt and the mortgage only incidental security.

By the terms of the bond the defendant absolutely and unconditionally promised to pay bearer the principal of said bond on January 15, 1935, with interest from January 15; 1923, the interest to be paid semiannually, and agreed that on default in the payment of the interest the principal shall become due and payable before its maturity, as provided in the trust deed. The trust deed contained the agreement above quoted. Such an agreement is valid. (Curran v. Houston, 201 Ill. 442; Meyer v. Levy, 249 Ill. App. 408.) But our attention is called to Article III, section 1, of the trust deed which provides that no holder of any bond shall have the right to institute any proceeding in law or in equity, of whatever character or kind, for the foreclosure of the trust deed or for the execution of the trust therein provided, or for the appointment of a receiver, or for any other remedy under said trust deed, or for enforcing the lien thereby created, without first having made application to the trustee and until 60 days after the giving of notice in writing to the trustee, and the failure of the trustee to institute proceedings for the foreclosure of the trust deed. In Fleming v. Fairmont & M. R. Co., 72 W. Va. 835, 79 S. E. 826, wherein it was claimed the mortgage prohibited a bondholder from suing at law, it was said (p. 827): “To have this effect, the restriction must be clear and reasonably free from doubt. ‘The common-law right to sue upon a bond is not affected by the remedies provided in the mortgage given simultaneously and for the better securing of the bond unless the provisions of the mortgage exclude this right in express terms or by necessary implication.’ For ‘the right to sue upon a written obligation admitted to be valid is of too high a character to be taken away by implication, especially if drawn from an instrument other than that which is given in direct and positive acknowledgment of the debt.’” Romberg v. Interstate Independent Telephone & Telegraph Co., 200 Ill. App. 509, was an action in assumpsit by a holder of interest coupons secured by a trust deed which provided: “That no holder or holders of any of said bonds or coupons shall have the right to institute any proceedings of whatever character or kind for the foreclosure of this indenture, or the execution of the trusts hereof,' or for the appointment of a receiver, or for any other remedy under this trust deed, without first giving notice in writing to the said trustee,” etc. It further provided: “ ‘That neither the said trustee nor the holder or holders of any of said bonds, or any of the said interest coupons intended to be hereby secured, shall institute any suit, action or proceeding for the foreclosure thereof, or for the appointment of a receiver otherwise than upon the terms and conditions and in the manner herein provided. ’ ” And the court held the trust did not take away the right of action at law on the bonds involved in that case.

After a consideration of the authorities, we are of the opinion that under the facts in the instant case the purpose of the restriction contained in Article III, section 1 of the trust deed was to restrict individual action only in the institution of foreclosure proceedings and not in the commencement of an action to recover upon the personal obligation of the defendant, and that plaintiff had the right to sue the mortgagor in assumpsit for a judgment upon the personal obligation. (Edgington v. Hefner, 81 Ill. 341; Rohrer v. Deatherage, 336 Ill. 450, and Brewer v. Penn Mut. Life Ins. Co., 94 Fed. 347.)

Before the commencement of the trial plaintiff moved to increase the ad damnum to $5,000, and to amend the statement of claim to include certain other bonds, all a part of the same series of 1,800 bonds secured and described by the same trust deed. The trial court denied the motion. The record does not disclose that defendant’s counsel claimed to be surprised, or that he would be prejudiced by the allowanee of the motion, or that he asked that the trial of the cause be continued. The amending of the statement of claim would not have substituted a different cause of action. It was the same cause, but instead of suing on one bond, additional bonds were sought to be included to avoid separate suits. Under our statute, chapter 7, Cahill’s Ill. Rev. Stats. 1931 (Amendments and Jeofails), it is hardly ever too late to amend pleadings, whether before or after verdict on such terms as justice may seem to demand. The trial court should have granted the motion. (Tomlinson v. Earnshaw, 112 Ill. 311; Thompson v. Sornberger, 78 Ill. 353; Goldstein v. Chicago City Ry. Co., 286 Ill. 297; Delfosse v. Kendall, 283 Ill. 301.)

For the reasons indicated the judgment of the municipal court must be reversed and the cause remanded.

Reversed and remanded.

Scanlan and Gridley, JJ., concur.