author: Mr. Presiding Justice Gredley

text:
    Alexander Hendry Company, Appellee, v. Harry L. Mooar et al., Defendants, on Appeal of S. M. Hunter, Appellant.
    Gen. No. 31,048.
    1. Mechanics’ liens — work in nature of repairs as extending time for filing claim. Under Cahill’s St. ch. 83, K 7, requiring that claim for mechanic’s lien be filed in four months from completion of work, trivial work in the nature of repairs, done later, cannot extend the time of such filing.
    2. Mechanics’ liens — right to lien where work done at request of former owner, Work done by mechanic at request of former owner does not entitle him to lien against the property in the hands of new owners.
    3. Appeal and erbob — affirmance of part of severable decree on appeal from other part. Under Cahill’s St. ch. 109, U107, permitting defendants to assign cross-errors, if they fail to appeal from one part of a severable decree, they cannot assign errors as to that part, and it stands affirmed.
    Appeal by defendant intervener from the Circuit Court of Cook county; the Hon. Huso M. Friend, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 21, 1926.
    Rehearing denied January 4, 1927.
    James P. Harrold, for S. M. Hunter, appellant.
    Joseph F. Grossman, for Alexander Hendry Company, appellee. Jacob G. Grossberg and Decker & Golden, for Morris Fink and Minnie Fink, defendants.
   Mr. Presiding Justice Gredley

delivered the opinion of the court.

In a mechanic’s lien proceeding, commenced October 4, 1923, the master in his. report, filed May 11, 1925, recommended the allowance of two original contractors’ liens upon the premises, one in favor of Alexander Hendry. Company, complainant, for the sum of $270, with interest from February 5, 1923, and the other in favor of S. M. Hunter, defendant and intervening petitioner, for the sum of $397.30, with interest from May 24, 1923. Objections to the report, filed by Morris and Minnie Fink, defendants to complainant’s bill and to Hunter’s intervening petition, were ordered to stand as exceptions before the court. The Finks had become the owners of the premises by purchase subsequent to the making of the separate contracts for materials and labor furnished by said contractors. On October 30, 1925, after a hearing upon the exceptions, the court confirmed the master’s report as to the claim of Hendry Company, and decreed that, unless the Finks paid the amount of its claim, the premises be sold, etc., but the court disallowed the claim of Hunter and decreed that his intervening petition be dismissed, and further decreed that the costs be taxed one-third against the Finks, one-third against Hunter and one-third against another unsuccessful intervening petitioner, whose claim is not now involved. From the decree Hunter prayed and perfected within apt time the present separate appeal.

It appears from the decree that the Finks also prayed a separate appeal, which was allowed, conditioned upon their filing a bond within 30 days, but it does not appear that they perfected their appeal or made any attempt to do so. After the transcript on Hunter’s appeal had been filed, the Finks, by their attorneys, presented a motion, supported by affidavit and showing that notice of the motion had been served on Hunter’s attorneys (but not on the Hendry Company), asking that they be permitted to file a supplemental transcript of the record, “and also to assign cross-errors herein.” This court allowed the supplemental transcript to be filed. It merely shows that on May 11,1925, the circuit court had ordered that all objections filed to the master’s report stand as exceptions. This Appellate Court also allowed the other portion of the motion, viz, that the Finks might “assign cross-errors herein,” which thereafter were assigned. Upon reviewing them it appears that they relate solely to alleged errors of the circuit court (a) in decreeing that the Hendry Company has a mechanic’s lien upon the premises for $270 and interest, and ordering the Finks to pay the amount or, in default thereof, that the premises be sold, etc., and (b) in taxing any part of the costs against the Finks.

From stipulations and oral and documentary evidence introduced before the master, it appears that prior to January 24,1923, one Stella Hazzard was the owner in fee of the premises, improved with an apartment building; that Harry L. Mooar had been her duly authorized agent to enter into contracts for her with mechanics or material men for the improvement of the premises and to direct all work; that on said date, Miss Hazzard entered into a contract, recorded February 8,1923, with Esther M. Johnson and Burt Johnson, her husband, for the sale of the premises to them, and that they took possession on February 1, 1923, and thereafter collected the rents; that on February 14, Miss Hazzard conveyed the premises by warranty deed, duly recorded, to David L. Golden, and also assigned all of her right, title and interest in the Johnson contract to him; that on February 23, Golden and wife conveyed the premises by warranty deed, duly recorded, to the Finks, and also assigned their interest in the Johnson contract to them; that the contract interest in the premises, which the Johnsons had acquired, was transferred by them to Mrs. Beulah Fritz about March 20, and she took possession; and that afterwards, about May 8, 1923, she transferred said contract interest to Mrs. H. J. Anderson and husband, and they at once took possession and were living on the premises at the time of a hearing before the master in October, 1924.

As to the lien of appellant, Hunter, it appears that he was in the business of doing carpentry work and contracting; that about the last day of September, 1922, he entered into a verbal contract with Mooar (acting for Miss Hazzard) to furnish certain materials and do certain carpentry labor on the apartment building, according to a certain plan then shown him and instructions to be given from time to time by Mooar; that the work was substantially completed about December 1, 1922, and was of the value of $697.80; and that he was paid on account the total sum of $300.50, made in three instalments in October, 1922, and in February and March, 1923, leaving a balance unpaid of $397.30. He did not file as an original contractor his statement of claim for lien with the clerk of the circuit court, in accordance with section 7 of the Mechanics’ Liens Act [Cahill’s St. ch. 82, [[7], until August 8, 1923, which is more than four-months after the substantial completion of his contract, and he did not file his intervening petition in the cause until November 3, 1923. It was contended in the trial court by the Finks that, as against them as purchasers of the premises, Hunter had lost his lien, if any he had, because of said statement of claim for lien not having been fifed in time. Hunter testified on direct examination that his last work on the premises was done on May 24, 1923, at Mooar’s request. On cross-examination he testified that he did no work after December 1, 1922, except that on May 24, 1923, “We adjusted the door and fixed the lock” —one hour’s time — at the front entrance, which door and lock “had been put on in October or November, 1922.” Mooar testified that he “didn’t have charge of the building after February 1, 1923,” on which day the Johnsons took possession, and he (Mooar) went with them and notified the tenants that they (the John-sons) would thereafter be in possession and would collect the rents. And Mrs. H. J. Anderson testified: “From May 8, 1923, when I took possession, to the present time (October, 1924) there has been no work done in the repairing of the building of any nature or description by anybody. * * * I manage the building, collect the rents, hire the janitor, and order everything done. * * * There has been no carpenter work done by anybody since that time.”

In view of the evidence we think that the court was fully warranted in disallowing Hunter’s claimed lien, as against the Finks, subsequent purchasers, and in dismissing his intervening petition. Even if it be considered that Hunter, by one of his employees, actually did the claimed adjusting work on May 24, 1923, we regard it as an unwarranted attempt to revive a lien which had been lost by failure to comply in time with the provisions of section 7 of the Lien Act [Cahill’s St. ch. 83, ft 7]. Hunter’s verbal contract with Mooar had been substantially completed in November, 1922, and he did not file within four months from that time any statement of claim for lien, in compliance with said section of the Lien Act. And it does not appear that Mooar ordered this particular adjusting work done as extra or additional work on the original contract, and the work, if done, was of a trivial and inconsequential character, and rather in the nature of new and separate repair work, and we do not think it can properly be “tacked on” as a part of the original contract made with Mooar. (Stone v. Juvinall, 125 Ill. App. 562, 564; Schaller-Hoerr Co. v. Gentile, 153 Ill. App. 458, 461; Davis v. Alvord, 94 U. S. 545, 548; Badger Lumber Co. v. Parker, 85 Kan. 134, 137; Cahoon v. Fortune Min. & Mill. Co., 26 Utah 86, 72 Pac. 437, 440; 35 L. R. A. [N. S.] 904 note, and cases there cited.) Furthermore, even if Mooar, about May 24, 1923, requested Hunter to do said adjusting work, as Hunter testified he did, such request would not be binding on the then owners of the premises, the Finks. Mooar’s authority to make contracts for the improvement of the premises came solely from Miss Hazzard while she was the owner, and when she parted with the possession, and title to the premises Mooar’s authority ceased.

As to the question whether the circuit court erred in decreeing a lien in favor of complainant, Hendry Company, for $270 and interest, and that in default of payment thereof by the Finks the premises be sold, etc., we do not think that the Finks are in a position to raise the question on this appeal. They did not perfect a separate appeal from that part of the decree which awarded the Hendry Company a lien, etc., upon the premises. (Glos v. Woodard, 202 Ill. 480, 482.) And, the decree being a severable one, the Finks could not properly assign cross-errors, on the separate appeal of Hunter, as to the action of the court in awarding a lien in favor of the Hendry Company. (Oliver v. Wilhite, 201 Ill. 552, 564; Chicago & M. Elec. R. Co. v. Chicago & N. W. R. Co., 211 Ill. 352, 359; Walker v. Montgomery, 236 Ill. 244, 248; Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill. 106, 125.) In the Oliver case it is said (p. 564): “Section 78 (now 107) of the Practice Act [Cahill’s St. ch. 109, ][ 107] gives the right to appellees or defendants in error, in all cases of appeal or writ of error, to assign cross-errors, and makes it the duty of this and the Appellate Courts to dispose of the same as in other cases of assignment of error. When, however, a decree in chancery is severable, — that is, composed of distinct parts having no bearing upon each other,— each part may be treated as a distinct decree and an appeal taken from one part without affecting the others. (Walker v. Pritchard, 121 Ill. 221; Union Trust Co. v. Trumbull, 137 id. 146; Moore v. Williams, 132 id. 591.) And when an appeal from one part of a severable decree is taken, cross-errors cannot be assigned as to parts not appealed from. Walker v. Pritchard, supra.It seems clear to us that that part of the decree in question, disallowing the claimed lien of Hunter and dismissing his intervening petition, is distinct from that part decreeing a lien in favor of complainant, Hendry Company, and that these two parts have “no bearing upon each other.” In the cited case of Walker v. Pritchard, supra, it is said (p. 227): “The theory of the decision in Cheney et al. v. Teese et al., 113 Ill. 444, is, that where different parts of a decree relate to matters wholly independent of each other, so that the decision as to one part has no influence or bearing upon the decision as to the other part, they are severable, and, in effect, distinct decrees, and an appeal may, consequently, be made from either part without affecting the record as to the other part. When such an appeal is taken, manifestly the question of jurisdiction must be determined by the question affected by the decree, as was there held, and it would inevitably follow that cross-errors could not be assigned as to the part of the decree not brought before'the court by the appeal.” In Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., supra, the complainant filed a bill in the superior court to restrain the defendant corporation, and certain individual defendants, from doing certain acts of claimed unfair competition in connection with the manufacture and sale of skates, and for an accounting. The trial court dismissed the bill as to the individual defendants, but entered a decree restraining the corporation from doing certain acts and also awarded an accounting against it. On the appeal of the corporation to this Appellate Court the decree was reversed and the cause remanded with directions to dismiss the bill for want of equity. (229 Ill. App. 549, 564.) On that appeal the complainant had assigned cross-errors on the dismissal of said individual defendants. The case was appealed by the complainant to the Supreme Court, where the judgment of this Appellate Court and the decree of the superior court were reversed and the cause remanded to the superior court with directions. (313. Ill. 106, 126.) In the course of its opinion the Supreme Court said (p. 125): “The appellant insists that the decree of the circuit (superior) court dismissing the bill as to the individual defendants should be reversed. It assigned cross-errors on this part of the decree in the Appellate Court, but the Appellate Court had no jurisdiction of the individual defendants in the circuit court. There was no joint decree in the circuit court. The relief granted was against the corporation alone. Its appeal did not bring the individual defendants before the Appellate Court. If the complainant was dissatisfied with the decree dismissing its bill against the individual defendants it might have appealed, but the appeal of the corporation brought up nothing but the decree against it and did not authorize the assignment of cross-errors against the decree in favor of the other defendants.” In the present case, one part of the decree disallowed the claimed lien of Hunter and dismissed his intervening petition; another part allowed the claimed lien of the complainant, Hendry Company, and directed a sale of the premises in case the Finks failed to pay the amount awarded. Hunter appealed from the decree wherein his intervening petition was dismissed, and, in our opinion, in' view of the authorities, his appeal “brought up nothing but the decree-against him,” and, inasmuch as the Finks did not appeal from the decree as they might have done, the Hunter appeal did not authorize the assignment of cross-errors by the Finks as to that part of the decree' allowing complainant’s lien. And we think that the order of the circuit court as to the taxing of the costs, as above mentioned, was proper.

For the reasons indicated the decree of the circuit court, entered October 30, 1925, is affirmed.

Affirmed.

Fitch and Barnes, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Margaret Gibbons, Appellee, v. Balaban & Katz Corporation, Appellant.
    Gen. No. 31,107.
    1. Exhibitions and shows — sufficiency of evidence to show fall of motion picture house patron due to uneven carpeting of aisles. Evidence in an action for injury to a patron of a motion picture house sustained in a fall while leaving the place during a performance held not to show that such fall was due to uneven carpeting of the aisles.
    2. Exhibitions and shows — duty of motion picture house proprietor as to lighting aisles and stairways. It is the duty of the proprietor of a motion picture house to exercise reasonable care to light the aisles and stairways so that patrons may safely enter and leave the house while the performance is in progress.
    3. Exhibitions and shows — sufficiency of lighting of motion picture house stairway is jury question. Under the conflicting evidence of this case, it was a question for the jury whether a motion picture stairway was sufficiently lighted and whether the picture company was negligent in its lighting of the stairway at the time of plaintiff’s fall thereon.
    4. Exhibitions and shows — contributory negligence of motion picture house patron in leaving while aisles were dark as jury question. Under the evidence of the case, it was a jury question whether plaintiff was guilty of such contributory negligence in leaving a motion picture house while the aisles and stairways were dark and a picture was in progress as to bar all recovery.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Timothy D. Hubley, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 21, 1926.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter and Kenneth B. Hawkins, of counsel.
    Dunne & Corboy, for appellee; E. F. Dunne and Robert Jerom:e Dunne, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Plaintiff recovered a judgment for $1,500, against defendant, following the verdict of a jury, in an action for damages for personal injuries sustained by her on the evening of May 11, 1924, at the Tivoli Theatre, a motion picture theatre, operated and controlled by defendant at No. 6325 Cottage Drove Avenue, Chicago.

Earlier in the evening plaintiff had purchased tickets of admission for herself and her minor daughter, and they, entering the theatre during the first exhibition that evening of the feature picture, were guided to seats in the balcony, alongside one of the middle aisles, by an usher who carried a flashlight. During the progress of the second exhibition they decided to leave, and arising from their seats while the theatre was in its usual darkened condition when pictures were being shown upon the screen, stepped into the aisle and walked a few steps to a stairway at one end of it. While slowly descending the stairs and “feeling” her way along, plaintiff, being ahead of her daughter, slipped or stumbled and fell to the foot of the stairs, breaking her left leg. At the foot of the stairs there was a cross-aisle, and from it there was a “tunnel” exit, just alongside the stairs and running in the opposite direction. She was taken to a hospital and treated, and did not resume her accustomed work for about four months. She incurred a physician’s bill of $350, which the evidence showed was a reasonable charge for the services, and expended $870.50 for nurses, hospital bills, etc.

Plaintiff’s declaration consisted of six counts, to which the general issue was pleaded. One of the counts, charging defendant’s negligent failure to obtain a license from the city of Chicago to operate the theatre, was withdrawn by plaintiff during the trial. Of the remaining counts one charged that defendant “negligently furnished one of the steps” of the stairway in the balcony “with uneven carpeting.” Another charged that defendant, in violation of its duty to patrons of the theatre, “negligently failed to provide reasonably adequate lighting facilities or sufficient light” on the steps of the stairway. Other counts in varying language charged defendant with negligence in both of these particulars. The sixth count, after setting out verbatim certain ordinances of the city of Chicago concerning places of amusement including motion picture theatres, charged that defendant “negligently and improperly failed to furnish the lights as required by said ordinances.” Two of said ordinances (introduced in evidence) are as follows:

“Steps shall not be permitted in aisles except as extending’ from bank to bank of seats, and no riser shall be more than eight inches in height, and no tread shall be less than ten inches in width, and wherever the rise from bank to bank of seats is less than five inches, the floor of the aisle shall be made as an inclined plane, and where steps are placed in outside aisles or corridors they shall not be isolated but shall be grouped together, and a light shall be installed so that every place where there are steps in such aisles or corridors shall be clearly lighted.”
“Where provisions are made for the lighting of steps which occur in the aisles or corridors, a light must be kept burning during the entire time that the audience is in the building and must be maintained in such a manner as to properly illuminate such steps.”

On the trial plaintiff was a witness in her own behalf, and, among other witnesses, she called her daughter, aged 13 years, J. W. Swanson, who was descending the stairway at the time of plaintiff’s fall, and J. Gr. Terry, who was then occupying a seat at the foot and to the left of the stairway. For defendant four of its employees testified. It appears from uncontradicted testimony that the stairway was constructed of concrete and had eight or more steps; that the risers thereof were 7% inches in height and the treads 18 inches in width; that the rise from bank to bank of seats was more than five inches; that' at the juncture of each riser and tread a beveled strip of wood was firmly imbedded in the concrete; that upon the stairway a mat was laid, and upon the mat a carpet, stretched and held in place by nails driven into the strips of wood; that there were no defects in the construction of the stairway; and that, at the time of plaintiff’s fall, the carpeting had not become loose, torn or worn.

As to the charge in the declaration of “uneven carpeting,” causing plaintiff’s fall, there was little or no evidence. Plaintiff testified: “I started down the stairs, and there wasn’t any light. I couldn’t see, so I felt my way the best I could. * * * When I got a few steps down something caught my heel, and I fell. * * * I had gone down three or four steps of the stairs. * * * I slipped with my right foot and in slipping I went clear down "one step, and then my heel caught and threw me down, and I fell forward.” Terry was the only witness for her who gave any testimony as to the condition of the carpet. He testified that shortly after the accident he made an examination of the lower three or four steps of the stairway and of the carpet thereon; that he did not find any holes or anything in the carpet; that right at the edge of the step the carpet felt “very roimd-”; and that he did not reach any conclusion from his examination as to why plaintiff fell. It does not appear that any of the steps which he examined was the one upon which plaintiff slipped or stumbled. And three of defendant’s witnesses testified to making examinations of the steps and carpeting shortly after the accident, and that then the carpeting was in good condition and stretched taut and smooth over the entire stairway. In our opinion, the evidence did not tend to show that plaintiff’s fall was occasioned by “uneven carpeting,” as charged.

As to the issue raised by other' counts of the declaration, whether the stairway and steps were sufficiently lighted at the time of plaintiff’s fall, the evidence was conflicting. Bailey, defendant’s chief electrician at the theatre, testified in substance that he inspected all the lights prior to the first exhibition on the evening in question, and found them in good working order; that the theatre had what is called “cove” lighting in a large dome in the center of the ceiling; that in the dome there were many alternating white, red and blue lights; that only the blue lights were kept burning during an exhibition of a picture; that in addition to the dome lights there were several lights behind pink shades along the surrounding aisles of the balcony (the nearest one being about 15 feet away from where plaintiff fell), also certain clusters or torches of blue lights on the walls; that in all the middle aisles in the balcony there were so-called “Kausal” white lights, about 5 inches above the floor, so arranged as only to east their rays downward; that they were of small power — 10 watts — and were attached to every second seat next to the aisle, including every second seat to the left of said stairway, where they were about five feet apart; that there were no such lights to the right of the stairway, because of the “tunnel” exit; but that said exit, being lighted and being surrounded by open filigree ironwork, afforded some additional light to those ascending or descending the stairway. The three defendant witnesses, who testified to making’ an examination of the carpet on the stairway shortly after the accident, also testified that the “Kausal” lights, attached to the seats immediately to the left of the stairway, then were burning, yet it appears that they carried and used flashlights in making their examinations. Plaintiff’s testimony, and that of her daughter and her witnesses, Swanson and Terry, was all to' the effect that at the time of plaintiff’s fall the aisle and stairway were very dark; that said “KausaP’ lights were not then burning; and that there was no light on the stairway. And plaintiff’s evidence in these particulars was not controverted, except inferentially by defendant’s witnesses as above mentioned. Furthermore, although it appears that about the time of plaintiff’s fall several patrons of the theatre were leaving the theatre by said aisle and stairway, and many were seated thereby, yet defendant did not produce any witness who testified that then the “Kausal” lights were burning or that there was any light on the stairway.

We think that under the facts disclosed it was defendant’s duty to its patrons to sufficiently light the aisle and stairway during the exhibition of a picture. It appears that during exhibitions they, with defendant’s consent, entered or left the theatre at will by way of said aisle and stairway and by other aisles, etc. In 38 Cyc. pp. 268, 269, it is said: “The owner of a place of entertainment is charged with an affirmative positive obligation to know that the premises are safe for the public use, and to furnish adequate appliances for the prevention of injuries .which might be anticipated from the nature of the performance * * *. He is required to use care and diligence to put and keep the premises and appliances in a reasonably safe condition for persons attending; and if he fails to perform his duty in this respect so that the premises or appliances are in fact unsafe, he may be held liable for personal injuries occasioned thereby * * *. Reasonable care is held to be the measure of duty, and the undertaking of the proprietor is held not to call for an application of the same strict rule of responsibility as in the case of common carriers. He is not an insurer.” These rules have been held applicable as to the lighting of aisles, stairways, etc., of theatres (see note in 22 A. L. R. p. 670 et seq.) and to proprietors of moving picture theatres. (Andre v. Mertens, 88 N. J. L. 626, 628; Oakley v. Richards, 275 Mo. 266, 276; Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 356; Branch v. Klatt, 165 Mich. 666, 671.) And in the instant case we think that the question whether the stairway and steps were insufficiently lighted as charged, and whether defendant was negligent in failing to have them sufficiently lighted at the time of plaintiff’s fall, were questions for the jury under the conflicting evidence to determine. And we think that their verdict in these* particulars is amply sustained by the evidence. In the above cited case of Andre v. Mertens, the plaintiff after verdict recovered a judgment for injuries sustained in falling down certain inside stairs in defendant’s motion picture theatre. It was contended that the judgment was erroneous because of insufficient evidence of defendant’s negligence. It appears from the opinion that plaintiff, a girl of 19 years, entered the theatre during the progress of an exhibition, paid an admission fee, passed through the lobby, ascended a stairway leading to the balcony, took a seat and there remained for over one hour; that, having seen all she cared to see and wishing to depart, she went to the head of the stairway, and, finding that the stairway was unlighted and so dark that she could not see, paused to “feel” her way; and. that, taking hold of a handrail along one side of the stairway, she proceeded slowly down the stairs, but that, when she reached a turn in the stairs, she lost her footing, fell, and was injured. The reviewing court affirmed the judgment, and, after referring to the rules governing the liability of the proprietors of a theatre for personal injuries suffered by a patron, said that “the question whether the defendants were negligent in failing to provide a light was for the jury; for the evidence tended to show that the defendants had assumed to provide lights for the stairway, and that their failure to provide them on the occasion of the plaintiff’s exit resulted in her injury.” In the instant case the evidence showed that defendant had assumed to provide lights for the stairway by the installation of said “Kausal” lights, and there was evidence that at the time plaintiff fell these “Kausal” lights were not burning, and that the stairway was very dark.

Defendant’s counsel strenuously contend that plaintiff, in leaving the theatre unattended and while a picture was being exhibited and the theatre was in a darkened condition, was guilty of such contributory negligence as a matter of law as bars any recovery by her. We cannot agree. We think that under all the evidence the question whether she was guilty of contributory negligence was for the jury to determine. It appears that it was quite usual for patrons to leave the theatre unattended and while a picture was being exhibited. Furthermore, plaintiff testified: “There was no attendant there with a flashlight at the time I started down the stairs.” Substantially the same contention, as defendant’s counsel make here, was made in Andre v. Mertens, supra, where the New Jersey court held, under the very similar facts, that the injured plaintiff could not be held guilty of contributory negligence as a matter of law, but that the question whether she was or not was for the jury to determine. (See also Oakley v. Richards, supra; Bennetts v. Silver Bow Amusement Co., supra; Branch v. Klatt, supra.) And we cannot say that the jury’s verdict in the instant case, on the question of plaintiff’s contributory negligence, is contrary to the evidence.

Defendant’s counsel also contend (a) , that the trial court erred in the admission of certain evidence offered by plaintiff; (b) that the trial court unduly assisted plaintiff’s counsel in the examination of one of her witnesses, thereby leading the jury to believe that the judge favored plaintiff’s side of the case; (c) that plaintiff’s attorney in his closing argument to the jury made improper remarks which prejudiced defendant; (d) that the trial court erred in refusing to give certain instructions offered by defendant; and (e) in modifying (by adding certain words) instruction No. 10, offered by defendant and giving the same as modified. All of these contentions are argued at length in counsel’s printed argument, and we have considered all of them and believe them to be without substantial merit. If any errors there were they were not prejudicial to defendant. We think that the jury were fully and fairly instructed, and, in view of the allegations of the sixth count and the proof introduced thereunder, that the court’s modification of said instruction No. 10 was proper.

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

Affirmed.

Fitch and Barnes, JJ., concur.


author: Mr. Prbsidieg Justice G-ridley

text:
    Merritt O. Hoover, Defendant in Error, v. Viola Hoover Regner and Harry Regner, Plaintiffs in Error.
    Gen. No. 31,168.
    1. Judgments — when, defendant defaulted for want of pleading must move to set decree aside. Under Cahill’s St. ch. 22, 16, 17, giving right to pro eonfesso decree on defendant’s failure to- plead, and right to such defendant to move for vacation of decree on cause shown, at next term, “next term” means the next term after the entry of final decree and not of the order for default.
    2. Judgments — when showing sufficient to give chancellor discretionary power to vacate pro eonfesso decree and permit filing of ' answer. Under Cahill’s St. ch. 22, K 17, where a defendant at the next term after a final decree of default tenders sworn answer to the bill and offers to pay preceding costs and makes prima facie showing of cause to vacate the decree, it is within the discretion of the court to vacate the decree and permit defendant to answer and be heard on the merits.
    Error by defendants to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed December 21, 1926.
    Bennison F. Bartel, for plaintiffs in error.
    Earl J. Walker, for defendant in error.
   Mr. Prbsidieg Justice G-ridley

delivered the opinion of the court.

This writ of error was sued out from the Supreme Court, and, at the February term, 1926, the court ordered the cause transferred to this Appellate Court (320 Ill. 368).

After reviewing the record, briefs of counsel and the opinion of the Supreme Court, we think that the only question now to be determined is whether the superior court erred in denying the motion of defendants (plaintiffs in error) to vacate a default order (entered against them on January 18, 1924) and to set aside a pro confesso decree (entered against them on January 22, 1924) and to give them leave to file their answers as tendered (which motion was made during the next term of court following that in which the decree was entered), upon the sole ground that the court was “without jurisdiction” to set aside the decree — the term at which it was entered having passed before the motion was made. The theory on which the writ of error was sued out of the Supreme Court was that a freehold was involved, but the court, in its opinion (p. 370), said:

“The only question involved on this writ of error is one of procedure. The chancellor refused to pass on the merits of the motion to set aside the decree but denied the motion on the ground that he had no jurisdiction to decide it. This writ of error, therefore, presents no question giving this court jurisdiction, and the cause will be transferred to the Appellate Court for the First District.”

In determining the question, consideration should be given to the provisions of sections 16 and 17 of the present Chancery Act, passed in 1872, particularly section 17. They are as follows (Cahill’s St. 1925, ch. 22, fifi 16, 17):

“ § 16. Every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required in this Act, shall be held to except, demur, plead or answer on the return day of the summons; or if the summons is not served ten days before the first day of the term at which it is returnable, by the first day of the next term; or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court; or, in default thereof, the bill may be taken as confessed.”
“§17. If the defendant shall appear at the next term and offer to file his answer to the bill, the court may permit him to do so, upon his showing sufficient cause, and paying the costs of the preceding terms. In such case the decree shall he vacated and the cause may be proceeded in as in other cases.”

The present transcript discloses that complainant filed his bill on September 21, 1923, against Viola Hoover Begner, his daughter, Harry Begner, her husband, and the Security Bank of Chicago, seeking to compel the conveyance or assignment to him of three parcels of Chicago real estate held in the name of his daughter, and also to compel the transfer to him of moneys on deposit in the bank in certain accounts in the daughter’s name. Personal service was had upon all the defendants more than 10 days before the return day of the summons — the first day of the November term, 1923. The bank appeared and filed an answer, alleging that, since the filing of the bill, complainant and his daughter had joined in withdrawing from the bank all moneys in the accounts, and subsequently the bill was dismissed as to it. On January 18,1924, neither Mrs. Regner nor her husband having appeared, an order defaulting them was entered, and on January 22,1924, four days later, the pro confesso decree was entered.

In the decree the court, after reciting the prior proceedings and that testimony had been taken in support of the bill, found that complainant was the equitable owner of the three parcels, which Mrs. Regner held in trust for him, and that he was entitled to their transfer; that he was, and had been for many years, a practicing physician; that his daughter was married to Harry Regner in June, 1923, and for many years prior thereto she had attended to complainant’s accounts and business affairs; that in December, 1919, he obtained a contract for a warranty deed for one of the parcels, and, for his convenience, the contract was taken in her name; that in July, 1919, and in October, 1921, he purchased the other parcels, including a drug store on one of them, and the deeds likewise were taken in her name; that, he paid the consideration for the parcels out of his own funds, and at the times of the transfers she agreed, when requested, to reconvey or reassign the parcels to him; and that, although requested, she has since refused to do so. The court decreed that the defendants, within five days, convey or assign all three parcels to complainant, and, in case of their failure, that the master in chancery make the conveyances, etc.

On February 25, 1924, during the “next” term following that in which defendants’ default was taken and said pro confesso decree entered, they filed what they characterized as their special and limited appearance for the sole purpose of quashing the summons. On March 1, 1924 (still within said next term), they presented their written motion, after due notice, “to set aside and vacate the default heretofore entered on January 18, 1924, and also the decree pro confesso heretofore entered on January 22, 1924, * * * and for leave to file answers herein, and in support of said motion present the sworn petition of Viola M. Regner, together with her sworn answer and the answer of Harry Regner; and in furtherance of said motion said defendants agree to pay all the costs as required of them by statute and comply with such other orders as the court may direct.” We think, it apparent from the language of the motion that defendants had in mind the provisions of section 17 of the Chancery Act [Cahill’s St. ch. 22, [[17], and that Mrs. Regner’s petition accompanying the motion, together with her sworn answer then tendered, might be considered as disclosing prima facie “sufficient cause” for the allowance of the motion.

In her sworn petition Mrs. Regner alleged that it was not until February 21; 1924, that either she or her husband had any knowledge of the entry of the default order or the pro confesso decree, when she was so informed by complainant, and was further informed that the master, on January 31, 1924, had executed and delivered to complainant, the deeds or assignments to the three parcels. She further alleged that, immediately after the service of the summons upon her in September, 1923, she inquired of complainant the reason for the suit, and he told her it was because of her marriage to Harry Regner, but further said that “he was sorry he had started the suit and that he had ordered it dismissed.” She set forth in considerable detail a number of other conversations had with complainant in the months of October, November and December, 1923, and in January, 1924, while she was still working for him in his office, wherein he stated, falsely and fraudulently, that the suit had been dismissed and that she need not pay any further attention to it, or to the summons. She further alleged that she believed these statements and relied upon them, and did not, because of them, employ an attorney to investigate the suit until immediately after February 21,1924. She charged that the pro confesso decree had been obtained by complainant’s fraud, and on that account it should be vacated, etc.

Mrs. Regner’s sworn answer also appears in the transcript. It sets forth in detail when and how she became the owner (as she claimed) of the three parcels, including the drug store on one of them, which, after October 15, 1921, she personally had conducted. The gist of the answer is that all three parcels had been purchased with her own money; that she never had held them in trust for complainant and never had promised to convey them to him and he never had requested such conveyance of her, and that he had no equitable interest in any of them, or in the drug store.

On the same day (March 1, 1924) the court granted leave to defendants to file the motion and Mrs. Regner’s petition, and continued the hearing, and further ordered that complainant’s objections to the jurisdiction of the court to enter the order granting such leave be overruled.

After a hearing the court, on April 4, 1924, entered a draft order denying the motion, but allowed Mrs. Regner’s answer, as so tendered, to be filed “for the sole purpose of incorporating the same in the record on appeal.” Mrs. Regner prayed and was allowed an appeal to the Supreme Court but the transcript does not disclose that she perfected it. After setting forth the prior proceedings relative to the motion the court found:

“That upon the record in said cause that it is without jurisdiction to vacate said decree, under and by virtue of the provisions of Section 17 of Chapter 22 of Smith-Hurd Revised Statutes of Illinois, 1923, as the January term, 1924, had expired on February 3, 1924, and the said Motion and Petition to vacate the default and set aside the said final decree was not made or filed until March 1, 1924, which was in the February term, 1924, and therefore denies the motion to set aside the default and vacate said final decree.”

The above and foregoing is in substance all that is contained in the present record. Outside of the record we are informed by Mr. Hoover’s counsel that Mrs. Regner (not having perfected her appeal from the court’s denial of the motion to set aside the default order and decree) filed in the superior court, on October 31, 1924, an original bill, in the nature of a bill' of review, to impeach the decree upon the ground of Mr. Hoover’s alleged fraud in procuring it; that after a hearing upon the bill of review the superior court dismissed it for want of equity; and that, upon Mrs. Regner’s appeal, the Supreme Court affirmed that decree. (Regner v. Hoover, 318 Ill. 169; opinion filed June 18, 1925.) Inasmuch as Hoover’s counsel here argues in his brief that, “as the Regners have already had the judgment of the trial court and of the Supreme Court on the merits of this issue, it does not seem equitable to ask another opportunity to retry the same alleged facts,” we shall refer to the Supreme Court’s opinion. The court states (p. 170) that relief is sought by the bill of review upon two grounds, (a) error apparent on the face of the record and (b) fraud in procuring the decree; and that “the error alleged was, that relief was granted in the decree that was not warranted by the allegations of the bill or prayed in the prayer thereof.” The court then says:

1 ‘ Considerable space in the briefs is devoted to the merits of the cause under the original bill. Such questions have no place in the consideration of this cause. The question here is whether the original cause ought to be opened to trial on its merits. * * * An attack on a decree by a bill of review is collateral. The question is not whether the facts found in the decree under review are in accordance with the pleading and evidence but is one of law. A bill of review cannot be made to function as an appeal or writ of error.. (Harrigan v. County of Peoria, 262 Ill. 36.) Remedy for error in the final decree is by appeal or writ of error.” After a discussion of the evidence heard under the bill of review, the court further says (p. 173):
“It is evident that the proof does not sustain the charge that the appellant (Mrs. Regner) was prevented from presenting her case by reason of representations on the part of the appellee (Mr. Hoover). The clear weight of the testimony is that she knew that the suit was pending. In order to grant relief under a bill of this character on account of fraud, it must show that the complainant was prevented from interposing a defense by fraud and without negligence or fault upon her part. # * * The court did not err in finding that the charge of fraud was not sustained.” In reference to the contention that relief should be granted by bill of review because the pleadings did not justify the decree, the court further said (p. 174): “It is evident that the court had jurisdiction of the parties and of the subject matter, and where this is so its decree will not be set aside in a proceeding of this character on the allegation that it is not sustained by the pleadings. That is a question which can be reviewed by appeal or writ of error. Errors which present questions of procedure and not jurisdiction, and do not reach the matter of the right of the court to hear and decide a cause, go only to the question of the correctness of the court’s decision and are not open on a bill of review.” (Citing Vyverberg v. Vyverberg, 310 Ill. 599, 603.)

From the above opinion it appears that the question, whether the pro confesso decree was procured by fraud, was decided in the bill of review cause adversely to the Regners, but that the question, whether the allegations of Mr. Hoover’s bill sufficiently sustained said decree, was not decided. And we think it also appears from said opinion that the question presented under the present writ of error, as herein first above-mentioned, was not decided.

Sections 16 and 17 of the present Chancery Act [Cahill’s St. ch. 22, [[[[16, 17] are found in somewhat different language (except as to section 17) in section 18 of the Statutes of 1845 (Chap. XXI, Stat. 1845, p. 95), which is as follows:

‘ ‘ Sec. 18. Every def endant who shall be summoned according to the provisions of this chapter shall file his exceptions, plea, demurrer, or answer to the bill at the time to which the process or summons shall be returnable; if he fail to do so, the bill may be taken for confessed; but for good cause shown, the court may extend the time for excepting or pleading, and the court may thereupon enter an interlocutory decree, which may be made absolute at the next term, and carried into effect as other final decrees. If the defendant shall appear at the next term and offer to file his an-, swer to the bill, the court may permit him to do so, upon his showing sufficient cause, and paying the costs of the preceding terms; in such case, the decree shall be vacated, and the cause may be proceeded in as in other cases.”

It will be noticed that the last sentence of this section is identical with section 17 of the present act, and that section 16 of the present act is similar to the first sentence of said section 18, except that in section 16 the provision as regards an interlocutory decree is omitted. Sections 16 and 17, in the language as at present, appeared in the Act of 1872. (Hurd’s Stat. 1874, p. 200.)

Section 18 of the Act of 1845, as well as a similar section in the Act of 1833, and sections 16 and 17 of the Act of 1872, have from time to time been considered by our Supreme Court.

In Smith v. Brittenham, 88 Ill. 291, a bill was filed in the circuit court of De Witt county, in 1874, when sections 16 and 17 as at present were in force. The-complainant, Mrs. Brittenham, charged in her bill that in 1869 she made a conveyance of certain lands to the defendant, Smith, that certain alleged frauds had been practiced on her by Smith in inducing her to make the deed; and that the fraud had but recently been discovered. Service of summons was had on Smith more than 10 days prior to the September term, 1874, and he was ruled to answer the bill at that term, but, apparently, the cause was continued. At the ensuing December term, he not having appeared, his default was entered and it was ordered that the bill be taken as confessed against him. At the December term, 1876, the cause was referred to a master to take testimony and state an account of the rents of the lands. Notice was given to Smith of the hearing before the master but he refused to attend. And it appears that when the default order was entered against him he stated that he did not intend to defend the suit; that when the hearing was in progress before the master he persisted in his refusal not to make any defense, and that he had actual notice of every step that was taken in the case. The report of the master was filed and, during said December term, 1876, the report was approved by the court and a final decree entered, granting relief to complainant substantially as prayed for in her bill. At the March term, 1877, Smith, after giving due notice, entered his motion to have the decree vacated and for leave to answer the bill. He offered to pay the costs and tendered his answer, supported by affidavits. After a hearing the court overruled his motion and he appealed to the Supreme Court. In the opinion (p. 293) it is said:

“It is not perceived how the appeal, in this case, can bring before this court anything but the decision of the circuit court overruling the motion of defendant to vacate the decree in the cause, and for leave to answer to the merits of complainant’s bill.” (The court then quotes said section 17.) “Whether this provision, of the statute has reference to decrees ordering a bill to be taken for confessed, or to final decrees, admits of some doubt. If the former is meant, the motion made to vacate and for leave to answer, in this case came too late. More than two years had elapsed after the decree ordering the bill to be taken as confessed against defendant, before any motion was made to vacate the decree in this cause. But if it applies as well to final decrees, then the motion was properly made at the next succeeding term of court after the •final decree was entered in the cause. Setting aside decrees under this section of the chancery act, has been the subject of incidental discussion in numerous cases in this court, and in every instance, so far as we have observed, the matter has been treated as being within that sound legal discretion with which circuit courts are clothed, that will not be reviewed in an appellate court, u/nless there has been such abuse as may work palpable injustice. The very terms employed in the statute give sanction to this construction. It is said, the ‘court may permit’ defendant to file his answer to the bill against him ‘upon his showing sufficient cause.’ Leave is not given as a matter of right, but for what the court, in the exercise of a sound legal discretion, shall deem ‘sufficient cause,’ such defendant may be permitted to open the decree against him, on presenting his answer to the bill, and defend as to the merits of the cause, but not otherwise.” (Citing eases.)
“No reason whatever is shown for vacating the decree in this cause, and permitting defendant to come in at this late date, file his answer, and make that defense on the merits which he deliberately elected not to do when the cause was pending and undetermined in the circuit court.”

In the case of Grubb v. Crane, 4 Scam. (Ill.) 153 (cited in the Brittenham case, supra), the proceedings were had in the Sangamon circuit court in 1841, when the Chancery Act of 1833 was in force, section 8 of which being practically identical with section 18 of the Act of 1845. (Gale’s St., published in 1839, p. 141.) Crane’s original bill against Grubb prayed for the sale of certain lands in satisfaction of a judgment previously obtained by the former. Personal service was had upon Grubb, and at the return term of the summons, he not having appeared, the bill was taken pro confesso, and at the same term a final decree was entered against him in accordance with the prayer of the bill. At the next term he appeared and moved that he be allowed to file an answer to the bill, etc., which motion the court overruled. He then filed a bill of review and Crane’s demurrer thereto was sustained and the bill of review was dismissed, to reverse which action Grubb sued out a writ of error from the Supreme Court. He assigned various errors which are discussed in the opinion. One was that the trial court erred in taking the original bill pro confesso and entering a final decree, both at the same term at which the summons was returnable, and another was that the court erred in denying his motion to be allowed to file his answer, etc., which was made at the next term after said final decree on the original bill. In discussing these twoi claimed errors, and deciding them adversely to Grubb’s contentions, the Supreme Court, after setting forth the provisions of the first clause of section 8 of said Act of 1833, and of section 9 thereof (which is practically identical with section 18 of our present Chancery Act) said (p. 155): “Under the provisions of the statute, the practice has prevailed, to a very considerable extent, of taking bills pro confesso, and rendering a final decree at the return term. This practice has been found convenient and conducive to the ends of justice, and we would be unwilling to reverse a decree entered in pursuance of it, unless the letter of the statute were so clear and explicit as to render such reversal imperative. If injustice should be done to the defendant by entering a decree at the first term, the latter clause of the 8th section provides the most ample remedy. It provides that if the defendant shall appear at the next term, and offer to file his answer to the bill, the Court may permit him to do so, upon his showing sufficient cause, and paying the cost, of the preceding terms; in such case, the decree shall be vacated, and the cause may be proceeded in as in other cases.

“The record shows that the defendant did appear at the next term, and offer to file his answer, which was refused by the Court, and such refusal is also assigned for error.
“In such a case, the Court will never vacate a decree, and permit an answer to be filed, without first looking into the answer or affidavit, or both, and ascertaining whether there was a substantial and meritorious defense to the bill. In this case, the answer, if even presented to the Court, does not appear in the record, and the affidavit contains no facts showing a good defense upon the merits.”

It is to be noticed that in the opinions of the Brittenham and Grubb cases, while the motions of the parties, made at the next term after the pro confesso decrees were entered against them, were finally denied and said decrees were not vacated, there is no intimation that the trial courts were without jurisdiction to vacate said decrees because the terms at which they were entered had passed when the motions were made. On the contrary, it clearly appears that the motions were finally denied solely because “sufficient cause” for the vacation of the decrees was not shown.

In Collins v. Crotty, 65 Ill. 545, a case arising prior to the passage of the Chancery Act of 1872, it appears from the reported statement of the case preceding the opinion that Grotty filed his bill in La Salle county against certain defendants, of which Ann Collins was one, to quiet title to a tract of land, etc. After answering the bill Ann Collins filed a cross-bill, claiming an equitable title and praying for a conveyance from Crotty. At the term subsequent to the filing of the cross-bill, Crotty not having answered it, it was taken for confessed and a decree entered dismissing the original bill, and, among other things, requiring him to convey his title to Ann Collins, or in default thereof that the master in chancery make the conveyance. Crotty then filed another bill, returnable to the next term, praying for leave to answer the cross-bill and to vacate the decree, and for an injunction in the meantime, and setting forth the reasons why he was unable to answer the cross-bill, which was held sufficient cause. Ann Collins demurred to said other bill, her demurrer was overruled and she abided by it, and the decree under her cross-bill was vacated. In the opinion of the court it is said (p. 546):

“The bill, to which the demurrer was overruled, can not properly be characterized as a bill of review. The prayer for an injunction was necessary, to prevent the execution of a deed under the decree upon the cross-bill, until the court determined as to the vacation of the decree.
“The purpose of the bill, evidently, was to obtain relief, under section 18 of the chancery code (Eev. Stat. 1845, 95).
“That section should not be construed as applicable only to causes in which an interlocutory decree has been entered. * * * The last clause of the section is general in its language and application, that the court may, upon offer and a showing of sufficient cause, at the second term permit an answer and vacate the decree. If the interlocutory decree be entered, the defendant then has until some time in vacation or until the next term, according to the order, to file an answer, without any further permission of the court. In such case, the court exercises its discretion at the' return term. The latter clause of the section can have no application to such circumstances, for it provides that the court may grant permission to file an answer at the second term.
“The plain reading of the section is that, at the first term, if the bill be not taken for confessed, the court may exercise a discretion and extend the time for answer, and enter the interlocutory decree; and if the bill be taken for confessed, permission may be given to answer at the subsequent term.
“This case is within the last clause of the section. There was sufficient cause shown to induce the exercise of the discretion of the court, and the decree is affirmed.”

In the present cause, in view of the motion of the defendants (plaintiffs in error), made at the next term of the court after the final decree pro confesso was entered, and of the allegations of Mrs. Regner’s sworn petition, and of the allegations of her then tendered sworn answer disclosing prima facie a meritorious defense to complainant’s bill, and of sections 16 and 17 of the present Chancery Act [Cahill’s St. ch. 22, 16, 17] and the above-mentioned decisions of our Supreme Court discussing them, we are of the opinion that the superior court erred in denying said motion to vacate the decree and give defendants leave to file their answers, upon the sole ground that the court was without jurisdiction to decide it because the term of the court, at which the decree had been entered, had passed when defendants’ motion was made. We think that the court, because of the provisions of said section 17, should have considered the motion, Mrs. Regner’s sworn petition, and her sworn answer to complainant’s bill, and should have determined, in the exercise of that sound legal discretion with which the court is clothed, whether “sufficient cause,” prima facie, had been shown for the granting of the motion, defendants having offered to pay all the accrued costs as required by the statute. The court, in denying the motion upon the sole ground as above stated, evidently had in mind numerous decisions of the courts of review in this State, to the effect that, after the term at which a final decree is entered has elapsed, the court is without power to vacate or amend such decree, or to change or modify it except in matters of form or mere clerical errors. Many of these decisions are in cases where the decree was entered after the defendant had appeared and answered and after a full hearing upon the merits, as in Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 372, and Mooney v. Valentynovicz, 255 Ill. 118, 120. In the Tosetti Brewing Co. case it is said: “No error of law of any kind will justify revising or annulling a decree at a subsequent term1 in a summary way on a motion, but relief against it must be obtained by appeal or writ of error if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree for fraud or other sufficient cause.” In view of the provisions of said section 17, and of the above-mentioned decisions discussing it, we are of the opinion that where, at the next term after a final decree pro confesso has been entered, the defendant against whom it is entered appears, tenders his sworn answer to the bill, offers to pay the costs of the preceding terms, and makes a prima facie showing of sufficient cause for the vacation of such decree, the court has power and jurisdiction to exercise its discretion and vacate such decree, and also the previously entered default order, and permit such defendant to file an answer to the bill and thereafter hear the cause upon its merits. Section 16 [Cahill’s St. ch. 22, [[Í6] of the statute gives authority to the court to enter a default order against a defendant, who has not appeared within the required time after having been served or notified in the manner mentioned. Section 17, as we construe it, has reference to a final decree pro confesso, entered either at the same term at which said default order is entered or at a subsequent term and based- upon said order, and the section gives such defendant the right to appear at the next term following that in which such decree is entered and move for its vacation, upon offering to comply with the provisions of the section and showing “sufficient cause.”

Accordingly, the order or decree of the superior court, entered April 4, 1924, denying defendants’ motion to vacate said pro* confesso decree, entered January 22,1924, and for leave to file their answers to complainant’s bill, upon the sole ground that the court had no jurisdiction to decide the motion, is reversed, and the cause is remanded with directions to the court to consider and decide the motion upon its merits.

Reversed/ and remanded, with directions.

Fitch and Barnes, JJ., concur.


author: Mr. Justice Barnes

text:
    Agnese R. Cowles et al., Appellants, v. Morris & Company et al., Appellees.
    Gen. No. 30,420.
    1. Corporations — liability' under contract as affected by unauthorized representations of officers concerning same. Expressions of opinion by officers of a corporation, not shown to have been authorized by it, cannot bind it to support a pension, fund established by it in cooperation with its employees, farther than the rules of such fund provide.
    ' '2. Contracts — nonimplication of agreement unnecessary to full performance of express undertaking. No implication of an agreement by a party to a contract, to perform acts other than those expressly stated therein, can be predicated upon the ground that a provision to that effect would have been included had it not been mutually assumed that its insertion was unnecessary, unless nonperformance of such implied agreement would incapacitate such party from performing its express undertaking under the contract.

      3. Contracts — non-implication of undertaking inconsistent with express terms of contract. No implied agreement arises that a corporation will insure continuance of a pension fund when rules governing same were repugnant to such implication.
    4. Master and servant — rule of pension fund providing life pension for retiring employees as importing undertaking by employer to insure perpetuation of fund. Rule of a pension fund, established by a corporation in cooperation with its employees, providing a life pension for employees meeting certain qualifications of age and service, held based upon an assumed continuance of the fund and not to import an obligation of the corporation to insure its continuance out of its own assets, in view of another rule expressly negativing such obligation.
    6. Master and servant — rule of pension fund prohibiting pensioners from accepting other employment as importing agreement by employer to• insure perpetuation of fund. Rule of pension fund, established by corporation in cooperation with its employees, prohibiting pensioners from accepting other employment without permission of pension committee, held not to import an obligation on the part of the corporation to insure the perpetuation of the fund until the claims of such pensioners were paid, where such implication was negatived by other rules of the fund.
    6. Master and servant — inequalities in pension benefits resulting from premature exhaustion of fund as risk incident to contract. That some pensioners might draw a greater proportion than others of a pension fund before termination of contributions thereto by sale of founding company, was a risk incident to the contract.
    7. Master and servant — when employees’ pension fund not deemed “deferred wage.” Pension fund, partly formed from employees’ contributions, held not to constitute a “deferred wage,” where employer paid the standard wage for similar labor and participation in fund was a condition of employment
    8. Master and servant — employees’ contributions to pension fund held to rest wholly upon express terms of agreement establishing same. Contributions by employee to pension fund, when employer had not agreed to continue employment or contributions to the fund, are based wholly on the express terms of the fund contract, not on implied considerations.
    9. Master and servant — pension fund rules and regulations held to express entire agreement of parties. Rules and regulations under which employees’ pension fund established by employer in cooperation with employees was founded and administered held a complete contract, free from ambiguity or implication of omitted promises contemplated by parties as essential to fulfillment.

      10. Master and servant — sufficiency of evidence to show full performance by employer of terms of employees’ pension fund agreement. Evidence held to show employer had fully performed agreement under which employees’ pension fund was established.
    11. Contracts — limitation upon right to acquire or dispose of property. One is free to dispose of his property or acquire that of. others on such terms as desired if no rule of law, good morals or public policy is violated.
    12. Master and servant — right to condition employment upon participation in employees’ pension fund. Compelling employees on employment by the corporation which bought the rights, of their former employer, to put withdrawals from pension fund of the old concern into the new, is within the right of contract.
    13. Master and servant — servant’s pension right inchoate. The right of an employee to a pension is inchoate until happening of the contingency on which it was to be allowed.
    14. Master and servant — right of employees to withdraw contributions to pension fund .although- withdrawal prevented continuance of pensions payable thereon under rules. Contract of a pension fund giving right of withdrawal of individual contributions to the fund authorized some employees to withdraw their contributions and put them in a new pension fund of the company buying the one which founded the fund, though such acts made impossible further payments of pensions to employees entitled thereto under the rules governing the fund.
    15. Master and servant — when beneficiaries of employees’ pension fund not entitled to attack as creditors ■ sale of employer’s property. When an employer, founding a pension fund, in cooperation with its employees, has fully performed its agreement in respect thereof, pensioners under such fund cannot claim the status of creditors of the employer and as such attack a sale of its property as in fraud of their rights, under the Bulk Sales Law. although such sale entails the destruction of the fund and the termination of pension-payable under its rules.
    16. Master and servant — vested rights of beneficiaries of employees’ pension fund subject to right of withdrawal by other employees. Vested rights of pensioners in an employees’ pension fund are subject to the right of other contributors to withdraw contributions under the rules of the fund.
    17. Master and servant — master founding pension fund not liable thereto beyond rules in absence of control of or conspiracy with -committee in charge of fund. Committee in charge of a pension fund, acting under the rules of the fund, without showing of fraudulent conspiracy with the employing company founding the fund or control by it, cannot be held its agents so as bind it to continue contributions to the fund beyond the fund’s rules.
    18. Harmless an» prejudicial error — when complainants not prejudiced by order requiringf joinder of additional parties. Joinder of many other complainants on the court’s order when the theory of the action and rights of original complainants were not affected, was without prejudice to complainants.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed December 21, 1926.
    C. W. Armstrong, Rufus M. Potts, Verne D. Edwards and Thomas Hackney, for appellants.
    John M. Lee, M. W. Borders, Charles J. Faulkner, Jr., and Walter C. Kirk, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a decree dismissing a bill for want of equity.

It is a class suit brought by pensioners under “The Morris & Company Pension Fund,” devised and established by that company for the benefit of certain of its employees to be operated and administered under certain rules and regulations by which the employees becoming contributors to the fund agreed to be bound. The gist of the controversy is as to the nature and extent of the contractual relations thus established between the company and said employees.

Under the averments of the bill the defendants are naturally divided into four groups: (1) The Morris & Company group, consisting of that company by that name and the name it took after the sale of its business and physical assets in 1923, and two of its officers; (2) the Armour & Company group consisting of the Illinois corporation of that name, two of its officers, two affiliated foreign corporations of the same name, and The North American Provision Company, to which said sale was made; (3) the members of the committee administering the fund, and (4) certain defendants either dismissed out of the case or not served, whose interests are not before us.

The hearing was before the chancellor upon the issues raised by the answers of the several groups to the bill as amended, and replications to the answers. The bill is so voluminous, repetitious and argumentative that it is impracticable and unnecessary to state more than its theories and the essential admitted and evidentiary facts on which they are predicated.

On January 1, 1909, Morris & Company, then engaged in meat packing and kindred industries, inaugurated and put into effect a pension fund, denominated “The Morris & Company Pension Fund,” for the officers and certain employees of said company and affiliated companies. The plan was embodied in certain rules and regulations for raising, managing and paying out the fund, drawn up at the instance of Edward Morris, the president of the company, and submitted to each of the company’s employees then eligible to membership under the terms of the document. Such of them as wished to avail themselves of its provisions signed the form of application prescribed therein, and agreeing to- be bound thereby became contributors to and participants in the fund. By its terms the company was to contribute $25,000 annually until the fund equalled $500,000, and its agreement in this respect was carried out. It subsequently made donations to- the fund, the entire contributions of said company, its subsidiaries and Edward Morris, aggregating $1,249,966. Said employees, except those receiving a salary of $10 or less per week, were to contribute three per cent of their salaries. At the time of the sale, those members of the fund who had not been placed on pension had contributed $916,352.27, and the pensioners, including those whose pension had terminated, $131,968.79, and the fund had earned from investments nearly a half-million dollars. The rules prescribed to whom the fund was applicable, the ratio of their contributions thereto from their weekly or monthly pay, the conditions of eligibility to a pension allowance, and the rate thereof. They vested full and complete administration of the fund in a committee composed of two members named by the company and three members elected by the employees contributing to the fund. A majority of them were to govern and were given power to annul, alter, add to or amend any of the rules. The rules did not contemplate any control or direction by the company or other contributors over the committee or the fund.

After the sale of the physical assets and business of Morris & Company to the Armour interests, many of its employees, including some who were entitled to a pension, drew out their contributions to the fund, with interest thereon, as provided for by the rules, and accepted an offer of Armour & Company to enter its employ on condition that they contribute to a like fund for the employees of that company under requirements for back payments to put them on an equality with other members of the latter fund. Their withdrawals from the fund depleted it to about $320,000, an amount sufficient to continue monthly disbursements to those on pension at the then rate for only about 14 months, after which time the payments would have to be discontinued owing to the lack of funds. There were about 400 pensioners, 20 of whom filed this bill. By order of court the others were also made parties complainant.

The bill sets forth said rules and regulations in full as originally in force and as subsequently amended, the facts above stated in substance and certain evidentiary facts that need not be repeated.

Upon the facts alleged are predicated the following theories: (1) That Morris & Company “breached its contract of employment and implied contracts” between it and the contributors to the fund and pensioners thereof; (2) that it owed them a duty and obligation “to continue to operate or so to operate its said business as to insure the continuation and operation of said pension fund and payment in full for the full time promised * * * or in lieu thereof the duty and obligation of otherwise providing for the payment in full and for the full time promised of said pensions, benefits and annuities”; (3) that complainants have vested rights and interests in said fund as against mere members thereof and are entitled to have moneys so paid out to the latter returned to the fund; (4) that Armour & Company and its allied corporations and officers, and also the pension committee, “maliciously interfered in and intruded upon the rights of the complainants,” thereby inducing said Morris & Company to breach its contracts with them, and that the property of Morris & Company purchased by Armour & Company was subject to pensioners’ claims; (5) that the several defendants entered into a scheme and conspiracy whereby the business and physical assets of Morris & Company, so subject to pensioners’ claims, should be taken over by the Armour interests free from any lien or charge of any claim or right of said pensioners, so the Morris & Company Pension Fund should cease to function; (6) that the pensioners are creditors, and as to them the sale was void under the Bulk Sales Law [Cahill’s St. ch. 121a, [[[[1-3]. The bill seeks relief in line with these theories,- discovery relating to the terms, of the contract of sale, an accounting by the several defendants of the disposition of the pension fund and alleged dissipation thereof, an injunction to prevent stopping or delaying monthly payments to pensioners, and such other relief, etc.

Much of complainants’ evidence was offered to sustain its theory and contention that the rules and regulations did not embody the sole contract between Morris & Company and its employees, but that there were supplementary agreements amendatory thereof. They were permitted to introduce evidence of casual conversations or remarks, expressions in letters and speeches by agents and officers of Morris & Company that might induce confidence or belief of the employees that their pensions were assured for life and that Morris & Company with its “millions” stood back of said assurances. These statements were received in evidence upon the understanding that they would subsequently be connected with proof of their authorization. While many of the alleged statements were denied by the persons to whom they were attributed, nevertheless complainants failed to prove their authorization. At best, as held by the chancellor, they constituted mere expressions of opinion, and neither added to nor modified the company’s contractual obligations as established by the rules and regulations. This is so obvious that we may summarily ■ dismiss such statements from consideration or review as unauthorized and immaterial. Without such evidence there is no basis for the theory of supplemental agreements, and-appellants do not undertake to argue that the chancellor’s findings are against the weight of the evidence relating to these matters even if admissible.

The entire case, therefore, must rest on a proper construction of the rules and regulations as embodying the complete contract. We need not recite them at length. Only a few of the rules need to be alluded to. Looking to their various provisions we find no room for any of the theories upon which the bill is predicated. Under them, all that Morris & Company was obligated to do was to contribute to the fund $25,000 annually until it reached $500,000, and appoint its representatives on the committee. All this it did, and much more that was entirely gratuitous, whether prompted by self interest or philanthropic motives, as is conceded. In fact the alleged breach of contract is predicated, not on the omission to perform any express agreement, but mainly upon an implied agreement and duty of the company to continue to operate its business so as to insure and assure the continuation and operation of the pension fund, and to provide for the payment of pensions therefrom in full for the life of' the pensioners, and that it had no lawful right to discontinue its business and stop the contributions to the fund without providing a fund, estimated at $7,000,000, for the payment of such pensions.

Nothing in support of this extraordinary contention can be found in the express terms of the contract, nor in the nature of the contract itself. The principle relied on to sustain the alleged implication is stated in 2 Parsons on Contracts (7th Ed.)p. 46, as follows: “The general ground of a legal implication is that the parties to- the contract would have expressed that which the law implies had they thought of it or had they not supposed it was not necessary to speak of it because the law provided for it.” The principle is applicable where the contract violated contains an express agreement to do what cannot be performed if the party omits to do what is necessarily implied for performance. -The principle .is conceded. But the cases cited by appellants as illustrative of the principle relate mostly to contracts involving an element of time within which a party agrees to do a certain thing, and where before the expiration of the time he deliberately or wrongfully incapacitates himself from performance. There is no analogy in such a situation to the contract at bar. Morris & Company did not incapacitate itself from performing anything it undertook to do. The last payment required to fulfil its obligation to contribute to the fund was made in 1914. All contributions thereafter were to be made by the employees, and the committee was left in exclusive charge of the fund and the duty of administering it free from any control of Morris & Company and of any further obligation on its part with respect to it.

The only language pointed out in the rules upon which the fund was established to sustain a different construction is found in Bule VII, which reads:

“An officer or employee who has been twenty consecutive years in the service, on attaining the age of fifty-five years, shall be entitled to a Pension for life on retiring from service.” Appellants place special emphasis on the words “for life.” But Buie XXXI was manifestly intended to negative any inference or implication of any other obligations of the company towards the maintenance of the fund or liability therefor than those it expressly stipulated to as aforesaid. That rule reads:
“No pensioner, even after payment shall have been so approved and ordered, shall be entitled to have any part of the capital or income of the Company set aside to provide for the same. All sums of money shall be paid out of the Pension Fund.”

This rule clearly imports that those retiring bn a pension must look solely to the fund as raised and provided for in the rules, and refutes the theory of a lien on the assets of the company in the hands of the purchaser or otherwise. To hold there was such an implication would be not only to import into the agreement a provision the parties deliberately omitted therefrom, but one repugnant to other express provisions thereof.

These words “for life” in Buie VII must be regarded as assuming the continuance of the pension fund in the manner provided for by the rules, and not as obligating the company to continue it. In Lead Co’s Workmen’s Funds Society, In re Lowes Governor & Company for Smelting Down Lead with Pit and Sea Coal, 73 Chan. Div. L. J. R. 628; 20 L. T. R. 504, a somewhat similar rule required construction. The society was formed to provide benefits for workmen out of its funds raised by fees and contributions from each member until he had attained the age of 65. The employing company ceased to carry on business, necessarily resulting in a cessation of such contributions and no employees to make them. The suit was brought to have the society dissolved and its funds distributed. One of the rules provided that a member of the society, upon attaining the age of 65 years, who had ceased to contribute to the society would become “indefensibly entitled to a weekly allowance of six shillings for the remainder of his life.” The court held in effect that these words did not mean that the beneficiaries were indefensibly entitled to the weekly allowance whether the funds in the society were sufficient or not, but that the rule assumed that the society would have sufficient funds.

It is apparent that the continuance of the Morris & Company Pension Fund would depend upon the continuance of its business, and if appellants’ contention is correct it involved either an obligation to continue it regardless of all other considerations, financial or otherwise, or on the sale of its property the establishment of a fund out of its assets sufficient — if it be solvent — to pay pensions, at the prescribed rate, to the 400 or more employees then on pension or entitled thereto for their entire lives. The amount estimated by appellants for that purpose is $7,000,000. That the agreement contemplated any such obligations, or restriction upon the company’s right to dispose of its property, is not within the bounds of reason. It is safe to say that no industrial concern could safely, or would knowingly, enter into such an obligation, and if it could be implied from the nature or character of. such an agreement the risks entailed would serve to prevent industrial concerns from establishing or participating in, and thus defeat, such benevolent enterprises. There is neither law nor precedent for the contention. There is nothing in the contract which imposes any limitation upon the right of the company to discontinue its business. The exercise of that right necessarily involved a dismissal of its employees and stoppage of their contributions to the fund. Upon their dismissal they were entitled under the rules to a withdrawal of what they had contributed, with interest. Whatever effect this situation had on the balance of the fund it followed as an incident to the contract.

Much stress is laid by appellants on an amendment to the original Rule XXVIII which provided that the acceptance of a pension would not debar a retired officer or employee from engaging in any other business which in the judgment of the committee was not prejudicial to the interests of the company. In 1917, under conditions growing out of the World War, the rule was changed to read: “¡No Pensioner shall accept any employment without permission from the Pension Fund Committee, and Morris & Company shall at all times have first call on the services of a retired employee.” The propriety of this rule, or whether it was within the spirit of the contract, or whether it operated to the disadvantage of any employee, or whether it was justified by the World War conditions, is aside from its bearing upon the obligation of the company to provide for the continuance of the fund. While the evidence as to the operation of the rule discloses no particular hardships resulting therefrom, it is manifest that when the company ceased doing business the rule ceased to have any operation. In fact on the sale of the business, the committee declared the rule was no longer in force. Whether or not the rule may be said to have established new contractual relations not contemplated in the original rules or not within the power of amendment, yet there is nothing in the rule or the relationship thus established which effected any change of contract so far as the obligation of the company to continue the fund is concerned.

While it has no direct bearing on the merits of the controversy, it may be mentioned, in mitigation of alleged injustice from discontinuance of the business, that, as a whole, the pensioners have lost nothing from the arrangement, but have drawn out something like 13 times as much money as they contributed to the fund. They contributed $131,968.79, and have been paid out of the fund $1,652,850.58. The original 20 complainants paid into the fund $8,378.28 and drew out $85,522.99. Perhaps others now on pension have not realized proportionate benefits. If so, it was a risk incident to the contract.

Another argument advanced in support of the obligations to continue the business or the fund is that the pension constitutes a “deferred wage.” There might be room for such a theory if there was consideration for a pension based on a reduced wage. But Morris & Company paid the standard wage for similar labor. While no doubt the expectation of a pension on the stated conditions furnished an inducement to enter the company’s employ, contributions to the fund from the employee’s wages was, under the rule, a condition of his employment after a period of six months. But the company did not obligate itself to continue it or the fund. In other words, his contribution rested entirely upon the express terms of the contract and not upon outside or implied considerations.

We deem it unnecessary to follow appellants’ argument upon the features of different pension systems, public and private, and the distinctions made between rewards, bonuses, gratuities, deferred wages, etc. Lengthy quotations are made from dissertations of students of pension systems, and from reports of commissions and other bodies dealing with them, which, of course, have not the sanction of legal decisions, but no pertinent legal authorities are cited that warrant interpretation of the contract as imposing an obligation to pay pensions as a “deferred wage.”

We must, therefore, hold that the rules and regulations under which the fund was established and administered constitute a complete contract, free from ambiguity or implication of any omitted provision contemplated by the parties as essential to its fulfillment, and that Morris So Company performed its part of the contract and is in nowise guilty of a breach thereof.

This construction of the contract obviates the necessity of discussing other contentions more or less dependent upon the existence of such a breach. If the contract was not breached by the sale of the physical assets of Morris So Company, and the discontinuance of its business without a provision for future maintenance of the trust fund, then the purchaser took the property without any lien or obligation growing out of the contract. . Authorities are unnecessary for the proposition that a party is free to dispose of his property, or acquire that of others on such terms or conditions as he sees fit, provided they do not conflict with any rule of law or good morals or public policy. (Parker-Washington Co. v. City of Chicago, 267 Ill. 136.) There is nothing in the proof to substantiate the claim of any wrongful or unwarranted methods on the part of Armour So Company or its officers, or the actual purchaser to induce the sale. The arrangements proven whereby the employees of Morris So Company were in effect on employment by Armour & Company to turn their withdrawals from the Morris So Company Pension Fund into the Armour So Company Pension Fund were within the legitimate scope of the right of contract.

Whatever motives actuated Morris So Company to sell, its rights being in no way hampered or limited by an obligation to continue the pension fund, and its discharged employees being entitled on dismissal to withdraw their contributions thereto and consequently free to deal with the sum refunded to them as their own personal property and to contract with reference thereto and on such terms of other employment as they saw fit, it cannot be said, in the absence of any proof of fraud — and none is shown — that the arrangements made by Armour & Company with said employees constituted a conspiracy against or an intrusion upon any right complainants had to the fund. They had no right to the fund superior to that of the other contributors. (29 Cyc. 38.) The contract right to withdraw contributions under the conditions fixed by the rules and regulations was as sacred as the right to pension benefits under other conditions. The right to a pension was merely inchoate until the happening of the contingency on which it was allowed and paid (McNevin v. Solvay Process Co., 32 App. Div. 610, 53 N. Y. S. 98; 167 N. Y. 530), and even then subject to the contract right of each employee contributing to the fund to withdraw his contribution on resignation or dismissal.

We think it clear that under the rules and regulations those retiring on a pension could look only to the fund left after the exercise of the right to such withdrawals. The status of complainants, therefore, not being that of creditors of Morris & Company, their various theories of right to discovery by inquiry into the details and terms of the contract of sale, and of a lien on, or right to follow into the hands of the purchaser, the transferred property of said company, and of a violation of the Bulk Sales Law [Cahill’s St. ch. 121a, fifi 1-3], must each and all fall for want of a proper basis in law or equity.

The claim of vested rights has been frequently urged where allowances of mutual or benevolent societies for sick benefits have been lessened by subsequent authorized amendments to the society’s by-laws by which the members were bound. (Stohr v. San Francisco Musical Fund Society, 82 Cal. 557; Smith v. Galloway [1898], 1 Q. B. 71; Supreme Lodge, Knights of Pythias v. Knight, 117 Ind. 489; Fugure v. Mutual Soc. of St. Joseph, 46 Vt. 362; Poultney v. Bachman, 31 Hun [N. Y.] 49; Pain v. Société St. Jean Baptiste, 172 Mass. 319; Marchant v. Lee Conservancy Board, L. R. 9 Exch. [Eng.] 60, 30 L. R. Rep. 367; Steen v. Modern Woodmen of America, 218 Ill. App. 152; Supreme Council Royal Arcanum v. McKnight, 238 Ill. 349.) The tenor of the decisions in these cases is that it is a question of construction of contract. In effect they hold that reservations for amendments of by-laws effecting such changes, being a matter of contract, beneficiaries under the fund provided for were bound thereby and could not urge impairment of a vested right, their rights being only such as the contract in each case created. Here the rights of the pensioners being subject to the contract right of each employee contributing to the fund to withdraw his contribution on resignation or dismissal, the exercise of that right would necessarily decrease the fund, and to that extent diminish the prospect of future benefits to pensioners. In the very nature of things the status of the fund was subject to fluctuating conditions resultant upon withdrawal, whether gradual by resignation or dismissal, or from a discontinuance of the business and consequent termination of further contributions to the fund. In view of these provisions of the contract and the contingencies it contemplated there is no room for the contention of a vested right of the pensioners in the fund so returned, or of liability of the committee in so refunding. The committee would have violated its trust had it refused to refund to the discharged employees in conformity with its express terms. That the pensioners had a vested right in the balance of the fund is not questioned.

The theory that the committee was an agent of the company is also untenable. While they may have been amenable to and have acted upon suggestions from the company or its officers in amending the rules or otherwise, their powers in all respects were independent of any control or direction by the company, and there is no evidence tending to show that they exceeded their powers or violated their trust, or were parties to any conspiracy to interfere with any rights complainants possessed.

As before stated, this suit was begun by 20 of the pensioners as a class suit. It appearing that other pensioners under the fund, whose relations to the questions raised by the bill are the same, had employed in the matter the same solicitors as the original complainants, the court, on defendants’ motion, required complainants to make them parties to the record. Complainants excepted to the order but made 145 other pensioners, in like situation as appears from the bill, as amended, additional parties complainant. It can hardly be questioned that had the latter not come in as cocomplainants, they might, by reason of their interests, have been made parties defendant. They seemed to have joined as complainants without protest. The question arises on the exception of the original complainants. But it is purely academic. Regardless of the propriety of the order we fail to see that any of the parties were injured by pursuing jointly interests common to all. The change of parties did not change the theory of the action or any rights of the original complainants thereunder.

The decree dismissing the bill for want of equity is affirmed.

Affirmed.

Gbidley, P. J., and Fitch, J., concur.