author: Mr. Justice O’Connor

text:
    Pauline Porter White, Appellee, v. Robert White, Jr., and Emma Merigold White, Administrator and Administratrix, Respectively, of the Estate of Robert White, Deceased, Appellants.
    Gen. No. 36,676.

      Matchett, P. J., dissenting.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the April term, 1933.
    Rehearing denied May 14, 1934.
    Tolman, Chandler & Dickinson, for appellants.
    Moses, Kennedy, Stein & Bachrach, for appellee ; Hamilton Moses and Seymour A. Greenblatt, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff broug'ht suit against the defendants to recover $799.56 which she claimed as a balance due her from rents collected by Robert White, the deceased, in his lifetime, under a written agreement entered into between plaintiff and Robert White, whereby White managed a building belonging to plaintiff. At the time of his death Robert White had in his possession from rents collected by him under the agreement $799.56. The defendants filed an amended affidavit of merits in which they set up that Robert White had not been paid in full for the services he had rendered plaintiff and therefore they • were entitled to retain sufficient of the moneys collected by him to pay for the services. Afterward, on plaintiff’s motion, defendants’ amended affidavit of merits was stricken because it did not set up a legal- defense. Defendants elected to stand by their amended affidavit of merits, and thereupon judgment was entered for plaintiff on her statement of claim, and this appeal followed.

The record discloses that on February 26, 1930, plaintiff and Robert White, who was engaged in the real estate business in Chicago, entered into a written contract whereby Robert White was to manage a building belonging to plaintiff for a period beginning March 1, 1930, and ending December 31, 1934. The contract is set out verbatim in plaintiff’s statement of claim. It provided, among other things, that White should manage the building, make leases, collect rents, pay all bills, and retain five per cent of the gross rentals collected by. him in payment -for his services, turning over the balance to plaintiff.

Upon the execution of the contract White proceeded to manage the building and continued to do so until his death April 25, 1932. He rendered detailed statements to plaintiff as provided by the contract, except for the months of March and April, 1932. During these two months he had collected more than $2,000 in rents and was entitled on account of disbursements made by him to a credit of more than $1,300, leaving in his hands, as plaintiff contends, $799.56.

On the other hand, defendants contend that since White, in his lifetime, had obtained leases which ran for considerable periods of time after his death, he had not been compensated in full for obtaining such leases, and after crediting White for the reasonable value of such services, defendants had in their hands but $67.10 belonging to plaintiff, which they tendered.

Both parties seem to agree that the death of Robert White terminated the agency.

Plaintiff’s theory of the case is that under the terms of the contract White was entitled to a commission of five'per cent on the gross rentals actually collected by him, and nothing more. Defendants’ position is that while the death-of White terminated the agency, there was an implied obligation on the part of plaintiff to pay reasonable compensation for the services rendered by White for obtaining the leases which had not expired at his death. The one substantial question in the case is the construction of the written contract.

The substance of the contract, so far as is necessary to state here, is that plaintiff owned a building known as No. 500-502 South Wells street, Chicago, and employed plaintiff to manage the building for her. He was to have complete and exclusive management and operation of the building from March 1, 1930, to December 31, 1934, a term of four years and ten months, and was authorized to procure tenants, make leases, collect rents, make repairs, pay all bills, etc., and “to retain from the proceeds of the rents ... a sum or commission equal to five per centum (5%) of the gross amount of all moneys actually paid by or collected from all of the tenants . . . .” And he agreed “to accept the said commission in full payment and consideration for the said services.”

The contract further provided that on or before the 5th of each month White should render to plaintiff a detailed statement in writing accompanied by receipted vouchers covering all receipts and disbursements made by bim during the preceding month, and after deducting five per cent of the gross rentals for his commissions and the disbursements made, pay over the balance to plaintiff. A further provision was, “In the event of the sale of said premises or of a lease of the entire building for a term of ten (10) years or more, then this agency agreement shall be deemed canceled and of no further force and effect . . . . ”

“The owner [plaintiff] shall have the right to cancel this agreement as of December 31, 1932, or as of any date thereafter, by giving to the Agent [Robert White] herein sixty (60) days prior written notice of its intention so to do, . . .in which event the Owner shall pay to the Agent herein the regular real estate board rate of commission for the nnexpired portion of any and all leases which shall have been consummated by the Agent herein. ’ ’

' It seems to be conceded that the contract being personal, the effect of Eobert White’s death was to terminate the duty of White’s personal representatives of going forward with performances, and plaintiff contends that the death of Eobert White “did not nullify the contract in the sense of emancipating his personal representatives from the restraint of its conditions.” And that since the contract expressly provides that White was to receive for his compensation five per cent per month of the gross rentals collected by him,this is the full extent of plaintiff’s liability.

From a careful consideration of the entire contract, we are of opinion that the parties to the contract did not have in mind the contingency of the death of Eobert White before the expiration of the period covered by the contract, namely, December 31, 1934. We t.hinfr it was not contemplated that five per cent of the gross rentals was the extent of White’s compensation in all circumstances. This is shown by paragraph 10 of the contract, which provides that plaintiff might cancel the contract December 31, 1932, or at any date thereafter by giving 60 days’ notice of her intention so to do, in which event White was to be paid “the regular real estate board rate of commission for the unexpired portion of any and all leases which shall have been consummated by the Agent.” This compensation would be in addition to the five per cent retained by Eobert White from the collections actually made by him, and indicates that the five per cent was not to be the sole compensation White was to receive if the agency terminated before December 31, 1934.

Where a contract calls for the personal services of one, whose death prevents full performance, his personal representatives are not liable for its performance. Smith v. Preston, 170 Ill. 179; Emerich Outfitting Co. v. Siegel, Cooper & Co., 237 Ill. 610. The general rule is that a recovery may be had by his representatives for the reasonable value of the services performed unless the contract clearly makes the whole performance a prerequisite to an obligation to pay for any part of the work. 13 Corpus Juris, 642, 643; 2 Corpus Juris, 760; 3 Williston on Contracts, sec. 1973; Coe v. Smith, 4 Ind. 79; Parker v. Macomber, 17 R. I. 674; Wolfe v. Howes, 20 N. Y. 197; Clark v. Gilbert, 26 N. Y. 279; Lauda v. Shooks, 87 Texas 608; Matter of Buccini v. Paterno Const. Co., 253 N. Y. 256.

In 13 Corpus Juris, pp. 642, 643, it is said: ‘ ‘Where from the nature of the contract it is evident that the •parties contracted on the basis of the continued existence of the person or thing, ... to which it relates, the subsequent perishing of the person or thing . . . will excuse the performance, a condition to such effect being' implied, in spite of the fact that the promise may have been unqualified . . . . ”

And in 2 Corpus Juris, 760, it is said: “Where the death of the agent prevents full performance of the contract on his part, the general rule is that a recovery may be had by his representative on a quantum meruit for the services performed.”'

And in discussing the question of the recovery for services where full performance is impossible, Prof. Williston, in his clear and lucid work on contracts, says (vol. 3, sec. 1973): “It would be admitted, however, certainly everywhere in the United States, and perhaps in England, that the employee or his representatives may recover the fair value of any services rendered by him for which, because illness 6r death stopped performance, he could not recover on the contract, unless the contract clearly makes the whole performance a prerequisite to the existence of an obligation to pay for any part of the work.”

In Coe v. Smith, supra (4 Ind. 79), where an attorney was engaged to defend a suit for an agreed fee and died after partial performance and before, the case was determined, it was held that his administrator might recover from the client for the reasonable value of the services rendered. The court there, in discussing the right of the personal representative of one who died pending the performance of a contract, which had been taken for a specified sum, after discussing the old rule announced by some authorities, that no recovery could be had, said (p. 80): “In some courts, however, this doctrine seems to have been doubted, if not denied. Kent, to the observation above quoted, adds: ‘The old rule is now held to be relaxed, and wages, it is understood, may be apportioned upon the principle that such is the reasonable construction of the contract of hiring. ’ ”

To the same effect is Wolfe v. Howes, supra (20 N. Y. 197), where one was hired to work in a glass factory for a year at $40 a month, $10 of which was to be paid monthly. He died before the year was up and it was held that recovery could be had for compensation for the time that he worked. It was contended that full performance was a condition precedent to recovery, but the court held the test was what was the intention of the parties. It is there said (p. 200): “It has undoubtedly been long settled as a general principle, both in England and in this as well as in most the other States, that where the contract is entire, nothing but the default of the defendants will excuse performance. It will be found, however, on an examination of the leading cases in our own courts, that the failure to perform was owing to the fault or negligence of the party seeking to recover. (Citing cases.) It is believed that not a single case can be found where the rule is laid down with such strictness and severity as the defendants’ counsel asks for in the present case. . . .

“The great principle upon which the adjudged cases in all the courts is based, is the question, as stated in McMillan v. Vanderlip, already cited, What was the real intention of the parties'? The law gives a reasonable construction to all contracts. For instance, in the present case, did the parties intend that the contract should be binding upon the plaintiff’s testator in case of unavoidable sickness or death; or did they intend, and is it to be implied, that each should perform, as to the other, according to the terms of the contract, Deo volentef It appears that a fair and legal interpretation would answer this question in the affirmative, and that such a provision must be understood as written in the contract. Nor is this principle wanting sanction either by elementary writers or adjudged cases. ‘Where the performance of a condition is prevented by the act of God, it is excused.’ ” And continuing, the court quoting from Story on Bailments (pp. 201, 202) said that “where the contract is for personal services which none but the promisor can perform, there inevitable accident or the act of God will excuse the non-performance, and enable the party to recover upon a quantum meruit. . . .

“The conclusion, then, is that where the performance of work and labor is a condition precedent to entitle the party to recover, a fulfillment must, be shown; yet that where performance is prevented or rendered impossible by the sickness or death of the party, a recovery may be had for the labor actually done. This is not out of harmony with principle or adjudged cases, and is certainly in harmony with the rules of common honesty and strict justice.”

. We do not stop to discuss all the other authorities cited, but the holding in them is to the same effect. We think it sufficient to refer to the case of Buccini v. Paterno Const. Co., 253 N. Y. 256, opinion by Chief Judge Cardoza. In that case “Buccini made a contract with the Paterno Construction Company to decorate the ballroom, banquet hall and swimming pool in a dwelling described as‘Paterno’s Castle’ on Riverside Drive in the city of New York.” The work called for artistic skill and there was a provision that it should be done by Buccini personally. He died while the work was in progress. After his death a controversy arose as to what, if anything, was due for the work performed by Buccini. The court said (pp. 257, 258): “The contract being personal, the effect of his death was to terminate the duty of going forward with performance, but to leave the owner liable for benefits received. (Wolfe v. Howes, 20 N. Y. 197. ... 3 Williston on Contracts, sec. 1973.) ” The contract provided that all questions that might arise in the performance of the work should be submitted to arbitration; and continuing, the court said: “We think the controversy as to the value is within the range of that provision. Into every contract of personal service the law reads ‘the implied condition’ that sickness or death shall be an excuse for non-performance. . . . The parties may say by their contract what compensation shall be made in the event of that excuse. The award will then conform to the expression of their will. They may leave the subject open, to be governed by the law itself. The award will then conform to the principles of liability in gwsi-contract and to the considerations of equity and justice by which that liability is governed. In either event the controversy is one that has its origin in the contract and in the performance of the work thereunder, just as much as if the work had been completed under a contract silent as to price, and the controversy had relation to the reasonable value. Death of the contractor has not nullified the contract in the sense of emancipating the claimant from the restraint of its conditions. They limit her at every turn. She cannot stir a step without reference to the contract, nor profit by a dollar without adherence to its covenants (cf. Reeder v. Sayre, 70 N. Y. 180,184). The interrupted work may have been better than any called for by the plans. Even so, there can be no recovery if the contractor wilfully and without excuse has substituted something else. . . . The value proportionately distributed may be greater than the contract price. Even so, the price, and not the value, will be the maximum beyond which the judgment may not go. . . . The question to be determined is not the value of the work considered by itself and unrelated to the contract. The question to be determined is the benefit to the owner in advancement of the ends to be promoted by the contract.

“Stress is laid by the owner upon a term of the agreement whereby payments are to be made at the rate of ‘75% of the value of the work installed as the work progresses, ’ and whereby the owner is to" determine the amount due when such payments are requested. This provision is inapplicable to the case that has arisen. It has in view the continuing fulfillment of the contract and requests for part payment while performance is in progress. It has no bearing upon a situation where through death or disability of one party or of both, the duty of performance has been ended without the fault of either.” ’

Under the contract before us we hold that the contingency of Robert White’s death before the termination of the period fixed in the contract was not contemplated by the parties and there was no provision covering his compensation in such a contingency; but, as Judge Cardoza says in the case above quoted from, it “cannot exceed the contract price, or the rate of it for the part of the service performed,” as prescribed by the contract.

Defendants’ affidavit of merits sets up a legal defense and it was error to strike it.

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

Reversed and remanded.

McSurely, J., concurs.

Matchett, P. J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Construction Finance Corporation, Defendant in Error, v. Bertha Kawohl et al., Plaintiffs in Error.
    Gen. No. 37,291.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    Jacob Levy, for plaintiffs in error; James M. Gwin, of counsel.

      Abrams, Sherman & Lewis, for defendant in error; Clyde C. Fisher and Louis A. Sherman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

June 8, 1931, complainant filed its bill to foreclose a mechanic’s lien. All the defendants were defaulted. The cause was referred to a master in chancery to take the proofs and make up his report. He recommended a decree in accordance with the prayer of the bill.

The bill of complaint made the unknown owner or owners of certain notes secured by a trust deed parties defendant and they were served by publication. December 7, 1931, a decree in the usual form was entered. More than a year and nine months later, namely, September 11, 1933, Bertha Kobetzky, by leave of court, filed her petition alleging that she was made party defendant as an unknown owner of the notes secured by the trust deed above referred to; that she had not been served with summons or a copy of the bill and had not “received the notice of the pendency of this suit, required to be sent to her by mail by the Clerk of this court and has received no notice in writing of such decree.” The prayer was that she be given leave to file her answer to the bill, that the matter be heard, and the decree altered or amended. Complainant filed an answer to the petition setting up, among other things, that the property had been sold under the decree pf foreclosure.

October 2, 1933, the matter came on for hearing and a decree was entered denying the prayer of the petition and striking it from the files. An appeal was prayed and allowed to this court, which was apparently abandoned, and on December 18, 1933, a writ of error was sued out from this court.

Complainant contends that the writ of error should be dismissed on its motion because it was sued out after more than two years had elapsed from the time of the entry of the decree. The defense that a writ of error is barred by the Statute of Limitations must be raised by plea and not by motion. Kelly v. Kelly, 291 Ill. 238.

Defendant Bertha Kobetzky contends that since the Commonwealth Construction Company was the contractor that did the work for which the mechanic’s lien is sought, and since it was alleged in the bill that the contract had been assigned to .complainant, the Construction Finance Corporation, such assignment must be proved; that the evidence shows the assignment was not made to complainant, the Construction Finance Corporation, but to the Contractors’ Finance Corporation.

There is an exhibit in the record which purports to be an assignment by the Commonwealth Construction Co. to the Contractors’ Finance Corporation, but a witness for complainant testified that he had been connected with complainant for five years and that the contractor, the Commonwealth Construction Co., assigned its rights under the contract for the doing of the work, to complainant. While there is an apparent conflict in the testimony of this witness and what purports to be the written assignment, as to the name of the assignee, we think it apparent that the error was merely on the part of the printer. Moreover, complainant offered in evidence a note for the amount due under the contract, namely, $1,025.28, signed by the owners of the property who had entered into the contract for the doing of the work. Complainant being the owner of the note evidencing the indebtedness, it is apparent that there was a mere error in the assignment.

The further contention of defendant, that there was no proof as to the ownership of the premises in question, is wholly without merit. The bill alleged that certain of the defendants, naming them, were the owners in fee simple of the premises. These parties were personally served with process and their default regularly taken so that the ownership of the property as alleged was admitted of record.

A further point is made by defendant that her petition was filed in apt time and therefore the court should not have stricken it.' In support of this it is said that section 19 of the Chancery Act (chap. 22), which was in effect at the time the bill of complaint was filed, namely, June 8, 1931, authorized the filing of such petition within three years after the entry of a decree by one who was served by publication, etc., where he had not been notified as a matter of right and without the necessity of any showing of merit, and that these provisions of the statute were not changed until July 1, 1931, which cut down the period of time from three years to one year after the entry of a decree, within which such a defendant might file his petition, and which gave discretion to the court as to whether he would allow the filing of such petition. We think this contention cannot be sustained.

Prior to July 1, 1931, section 19 limited the time within which a defendant, who was served by publication and who had not received the notice required by law, might petition the court to be let in to defend, to three years after the entry of the decree, and the amendment to this section, which went into effect July 1, 1931, cut down this period to one year after the entry of the decree. The statute in effect July 1, 1931, applied to all cases where decrees were entered after that date.

In the instant case the decree was not entered until December 7, 1931, so that by section 19 the right of the defendant to file her petition was limited to one year after the entry of the decree, and the petition not having been filed within that time, the court properly struck it. Moreover, there was no allegation in the petition touching the merits of the controversy, as the statute requires.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Central Mutual Insurance Company, Plaintiff in Error, v. The Employers’ Liability Assurance Corporation, Ltd., of London, England, Defendant in Error.
    Gen. No. 37,303.
    Opinion filed April 30, 1934.
    Heard in the second division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    William: Levine, for plaintiff in error.

      Church, Haft, Robertson, Crowe & Spence, for defendant in error; Burt A. Crowe, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action on a fidelity bond issued by the defendant, claiming that A. H. Karatz, who was secretary and manager of plaintiff insurance company, had abstracted $1,823.66 of plaintiff’s money and converted it to his own use through connivance with Gertrude C. Witzleb, plaintiff’s cashier and bookkeeper. The case seems to have been tried three times; the first trial resulted in a verdict finding the issues for the defendant; a new trial was awarded; on the second trial, on motion of plaintiff, a juror was withdrawn, the cause continued, and the present trial was before the court without a jury; there was a finding and judgment in defendant’s favor, and plaintiff prosecutes this writ of error.

Defendant, by the bond on which plaintiff bases his case, agreed to reimburse plaintiff for pecuniary loss, not exceeding $5,000, which plaintiff might sustain “by an act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or wilful misapplication on the part of Gertrude C. Witzleb, ... directly or through connivance with others, committed by the Employed in connection with the duties of any position to which she may be assigned.”

It appears from the evidence that about July 7,1927, plaintiff, through A. H. Karatz, its secretary and general manager, employed Gertrude 0. Witzleb as its cashier and bookkeeper. She. was subject to the orders and directions of Karatz who was in control and charge of the books of account and funds of the company. Miss Witzleb acted as plaintiff’s cashier and bookkeeper from the time of her employment until she was discharged by the president of the company October 2, 1928. Shortly after she began her work and throughout the whole period she was employed by plaintiff, Karatz from time to time asked her for money, which she kept in a cash box; she would give him the amounts requested and make out an I. O. TJ. and put it in the cash box. She did not enter on the books the fact that she had given the money to Karatz, stating as a reason that she did not want to enter cash when she held I. 0. TJ.’s from Karatz and not the money. She kept the books under Karatz’ supervision. Some of the money she gave to Karatz, he told her, was for expense and from time to time he paid back moneys thus received, and his I. 0. TJ.’s were taken up.

The evidence further shows that plaintiff had a card system for keeping track of the accounts of its customers, on which cards the names and addresses of the customers were entered and payment of premiums noted, which payments Karatz told her he had received. She also wrote on the cards the pages of the cash book purporting to show where such entries were made in the cash book, but which entries were not in fact made. She did not enter the amount of these premiums on the books because, as she testified, she had not received the cash from Karatz. It further appears that she made daily reports to the president of the company in which there was no mention of the claimed receipt of cash as evidenced by the customers’ cards, above mentioned, nor was there any reference made to the fact that she was giving money to Karatz, for which she held his I. 0. TJ. slips. These irregularities were first brought to the attention of plaintiff’s president about October 1, 1928, at which time Miss Witzleb and Karatz were discharged. It was agreed that Karatz ’ shortage amounted to $1,823.66, being the amount for which plaintiff sues.

Plaintiff contends that Karatz stole this amount of money and that he was aided and abetted by Miss Witzleb, and that this constituted a breach of defendant’s bond.

We think the evidence falls short of showing that Karatz stole the money from the plaintiff company, and it is clear that Miss Witzleb did not think he was stealing the money. Karatz was secretary and general manager and she. was under his control. The method of drawing money, as shown by the evidence, was a custom in vogue from the time Miss Witzleb entered upon her duties. We think it clear it cannot be said, as a matter of law, that the claimed shortage of $1,823.66 resulted from a “wrongful abstraction or wilful misapplication on the part-of Gertrude C. Witzleb, . . . directly or through connivance with others.” These were questions of fact. Moreover, so far as the record discloses, it is undisputed that plaintiff insurance company did not contend until suit was brought that Karatz had stolen its money, because on October 1, 1928, after it learned that he had taken the $1,823.66 of plaintiff’s money in the manner above described, plaintiff, Harold Shlensky, its president, and Karatz, its secretary and manager, entered into a written agreement which recited that each had, or claimed to have, demands against the other, and that the parties were desirous of settling all such claims and demands, and it was agreed that plaintiff and its president should forthwith pay $400 to Karatz, the receipt of which was acknowledged, and that plaintiff and its president waived all claims and demands of every kind and character for any indebtedness against Karatz, up to the sum of $1,850; and it was further agreed that if Karatz was found to be indebted to plaintiff in a sum in excess of $1,850, he would give plaintiff his note, due one year after date, guaranteed by T. Karatz, for such excess. It was further agreed that Karatz would not solicit any of plaintiff’s policyholders or members for insurance or bond business for a period of one year, and mutual releases and discharges were further provided for.

It is clear from this agreement that plaintiff and Karatz were settling all their differences and plaintiff not only released the $1,850 which it claimed was due from Karatz to it, but gave him $400 in addition. Plaintiff having by this agreement settled its claim against Karatz for the alleged shortage, obviously has no right of action on the bond in suit.

We are unable to agree with plaintiff’s contention that the facts in the instant case are exactly in point with the facts in Austin v. Nieman (Tex. Civ. App.), 14 S. W. (2d) 794, and Chapman v. Nieman (Tex. Civ. App.), 276 S. W. 302, in which the defendant was held liable on a fidelity bond. In that case suit was brought on a fidelity bond by the commissioner of banking and the First State Bank of Malone, to recover against Nieman as principal, and the Maryland Casualty Co. as surety. The bond secured against loss of money “wrongfully abstracted, or wilfully misapplied by said Nieman,” who was bookkeeper and assistant cashier of the bank. The president of the bank, Lowe, had abstracted and appropriated to his own use $43,000. The court instructed a verdict for the defendant. On appeal the judgment was reversed and the cause remanded, the court holding that the question was one of fact for the jury. (276 S. W. 302, supra.) There was a retrial of the case before the court without a jury and a finding and judgment in favor of the defendants. The court held that whether there was a violation of the bond by Nieman was a question of fact and on appeal the judgment was affirmed. Austin v. Nieman (Tex. Civ. App.), 3 S. W. (2d) 128. On a further appeal the judgments of the Court of Civil Appeals and the trial court were reversed and judgment entered in favor of plaintiff. (14 S. W. [2d] 794, supra.) In that case Lowe, the president of the bank, pleaded guilty to embezzlement of the bank’s funds and was sentenced to the penitentiary, and suit against Nieman was predicated upon the fact that he, as bookkeeper, aided and assisted Lowe in wrongfully converting the bank’s funds by keeping the books, by means of a “dummy” ledger, in such a way as to conceal the shortage.

From what we have said, we think it clear that the facts in the Nieman case are not analogous to the facts in the instant case. In the Nieman case the president of the bank who abstracted the funds was guilty of embezzlement and the bookkeeper and assistant cashier, Nieman, knew the funds were being embezzled over a period of time, kept dummy books, and helped conceal from the bank the fact that the president of the bank was embezzling funds; while in the instant case, there was no such wrongdoing on the part of Miss Witzleb, and the evidence is to the effect that the plaintiff'insurance company, by its written agreement with Karatz, above mentioned, took the position that Karatz had a claim against it for more than the amount of money it now claims he had wrongfully abstracted.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed..

Matchett, P. J., and McSurely, J., concur.


text:
    Northern Trust Company, Appellee, v. Central Life Insurance Company of Illinois, Appellant.
    Gen. No. 37,341.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied and supplemental opinion filed May 14, 1934.
    Stebbins, McKinley & Price and John M. Allen, for appellant; Lewis A. Stebbins, of counsel.
    Hirsch E. Soble, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, the beneficiary in a life insurance policy issued by defendant on the life of Joseph Friedman, brought an action to recover $20,000 claimed to be due it under the terms of the policy. The policy was for $10,000 and there was a rider attached which provided for double indemnity payment of $20,000 under certain circumstances. There seems to have been no contention but that defendant was liable for the face amount of the policy, $10,000, and this phase is out of the case. The only question before the court was whether the defendant was liable for the double indemnity provided for in the rider attached to the policy. The case was tried before the court without a jury on a stipulation' of facts. There was a finding and judgment in plaintiff’s favor for $11,250, and defendant appeals.

It is stipulated that Joseph Friedman, the insured, came to his death accidentally as a result of breathing, while sane, “atmosphere which was full of carbon monoxide gas, which is a deadly poison, emanating from a certain automobile,” and that the sole question for decision is whether or not, as a matter of law, the beneficiary of the policy is entitled to recover upon the double indemnity provision of the policy. The double indemnity rider, after providing that the company would pay $20,000 in lieu of the face amount of the policy upon receipt of due proof of the death of the insured under certain conditions not involved here, contains the following: “This Double Indemnity Benefit shall not be payable if the insured’s death resulted from self-destruction, whether sane or insane; from the taking of poison or inhaling of gas, whether voluntary or otherwise.” The construction of this provision is the one question in controversy.

Defendant’s contention is that since the insured, Joseph Friedman, came to his death by accidentally breathing gas from an automobile, no recovery can be had because the double indemnity provision above quoted expressly states that the double indemnity shall not be payable if the insured’s death results from the “inhaling of gas, whether voluntary or otherwise.”

On the other hand, plaintiff’s position is that the words “the taking of poison or inhaling of gas, whether voluntary or otherwise,” mean “the intentional inhaling of gas, whether sane or insane,” and do not include “the accidental and unknowing breathing of carbon monoxide gas while sane.” A further contention of plaintiff is that regardless of the meaning of the wording of the double indemnity rider, the defendant is liable because at the bottom of the first page of the policy and on the back of it, which is called the' fourth page, the following words were stamped: “with double indemnity benefit from accidental death. ’ ’

We will dispose of plaintiff’s second contention first. A photostatic copy of the policy is in the record. It is a document about 17 inches in length and 11 inches wide. At the bottom of page one the words in question seem to have been placed there by a rubber stamp. And again, the same rubber stamp seems to have been used on what would be the outside or face of the policy when folded. The words are not very conspicuous. Plaintiff’s argument is that these words stamped on the policy as stated, “are controlling and decisive, and defeat defendant’s contention”; that when the policy was presented to the insured he undoubtedly must have understood that he was being insured for double indemnity for accidental death, and therefore these words “should be held virtually to estop it (defendant) from now taking a position inconsistent therewith”; that in case of ambiguity or uncertainty in a policy, the rule of law is to construe it most strongly against the insurance company. While there is some merit in the contention, we think it cannot be sustained. We think an insurance company ought not be permitted to display prominently in a policy the statement that the insured is obtaining certain insurance, and then later on in the policy in small print cut down or explain away such insurance. And while we do not wish to be understood as placing our approval on the use of the rubber stamp on the policy in question in the manner indicated, yet we are of opinion we would not be warranted in eliminating from the double indemnity rider all of the provisions which specifically state that under the conditions named the double indemnity was not payable. The provision of the rider in question expressly states that the double indemnity is not payable if the insured’s death resulted from self-destruction, whether sane or insane, from committing an assault or felony, from war or police duty, from the insured’s engaging in riot or insurrection, or from riding as a passenger in an aeroplane, etc.

If plaintiff’s contention were sustained, the double indemnity would be payable without any exception. We think the policy cannot be given this construction.

The question then is, What is the meaning to be given to the wording of the rider which provides that the double indemnity benefit “shall not be payable if the insured’s death resulted from . . . inhaling of gas, whether voluntary or otherwise”?

As stated, plaintiff’s contention is that recovery can be had since the insured unintentionally inhaled gas. Defendant’s position is that the inhaling of gas “voluntarily or otherwise” means the same as thoug’h the policy read that the double liability would not arise if gas was inhaled by the insured whether voluntarily or involuntarily, — that there was no liability under this policy in case the insured died as the result pf inhaling gas.

Counsel for plaintiff chiefly rely on the cases of Healey v. Mutual Accident Ass’n, 133 Ill. 556; Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642; Metropolitan Accident Ass’n v. Froiland, 161 Ill. 30; Fidelity & Casualty Co. v. Waterman, 161 Ill. 632; Travelers’ Ins. Co. v. Ayers, 217 Ill. 390; while counsel for defendant cites Porter v. Preferred Accident Ins. Co., 95 N. Y. S. (App. Div.) 682; Riley v. Inter-State Business Men’s Accident Ass’n, 184 Iowa 1124; Kennedy v. Aetna Life Ins. Co., 31 Tex. Civ. App. 509; Birss v. Order of United Commercial Travelers of America, 109 Neb. 226; Minner v. Great Western Accident Ass’n, 99 Kan. 575, and other cases.

The wording of the policies in none of the cases cited is the same as the provision in the rider under consideration, and we can come to a better interpretation of the words in question by a reading of them than by analyzing and distinguishing cases, or in any other way. The rider says that the double indemnity benefit shall not be payable if the insured’s death resulted from the “inhaling of gas, whether voluntary or otherwise.” We think this means that if the insured died as a result of inhaling gas, no recovery can be had under the rider. It was intended that there would be no double indemnity if the insured died as a result of inhaling gas, whether inhaled voluntarily or involuntarily. To give to the words the meaning contended for by counsel for plaintiff, the words “or otherwise” would have to be eliminated, and we think we are not warranted in eliminating those two words, but must construe the contract as made by the parties, giving effect to all of it.

Obviously the parties had the right to so contract if they desired. The rider provided that the double indemnity was not payable if the death of the insured resulted from self-destruction, whether sane or insane. The company had a right to insert this provision. It had equally such right to provide that the double indemnity should not be payable in case the insured died from inhaling gas.

In Porter v. Preferred Accident Ins. Co. (supra), 95 N. Y. S. 682, 683, where an accident policy, by express terms, relieved the company from liability from injury caused by the “voluntary or involuntary inhalation of any gas” by the insured, it was held that no recovery could be had where the insured died from the effects of gas accidentally inhaled by him while in a hotel room. The court there said (p. 683): “It must be conceded that an accident insurance company has the right to limit its liability in any reasonable manner; has the right to provide that in no case will it be liable if the death of the insured results from the effects of gas, inhaled voluntarily or involuntarily. We think that was the intention of the parties as indicated by the express language used in the policy in question. The meaning is no different than if the policy provided that the defendant would not be liable if the death of the insured resulted from the effects of dynamite, a railroad accident, or from yellow fever. The words employed in the exemption from liability clause quoted clearly indicate an intention to avoid liability where death is caused by the inhalation of gas. Concededly gas was inhaled by the deceased and such inhalation caused his death. It was not voluntary, but non-liability for the death of the insured by the involuntary as well as by the voluntary inhalation of gas was provided for. The words . . . must mean that, if the death of the insured resulted from the voluntary or involuntary inhalation of gas, no recovery could be had. ’ ’

In the Birss case, supra (109 Neb. 226), the insured in examining the flow of an oil well in attempting to measure the amount of oil in several tanks, became suffocated from inhaling poisonous gas, as a result of which he died. The policy provided that “Benefits . . . shall not cover . . . any death ... resulting from . . . inhaling of gas . . . (voluntary or involuntary, conscious or unconscious) ” and it was held that no recovery could be had.

In the Minner case, supra (99 Kan. 575) an insurance policy provided for two kinds of indemnity, accident and sickness; disability occasioned by gas was classified as sickness. The policy provided, “Disability or loss, fatal or otherwise, caused by or resulting wholly or in part, directly or indirectly, from . . . gas, ... in any manner taken or administered, voluntarily or involuntarily, . . . shall be classified as sickness,” subject to the provisions and conditions contained in the policies. And it was held that no recovery could be had for the death of the insured caused by accidentally and unintentionally breathing illuminating gas.

Healey v. Mutual Accident Ass’n, supra (133Ill.556), cited by plaintiff, was an action on an accident insurance certificate. It was alleged in the declaration that the assured’s death was caused “through external, violent and accidental means, within the intent and meaning of the certificate,” by accidentally taking and drinking poison. The certificate was set out in the declaration. It provided that in case of the insured’s death certain payments would be made to his wife, the beneficiary, if the insured “shall have sustained bodily injuries, received by or through external, violent and accidental means . . . and such injuries alone shall have occasioned death.” A demurrer was sustained to the declaration. The Appellate Court affirmed the judgment, but on appeal to the Supreme Court it was reversed; the court held that the insured came to his death from extreme and violent means as provided in the policy. Obviously this case is not in point.

Travelers’ Ins. Co. v. Dunlap, supra (160 Ill. 642), was an action on an accident policy. The insured came to his death as a result of taking, through mistake, carbolic acid instead of medicine. The policy provided that the company would not be liable where death occurred as a result of taking poison, and it was held that this provision was applicable only where the poison was intentionally taken, and since the evidence showed that the insured unintentionally and accidentally took the poison, recovery was allowed.

To the same effect was the holding in Metropolitan Accident Ass’n v. Froiland, supra (161 Ill. 30).

In Fidelity & Casualty Co. v. Waterman, 161 Ill. 632, suit was brought on an accident insurance policy which insured against death “through external, violent and accidental means.” The policy also contained a provision for a weekly indemnity in case of bodily injury not causing death. The insured was asphyxiated by accidentally inhaling illuminating gas in his hotel room in Aurora. The policy provided: “This insurance does not cover disappearances; nor war risk; nor voluntary exposure to unnecessary danger; nor injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled; nor injuries, fatal or otherwise, received while or in consequence of having been under the influence of or affected by, nor resulting directly or indirectly from, intoxicants, anesthetics, narcotics, sunstroke, freezing, vertigo, sleep-walking, 'fits, hernia, or any disease or bodily infirmity.” The court, after quoting the foregoing provision, analyzed a number of authorities, including Paul v. Travelers’ Ins. Co., 112 N. Y. 472, and in construing the provision above quoted, said (p. 636): “Bead in the lig'ht of the decisions, the words now in question do not mean otherwise than if they explicitly read, ‘poison or anything accidentally or otherwise, consciously and by an act of volition, drawn into the system by inspiration,’ ” and the judgment was affirmed.

In Travelers’ Ins. Co. v. Ayers, supra (217 Ill. 390), it was held that a provision of an insurance policy that the insurance should cover death resulting wholly or partly, directly or indirectly “from any gas or vapor” did not exempt the company from liability for death by asphyxiation caused by the accidental escape of gas into the room and the unconscious inhaling of the gas by the insured while asleep. '

We think none of the cases cited by plaintiff, above referred to, is in point. The provisions of the policies of insurance involved in those cases are not the same as the provision in the policy before us in the instant case. We hold that no recovery can be had under the double indemnity provision of the policy because the insured came to his death as the result of “accidentally inhaling gas,” and in such case liability is expressly exempted.

The judgment of the superior court of Cook county is reversed, but the cause will not be remanded for the reasons stated.

Judgment reversed.

Matchett, P. J., and McSurely, J., concur.

Supplemental Opinion on Petition por Rehearing.

Plaintiff in its petition for a rehearing again argues that the words stamped on the face and back of the policy, viz., “With double indemnity benefit from accidental death,” ought to estop the defendant from.contending that double indemnity was not payable under the. policy.

We are entirely satisfied with what we have said in the opinion in disposing of this contention, except that it may be that the defendant insurance company, in stamping these words on the face and back of the policy, was endeavoring to comply with paragraph 12 of section 1 of the Act regulating the conditions and provisions of life insurance policies. Cahill’s 1933 Statutes, pp. 1650, 1652.

That Act provides that after January 1, 1908, “no policy of life insurance shall be issued or delivered in this State or be issued by a life insurance company organized under the laws of this State, unless the same shall provide the following:” Then follow a number of paragraphs as to what such policy shall contain, and paragraph 12 of that section is as follows: “ (12) Title on the face and on the back of the policy, correctly describing the same.”


author: Mr. Presiding Justice Sullivan

text:
    John D. McNab, Plaintiff in Error, v. Selena Dunsmure, Also Known as Selena McNab, Defendant in Error.
    Gen. No. 36,928.

      Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Robert D. Melick and Fred W. Story, for plaintiff in error.
    Fisher, Boyden, Bell, Boyd & Marshall, for defendant in error; Thomas Hart Fisher, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

October 17, 1921, plaintiff in error, John D. McNab (hereinafter called plaintiff) secured a pro confesso decree of divorce against his wife, Selena Dunsmure, also known as Selena McNab, on the ground of desertion on substituted service made by publication and the mailing of a notice to her under the name of Selena McNab at Butler,.New Jersey. September 26, 1924, pursuant to notice to Fred W. Story, attorney for her husband in the divorce case, defendant, by her counsel, entered her appearance and asked for leave to file her petition, alleging that she had received no notice of the commencement or pendency of the divorce suit against her either by mail, service of summons or by copy of the bill of complaint, and that she had not received any written notice of the entry of the decree of divorce. On the same day, by leave of court, defendant filed her answer denying the allegations of plaintiff’s bill for divorce and an order was entered directing that the decree stand affirmed until further order of the court. October 24, 1924, plaintiff, by his solicitor, entered his special appearance to question the service of notice upon him, and moved to strike defendant’s petition to vacate the decree of divorce and her answer to the bill of complaint from the files. This motion was denied November 7, 1924. The cause was placed on the trial calendar April 5, 1925, and reached for trial June 26, 1925. After hearing the testimony of witnesses produced by defendant the chancellor entered a final decree finding in effect that plaintiff had procured his decree of divorce through fraud and ordered it vacated and annulled and his bill of complaint dismissed for want of equity. Plaintiff filed a bill of review July 7, 1926, to review the decree of June 26,1925. Plaintiff’s motion to default defendant and for a decree pro confesso on his bill of review predicated upon substituted service of process upon, her by publication and the mailing of a copy of the notice to her at her home in New York City, she appearing specially to question such service of process and to object to the jurisdiction of the court, was denied by the court June 12,1931, and the court ordered the bill of review dismissed for want of equity and for want of jurisdiction. It is this order which plaintiff seeks to reverse by this writ of error.

Plaintiff contends that the trial court erred in entering the decree of June 26, 1925, vacating the decree of divorce entered in his favor October 17, 1921, without the personal service of notice upon him; and that, inasmuch as his bill of review stated a cause of action, it was error for the court to dismiss same on its own motion without hearing evidence.

Defendant’s theory is that the court’s action in permitting her to reopen the original divorce proceeding pursuant to and in conformity with section 19 of the Illinois Chancery Act, Cahill’s St. ch. 22, j[ 19, and in vacating plaintiff’s decree of divorce and dismissing his bill for want of equity, was in full accord with the statute and the established law of the State, and that the court was entirely justified in dismissing the bill of review for want of equity and for want of jurisdiction because the bill itself disclosed that the final decree sought to be reviewed was properly entered in the divorce case.

In Johnson Mfg. Co. v. Johnson Skate Co., 266 Ill. App. 130, this court, discussing the question and manner of filing bills of review, at pages 137 and 138, quoted Harrigan v. County of Peoria, 262 Ill. 36, as follows:

“For all practical purposes all bills of review or bills in the nature of bills of review are divided into three general classes: Bills for error appearing on the face of the decree, bills upon discovery of new matter, and bills .based upon allegations of fraud impeaching the original decree. (Story’s Eq. Pl. — 10th ed. — secs. 412, 426; 2 Daniell’s Ch. Pl. & Pr. — 6th Am. ed. — chap. 33, sec. 5; Griggs v. Gear, 3 Gilm. 2; Schaefer v.' Wunderle, 154 Ill. 577.) A bill of review for error apparent upon the face of the record or to impeach a decree for fraud may be filed without leave, but leave of court must be obtained before the filing of a bill of review for newly discovered evidence; and such leave is also necessary where the averment of newly discovered evidence is united to or accompanied by a charge of fraud in obtaining the decree or united with allegations as to errors of law on the face of the record. 2 Beach’s Modern Eq. Pr. sec. 868; 3 Ency. of Pl. & Pr. 586; Glos v. People, 259 Ill. 332; Griggs v. Gear, supra; Schaefer v. Wunderle, supra.

The bill of review filed in this cause is a voluminous document which, with its attached exhibits, comprises 58 pages. It contains some allegations of fraud, apparently abandoned, as they are neither abstracted nor argued in plaintiff’s brief. There is no pretension of newly discovered evidence as a basis for his bill of review. We will, therefore, have to concern ourselves in determining* the questions presented solely with alleged “error appearing on the face of the decree” sought to be reviewed.

Vyverberg v. Vyverberg, 310 Ill. 599, declaring what errors may be considered as on the face of the record, held:

“On a bill of review for errors apparent on the face of the record the court is precluded from an investigation of the evidence, since the decree to be examined in such a case includes only the adjudication, pleadings and the facts as found in the original cause. (Clark v. Waggoner, 283 Ill. 199.) The questions open for examination are such questions as arise on the pleadings, proceedings and decree. (Palenske v. Palenske, 281 Ill. 574.) The question is not whether the facts found in the decree under review are in accordance with the evidence, but whether the court correctly applied the law to the facts found by it. If the findings of the court upon matters of fact are not supported by the evidence, the remedy is by appeal or writ of error and not by a bill of review. (Ebert v. Gerding, 116 Ill. 216.)”

Defendant, protesting that she had received no notice of the commencement or pendency of the divorce proceeding against her either by mail, service of summons or copy of the bill, and that she had not received written notice of the entry of the original decree for divorce, clearly had the right within three years from the date of the decree to petition the court to reopen and vacate same in accordance with section 19, chapter 22, Cahill’s (1923) Revised Statutes of Illinois, which reads as follows:

“When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail, and such person, his heirs, devisees, executor, administrator or other legal representatives, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant. ...”

After service of notice upon Fred W. Story, solicitor for plaintiff in the divorce case, defendant was granted leave to file her petition to vacate the decree of divorce and to file an answer to plaintiff’s bill of complaint. Her answer alleged, in addition to the matters set forth in her petition to vacate, that plaintiff did not at the time he filed his bill, for one year prior thereto, or at any time, have a residence or domicile within the City of Chicago, or at any other place within the State of Illinois, and that she did not at any time desert him, but that by his cruel conduct he compelled her to leave him.

Plaintiff insists that in the progress of certain litigation in the State of New York between the parties to this proceeding defendant was apprised of McNab’s Illinois divorce decree five months after its entry, and that she was, therefore, precluded under the statute quoted from any action to reopen the divorce case or to vacate the decree after the expiration of one year from that time. It is sufficient answer to this contention to state that nothing of this appears on the face of the record in the original divorce proceeding sought to be reviewed, and, therefore, it cannot be considered as such an error as would vitiate the decree of June 26, 1925. In any event, to bring defendant within the one-year limitation the statute specifically provides that she “shall within one year after notice in writing given ... of such decree . . . appear in open court and petition to be heard touching the matter of such decree.” It is not even suggested that she was ever given such notice in writing.

It is strenuously urged that it appears on the face of the record in the divorce proceeding that no notice was served on plaintiff of defendant’s motion to vacate the decree or to place the cause on the trial calendar.

It will be noted that section 19, supra, does not provide for such notice but merely states that the aggrieved party “shall . . . appear in open court and petition to be heard touching the matter of such decree . . . .” However, Justice Breese in passing upon this statute in Bruen v. Bruen, 43 Ill. 408, enunciated, we believe, sound legal doctrine when he said at page 411:

“It is apparent from the terms of this section, that no notice is required to be given to the party obtaining the decree, that a petition will be presented, the only condition appearing to be, the payment of such costs as the court may deem reasonable in that behalf. On general principles, however, we are inclined to think, notice should be given in every case before the rights of a party can be taken away. The time when the notice should be given is not material, so that the opposite party has it before the court acts. The petition may be first filed and then notice given afterward. ’ ’

We are of the opinion that formal personal notice of defendant’s motion to vacate the decree was not essential if it sufficiently appears from the face of the record that plaintiff had in fact received notice of the pendency of the motion to vacate.

Under the recognized authorities the service- of notice of the motion to vacate accompanied by a copy of the petition and affidavit in support thereof almost three years after the entry of the decree of divorce on attorney Story, who represented plaintiff in the divorce proceeding, was not of itself sufficient notice to plaintiff to divest him of his rights. While Story appeared in open court and announced that he no longer represented plaintiff, we find him, however, present in plaintiff’s behalf in practically every stage of the litigation between these parties, both in New York and Chicago, from February 18, 1920, when the original bill for divorce was filed,.until the present time. Notwithstanding Story’s vigorous protest that he no longer represented plaintiff when the notice of the petition to vacate the decree was served upon bim, he appeared as one of plaintiff’s solicitors in filing the instant bill of review and he appears here prosecuting this writ of error. Apart from and in addition to the notice served on Story the record shows definitely that plaintiff had actual notice of the petition to vacate the divorce decree. He filed his special appearance by Meyer W. Bosin, Ms attorney, and made a motion October 24, 1924, to strike defendant’s petition to vacate and her answer to his bill of complaint from the files. Again we find Story in the case with a four-page affidavit in support of plaintiff’s motion. After tMs motion was denied by the court November 7, 1924, as far as the record shows the cause was abandoned by plaintiff. Inasmuch as more than eight months intervened between the date last mentioned and June 6, 1925, when the decree was entered vacating his divorce decree and dismissing his bill of complaint, plaintiff was afforded ample time to contest the petition to vacate on its merits if he had seen fit to do so. The filing of the special appearance by Mm conclusively evidenced the fact that he had notice and knowledge of the pendency of the petition to vacate and of defendant’s answer, and, in our opinion, it matters not whether he received such knowledge through Story or some other source.

Instead of it appearing from the face of the record that plaintiff had no notice of the petition to vacate, we are constrained to hold that the record shows conclusively that he had notice of the petition to vacate the decree and defendant’s answer to his bill of complaint in the divorce proceedings. Befusing1 to file his general appearance, plaintiff cannot predicate error on defendant’s failure to serve him with notice to place the case on the trial calendar. In our opimon the chancellor was fully warranted in vacating the decree of divorce and dismissing the bill of complaint on the ground that the entire proceeding was conceived in and permeated with fraud.

The chancellor found in the decree of June 26, 1925, inter alia, that plaintiff’s name was not John McNab, the name under which he filed his bill for divorce, but that it was John Dunsmure McNab; that both he and his wife since their marriage were invariably known as John and Selena Dunsmure; that defendant never received notice of the pendency of the divorce action mailed to her under the name of Selena McNab, Butler, New Jersey; that plaintiff had boasted he had “put it over” on defendant by failing to give her legal and proper notice; that plaintiff was not at the time he filed his bill for divorce and never was a resident of the State of Illinois; and that defendant did not desert plaintiff as alleged in his bill and found in the original decree.

Plaintiff prosecuted his divorce action when Ms wife was not present to defend herself. When she filed her petition to vacate the decree of divorce and her answer to his bill of complaint the record discloses that he had full knowledge that the cause was at issue on its merits and that he avoided the hearing. After the final decree was entered vacating his decree of divorce no appeal or writ of error was taken or prosecuted to review it.

Proceedings concerning the marital difficulties of these parties have engaged the time and attention of the courts of New York and Illinois over a period of more than 14 years, and the time has arrived when this litigation should be effectively terminated. We are of the opinion that the trial court had no alternative but to vacate the decree of divorce and that plaintiff’s contention that a cause of action was presented by his bill of review is without merit.

Other points have been urged, but in the view we take of this cause we do not deem it necessary to discuss them.

No error appearing on the face of the original record, the trial court was entirely justified in dismissing the bill of review.

For the reasons indicated the decree or order dismissing the bill of review is affirmed.

Affirmed.

Gridley and Scanlan, JJ., concur.


text:
    Knowles Foundry and Machine Company, Appellant, v. The National Plate Glass Company, Appellee.
    Gen. No. 36,992.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Rehearing denied and additional opinion filed May 16, 1934.
    Eckert & Peterson and Chilton P. Wilson, for appellant.
    Taylor, Miller, Busch & Boyden, for appellee; Francis X. Busch, James J. Magner and Stephen A. Mitchell, of counsel
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Plaintiff, Knowles Foundry and Machine Company, sued defendant, National Plate Glass Company, to recover profits it alleged it would have realized if defendant had performed its contract. To plaintiff’s amended declaration, as amended, defendant filed a general demurrer which was sustained by the court and, plaintiff electing to abide by its amended declaration, as amended, its suit was dismissed and judgment entered against it for costs.

Plaintiff’s amended declaration alleged that May 21, 1929, it entered into the following contract with defendant : (Pertinent portions only are set forth.)

“That: The Knowles Foundry and Machine Company shall supply to the National Plate Glass Company, at their plant in the City of Ottawa, State of Illinois, their entire requirement of Runner Bars for the Federal Division for a-period of two years beginning with the date of first delivery: That these Runners comprise substantially eliptical plates having lugs on one side to form a grinding face and having three • ears on the other side for mounting. That these Runners shall be of Grey Cast Iron. That the grinding face shall be machined to a plane surface. That the ears shall be drilled to one and three-quarter inches bore and have their outer faces machined. That these Runner Bars are of two sizes, the larger being approximately 60%" in the long diameter and 52%" in the short diameter; the smaller Runner being approximately 48%" in the long diameter and 41" in the short diameter. That the requirements above referred to are three large and seven small Runners, or approximately 10,900 pounds a day.
“That the National Plate Glass Company shall pay to the Knowles Foundry & Machine Company for the above mentioned Runner Bars at the rate of Ninety-Five Dollars per net ton, finished machined castings, F. O. B. cars at the plant of the National Plate Glass Company, Ottawa, Illinois, in carload lots.
“The above price is based on #2 Pig Iron at $20.00 per ton, Chicago, Ill., and is subject to revision each six months on the same basis, to-wit: If #2 Pig Iron drops to $19.00 the price of Bunners shall be $94.00.
“It is further agreed that the Knowles Foundry & Machine Company shall accept the return of scrap from the above Bunners at $13.50 per ton.
“It is agreed that delivery of Bunners under the above agreement shall begin approximately sixty days from the date hereof.” (Italics ours.)

The- amended declaration averred that at the time of the execution of the contract defendant had practically completed the erection and construction of its new plant known as the “Federal Division”; that runner bars were a vital and necessary operating requirement of its plant and that plate glass could not be completely manufactured without them; that, upon the execution of the contract, plaintiff enlarged its plant, installed the necessary machinery and purchased the necessary equipment, at a cost of approximately $45,000, for the purpose of creating sufficient capacity to produce, machine and deliver the daily tonnage requirements of defendant as" set forth in the contract; that plaintiff did all things that were necessary to supply the material and tonnage as required by defendant in the contract and delivered a large quantity of material in accordance with same; that, after the enlargement of its plant and the installation of the necessary machinery and equipment, it added to its operating personnel preparatory to manufacturing and delivering three large and seven small runner bars daily on and after July 21, 1929, and that it was ready to produce, machine and deliver same on July 21, 1929; that the year, as known in the business and trade of manufacturing glass in which defendant was engaged, consisted of 363 days and a further allowance of not to exceed 30 days for possible shut-down for repairs.

It further alleged that defendant failed and refused to take the material in the quantity and tonnage as specified in the contract, and thereby deprived plaintiff of the profit which it would have earned had it been allowed to produce and deliver to defendant the quantity of material defendant agreed to take; that, under the terms of the agreement, defendant was to take and pay for approximately 10,900 pounds of the material a day as specified in the contract, delivery to defendant to begin about July 21, 1929; that plaintiff was at all times ready and willing to deliver the material in the specified tonnage, but defendant refused to order from plaintiff and accept deliveries under the contract until on or about October 22, 1929, when it did accept delivery of one carload, and October 31$ 1929, when it accepted delivery of another carload; that defendant did not order or’take any tonnage for the months of July, August, September, November and December, 1929; and that for the period from July 21, 1929, to December 21,1929, defendant was delinquent in ordering and accepting delivery of 707.30 tons of runner bars in accordance with the terms of the contract.

It is also alleged that for the year 1930 defendant ordered and accepted delivery of 939.20 tons and failed to order 959.20 tons; that for the seven months ending July 21, 1931, defendant ordered and accepted delivery of 839.72 tons and failed to order 267.68 tons, resulting in a total accumulative delinquency on the part of defendant for the two years covered by the contract of 1,934.18 tons; that, under the terms of the contract, it was entitled to the rate of $95 a ton for the material to be supplied during the life of the contract, subject to adjustment for price changes in the “#2 Pig Iron” market; that it invoiced all material delivered during 1929 and the first seven months of 1930 at $95 a ton, and at the rate of $93 a ton for deliveries made during the months of August and September, 1930, which price change was based on a price reduction in #2 pig iron; that thereafter the material delivered was invoiced at $85 a ton, which price was a special concession and not entirely based on the #2 pig iron market; that if defendant had taken the tonnage specified in the contract, it would have been required to take 3,796.80 tons during the two years ending July 21, 1931, and would have been required to pay plaintiff $344,243.20; that it refused to take 1,934.18 tons as provided in the agreement and pay the agreed price of $178,159.08 therefor; that plaintiff expended a large sum of money and incurred debts in enlarging1 and equipping its plant to produce, machine and deliver the material specified in the contract in definite quantities daily for the period of two years; and that the failure of defendant to accept and pay for such material in the daily quantity as specified deprived plaintiff of its profits to the extent of $98,168.74.

Plaintiff contends that, under the contract, defendant was required to take and pay for “three large and seven small Eunner Bars or approximately 10,900 pounds a day” for a period of two years.

Defendant’s theory is that the contract entered into by the parties, and set forth in the amended declaration, is a pure requirement contract, and that, inasmuch as the amended declaration and the amendment thereto fail to show that defendant did not take all of its runner requirements from plaintiff, no breach of the contract is alleged.

The question, therefore, is squarely presented as to whether under a proper construction the contract is determined to be for requirements only or for a specific quantity of runner bars daily for two years.

Def endant insists that when the parties stated in the contract that “The Knowles Foundry and Machine Company shall supply to the National Plate Class Company . . . their entire requirement of Burner Bars for the Federal Division for a period of two years beginning with the date of first delivery,” they clearly expressed their intention of entering into a pure requirements contract; that, regardless of any other provisions of the contract, this language was controlling and declared the major measure of its obligation ; that these were the “determinative words” of the agreement and stated the “obviously dominant measure” of the quantity of runner bars defendant must order from plaintiff; and that any other reference to the quantity of material covered by the contract is nothing more than an approximation or estimate of its anticipated needs or requirements of runner bars and is entirely subordinate to the above provision.

Plaintiff just as strenuously insists that the subsequent provision “That the requirements above referred to are three large and seven small Runners or approximately 10,900 pounds a day,” is controlling and definitely fixes the quantity of “runners” plaintiff was required to manufacture and deliver, and defendant agreed to order, accept and pay for, and that the parties contemplated by the contract to specifically define defendant’s requirements over the period embraced by their agreement.

Defendant at various points in its brief, inadvertently, we are satisfied, and with no intention to confuse the issue, uses the word “approximately” in connection with the quantity of runner bars mentioned in the contract. The parties did not use the word “approximately” in connection with the number of bars specified, but only with reference to the size of same and the combined weight of three large and seven small runners.

All of the material allegations of the amended declaration and the amendment thereto that are well pleaded are, of course, admitted by defendant’s demurrer. Defendant had under construction near Ottawa, Illinois, a large glass plant costing several million dollars. When it entered into the contract with plaintiff May 21,1929, it anticipated that its plant would be ready for occupancy and operation in approximately 60 days. Plate glass could not be completely manufactured without runner bars and it was essential that an adequate supply of same be insured for the opening and continued operation of its plant. It is only reasonable to infer that it desired to operate its plant as near to capacity as possible and that its engineers in determining the quantity of runner bars required took into consideration not only defendant’s plant capacity, but also the wear and tear on the grinding surfaces of the runners. The number of runner bars needed in its business would necessarily have to be determined by defendant, and in reaching its agreement with plaintiff as to the price of the runners it may also be inferred that the price agreed upon in the contract was based on quantity production and defendant’s needs as specified by it.

To be prepared to supply “three large and seven small Bunners a day” plaintiff enlarged its plant, purchased additional equipment and machinery and added to its personnel at a cost of approximately $45,000. Some reasons are suggested, but it does not definitely appear in the record why defendant did not order and accept the three large and seven small runners daily.

In many of the authorities cited where “approximately,” “about,” “more or less,” or words of similar import are used, the courts make the pertinent observation that if the parties to the contracts under consideration intended to specify definite quantities it would have been an easy matter for them to have done so. In the instant case, after stating that plaintiff was to furnish defendant with its “entire requirement” of runner bars, the contract specifically and with certainty provided “that the requirements above referred to are three large and seven small runners or approximately 10,900 pounds a day.” The word “approximately” appears three times in this contract but it does not appear in connection with the quantity of the product ordered.

It is urged, nevertheless, that the parties intended the definite quantity specified as merely an estimate of defendant’s requirements, but under every rule of construction, with which we are familiar, the intention of the parties is to be gleaned from the language used by them and not from their later contentions that they meant something other than what they plainly stated in unmistakable terms. In our opinion the language of this contract is susceptible of only one reasonable construction. We have heretofore stated the respective positions of the parties at the time the contract was executed. Defendant needed certain quantities of plaintiff’s manufactured product as calculated, ostensibly, by its engineers. Plaintiff was obliged at great expense to enlarge its facilities to meet its definite obligations under the contract. This is not a case where the contract was loosely or inaptly drawn. The earlier provision “entire requirement” was neither inadvertently nor carelessly overlooked, but appears to have been clearly in the minds of the parties when they specifically defined it with the subsequent dominant quantity provision “that the requirements above referred to are three large and seven small Banners ... a day.”

Various rules of construction are called to our attention to enable us to discharge our duty in properly interpreting the language of the contract declared upon. All of these rules are predicated upon the ascertainment of the intention of the parties to the instrument construed. Such intention must be determined from the language employed when read in the light of the context of the instrument, the respective positions of the contracting parties, and such surrounding circumstances as will aid the court in arriving at their true intent and meaning. (Druecker v. McLaughlin, 235 Ill. 367; Goodwillie Co. v. Commonwealth Electric Co., 241 Ill. 42; Geithman v. Eichler, 265 Ill. 579.)

However, we deem it unnecessary to resort to any rule except the elementary one dictated by common sense and reason, viz., that the parties meant what they said. They said “entire requirements” and then stipulated “the requirements above referred to are three large and seven small Runners ... a day.” No authority has been cited where the court was called upon to construe a contract as one for requirements only because of claimed ambiguity or uncertainty as to its terms where the contract was as definite and certain as to the quantity contracted for as the one in the case at bar.

Where the engagement is to furnish goods of a certain quality or character to a certain amount the quantity specified is material and governs the contract. (Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622.) Our attention has been called to no authority and we have been unable to find one after diligent search that declares a contrary doctrine.

A careful study of all the authorities cited by opposing counsel discloses that each was decided in reference to the particular contract involved or, as stated by Mr. Justice Holmes in Smoot v. United States, 237 U. S. 38, 59 L. Ed. 829, upon a consideration of the “obviously dominant measure of quantity” in each contract. (Louisville Soap Co. v. Taylor, 279 Fed. 470.)

Several pure requirement cases have been cited where there was no other specification as to the quantity to be sold and taken. It is readily apparent that the purchaser under such a contract fulfills its obligation when it takes the amount of the seller’s product it needs or requires in its business for the purpose or over the period stated. These cases have no application to the situation presented here.

Defendant in support of its contentions cites a line of cases including Brawley v. United States, supra; Smoot v. United States, supra; Cragin Products Co. v. Fitch, 6 F. (2d) 557; Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673; and Lincoln Mining Co. v. Board of Education, 212 Ill. App. 586.

The Brawley case has been almost universally followed-where the contract provided for the purchase of requirements coupled with the qualifying words “approximately,” “more or less,” or expressions of like import. The contract in that case provided for the furnishing of 880' cords of wood, “more or less, as shall be determined to be necessary by the post commander” of a certain army post. The post commander determined that only 40 cords were needed and refused to take more. The Supreme Court of the United States held that “as shall be determined to be necessary by the post commander” were the determinative words of the contract and the quantity designated, 880 cords “more or less,” must be regarded merely as an estimate of what the officer making the contract at the time supposed might be required.

In the Smoot case the United States entered into a contract with Smoot whereby he was to furnish 140,200 cu. yds., “more or less,” of filter sand to fill certain filter basins. Justice Holmes, in the opinion in this case, held that what sand was needed for the construction of the filtration plant was the “obviously dominant measure” of the sand to be furnished, and that the figures were a mere estimate.

In the Fitch case the contract provided for the purchase and sale of “approximately 1800 barrels of . . . alcohol . . . being your estimated consumption of this formula during one year from date. All of your supplies of this formula to be furnished by (seller).” This was held to be a sale of buyer’s requirements and not one of absolute sale of 1800 barrels.

In the Mathiesen Alkali Works case, the alkali works agreed to buy and pay for, and the coal company agreed to sell and deliver, during the term of 10 years, the annual requirements of coal of the alkali works, “estimated approximately at 200,000 tons a year.” The court held that the quantity provision was a “requirement clause” and not a tonnage clause.

In the Lincoln Mining Co. case, that company submitted a bid and was awarded a contract to furnish coal to the Illinois State Normal University for the year ending August 31, 1917, “about 2,000' tons of screenings” and “about 100 tons lump coal.” This was held to be a requirements contract, the figures being merely an estimate.

In every one of the above cases the contract provided for the furnishing of requirements for a stated period or for a stated purpose, coupled with or followed by an estimate, “about,” “approximately,” “more or less,” or an expression of similar meaning, and the United States Supreme Court and the other reviewing courts deciding those cases, sensibly and reasonably held that the 61 requirements ’ ’ clause would have to be regarded as the determinative or dominant measure of the quantity contracted for, and the quantity mentioned as merely an estimate.

There is, however, another class of cases where the contract covers requirements coupled with or followed by a stipulation for a definite minimum and maximum quantity. There is practical unanimity in this class of cases in holding that the definite minimum and maximum quantity specified in the contract dominates and controls the requirement clause, to the extent that.the seller is required to deliver to the buyer up to the maximum but not beyond it, and the buyer is required to take at least the minimum whether he needs it in his business or not.

In Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, the can company agreed March 11, 1916, to sell, and the paint company agreed to purchase, “a minimum of $2,000 worth of tin packages or more, as required by them (as priced and described) which buyers will need for actual use in their business between the date hereof and April 1, 1917.” Prior to February 19,1917, the paint company ordered, and the can company delivered, $5,937.95 worth of tin packages. During the period covered by the contract the price of tin packages had nearly doubled and in the last seven weeks of the term of the contract the paint company ordered $6,404.75 worth of additional tin packages at the price quoted in the contract, which the can company refused to deliver on the ground that they were not actually needed in the paint company’s business. Our Supreme Court held that under the contract the paint company was obliged to accept and pay for at least $2,000 worth of the packages, and the can company was obliged to furnish as many more tin packages as were actually needed in the paint company’s business before April 1, 1917, but not in excess of its actual needs.

The contract in Staver Carriage Co. v. Park Steel Co., 220 Ill. 412, provided for “all the tire steel of good and suitable quality which will be used in buyer’s works prior to September 1, 1899, not to exceed 14,000 sets nor to be less than 10,000 sets.” The carriage company placed orders for the maximum 14,000 tire sets, but the steel company, after delivering 10,600 sets, refused to deliver more, insisting that it had supplied the carriage company’s legitimate needs. At p. 416 of its opinion, our Supreme Court said:

“By the contract the defendant was bound to take as much as 10,000 sets whether it could use them in the factory or not, and it was only entitled to 14,000 sets in any event, but between these limits it was the purpose of the contract to enable the defendant to provide a supply of tire steel for its factory and business. The construction given to the contract by the Appellate Court would require defendant to use up a part or all of the stock on hand at the beginning of the contract and not replace it, and to leave the bins empty when the contract expired. That construction seems to us too narrow and not according to the intention of the parties.”

In Bloomington Canning Co. v. Union Can Co., 94 Ill. App. 62, the contract specified: “Your season’s requirement of cans, approximately as follows: 2% million 2 pound cans with 1%" opening; % million 3 pound cans with 2" opening, etc.” The seller delivered 2,872,872 of the small size cans and 475,189 of the larger size. The purchaser sued the seller claiming that this was a pure requirements contract; that the amounts specified meant nothing; that its requirements for the season were 3,389,952 small cans and 762,437 large cans; and that the seller was liable to respond in damages for its failure to deliver the purchaser’s full requirements.

It will be noted that the provision of the above contract as to quantity is not nearly as definite as in the contract in the instant case and even “approximately” is used in connection with the designated quantity, but the court in holding that the approximate quantities mentioned in the contract were definite máximums beyond which the can company could not be forced to go used this language at pp. 65 and 67:

“We think the inferences proper to be drawn from the nature and terms of the contract itself, and its subject-matter, are quite sufficient of themselves by which to find the intention of the parties, without the aid of extrinsic proof, and the case therefore rests upon the proper construction of the contract, to be made by inspection of its terms, a consideration of its subject-matter, and the reasonable and natural inferences to be drawn therefrom of the situation and circumstances surrounding the parties at the time it was made. . . .
“The acceptance of the construction of the contract insisted upon by counsel for appellant, that the phrase, ‘your season’s requirements of cans’ should be taken as the governing words, would result in the rejection of the clauses limiting the number of cans approximately, as surplusage or meaningless. This, we have said, should not be done without a plain necessity, or to prevent a defeat of the objects the contract was designed to attain. If the parties meant by the contract that the season’s requirements of cans should alone be determined by the plaintiff at a future time, and the quantity limited by its will, then the added clauses of approximate quantities were superfluous and useless, and the commonest tenets of construction would thus be violated, by rejecting them.”
It is urged upon the part of the glass company that if the number of runners specified in this contract should be held to be the measure of the quantity to be furnished thereunder, it would take all of the meaning out of the provision of the contract with reference to that company’s “entire requirement.” It was not left for us to qualify the requirements provision. Defendant itself did that when it agreed that “the requirements above referred to are three large and seven small Runners ... a day.”

Marx v. American Malting Co., 169 Fed. 582, and many other cases have been cited and discussed in the briefs of the parties on the general subject of requirement contracts. Suffice it to say we have carefully examined and considered all of them, but are of the opinion that a discussion of them would serve no useful purpose and would only further lengthen this opinion. We are constrained to hold that plaintiff’s amended declaration, with the amendment thereto, stated a good cause of action on the contract without alleging that defendant had failed to take its ‘ entire requirement” of runner bars for the two years covered by the contract.

For the reasons indicated the judgment of the superior court is reversed and the cause remanded with directions to overrule defendant’s demurrer to plaintiff’s amended declaration and the amendment thereto.

Reversed and remanded, with directions.

Gridley and Scanlan, JJ., concur.

Additional Opinion Upon Petition for Rehearing.

In a petition filed for rehearing in this cause it is suggested that the trial court should not be foreclosed from reaching a conclusion different from that reached by us as to the construction of the contract involved, if such conclusion is reasonably and logically justified by all of the evidence received upon the trial.

Our conclusion is predicated upon the' pleadings only, and we are not holding that, upon a trial, evidence may not be presented to show that another and different interpretation was given to the contract by the parties themselves. That question was not presented for our determination on this appeal.

It is urged that this court overlooked or did not grasp the meaning, grammatical effect and the punctuation of the following sentence of the contract: ‘1 That the requirements above referred to are' three large and seven small runners, or approximately 10,900 pounds a day.” Counsel for defendant state that “or” is a “disjunctive conjunction” used “to usher in the second of two alternatives ’ ’; that it imports a choice between two alternatives, and, as ordinarily used, means one or the other of two, but not both; that the clause “approximately 10,900 pounds a day” following the disjunctive conjunction “or,” modifies the word “requirements,” appearing in the same sentence; and that given a proper interpretation defendant had the right to read the sentence, “the requirements above referred to . . . approximately 10,900 pounds a day.”

The construction of this sentence suggested by defendant is forced and strained, and read in the light of the text of the entire contract is not a reasonable one. The significance sought to be attached to the word “or” is illogical and unreasonable. The significance of “or,” and the above mentioned clause, must have escaped the attention of and been overlooked by counsel up to now, inasmuch as the petition for rehearing contained the first intimation in this cause that any such interpretation of this clause of the contract was contended for. It has seemed to us, and so continues to seem, that “or approximately 10,900 pounds a day,” means and was intended by the parties to mean the estimated weight of three large and seven small runner bars.

After a careful consideration of the petition for a rehearing we are of the opinion that the contentions made therein are without merit, and the petition for a rehearing is denied.

Petition for rehearing denied.

Gridley and Scanlan, JJ., concur.