author: Mr. Presiding Justice Stone

text:
    Jo V. Walker and Jane Walker, Appellees, v. Illinois Commercial Telephone Company, Appellant, and David Norriss, Defendant.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Rehearing denied September 9, 1942.
    E. E. Denison, of Marion, for appellant.
    R. T. Cook and Charles C. Murrah, both of Herrin, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion, of the court.

At about 1:30 o’clock in the afternoon of May 20, 1940, there was a collision between an automobile driven by Jo V. Walker, in which his wife, Jane Walker, was a passenger, both plaintiffs appellees herein, and who will be hereinafter referred to as plaintiffs, and an automobile driven by David Norriss, a defendant, who did not prosecute an appeal to this court. The collision occurred on North Court street, in Marion, Illinois, which street runs in a northerly and southerly direction and is 24 feet 6 inches wide. State Route No. 37 runs through Marion on said street, and there are “stop” signs on said street where it intersects West White street, which runs in an easterly and westerly direction. Just a few minutes prior to the accident, six men in the employ of the Illinois Commercial Telephone Company, who is defendant appellant in this court, and who will hereinafter be referred to .as defendant company, drove into North Court street, with a Chevrolet truck, property of defendant company, to which was attached a trailer, on which a telephone pole was loaded. The truck was approximately 17 feet long, the tongue of the trailer was approximately 10 feet long, the bolster of the trailer, not including the tongue, was approximately 7 feet long, which would make the front end of the truck 34 feet from the back end of the trailer. The cab of the truck was about 5 feet high. The pole 30 feet long extended 13 feet over the back end of the trailer. A pole, which was set about a foot from the curbing on the east side of North Court street, had deteriorated, and this crew of six men intended to replace the old pole with the new one. The truck and trailer was parked near the east curb of North Court street, facing north, near an Illinois highway sign marked “37,” with a “No Parking” sign under it. The truck seems to have been parked far enough north of these signs, so the pole would not hit them, when rolled off of the trailer. Various witnesses who testified, estimated the end of the trailer to have been from 5 or 6 feet to 12 feet from the intersection.

One of defendants in the lower court, David Norriss, driving his automobile west on West White street stopped at the “Stop” sign, at North Court street, could not see cars approaching on that street, because of a commercial sign in the yard, near the “Stop” sign, so drove his car until the front wheels of said car were at the curb of North Court street. Called as a witness for plaintiffs, he claimed that he could not see plaintiffs’ car being driven south on North Court street, because of the truck of defendant company parked near the curb, and that his car was not being driven faster than one or two miles an hour, when it collided with plaintiffs’ car. As a result of said collision, the car of plaintiff, Jo Y. Walker, was damaged, and plaintiff, Jane Walker, was injured.

Suit was brought in the circuit court of Williamson county, against both David Norriss, and the Illinois Commercial Telephone Company, trial was had before the court without a jury. The court found defendants guilty, and judgment was entered in favor of Jo Y. Y7alker, in the sum of $251.67, and in favor of Jane Walker in the sum of $1,500, from which judgment defendant, Illinois Commercial Telephone Company, prosecutes its appeal. Defendant, David Norriss, was defaulted, appeared on the trial as a witness for plaintiffs, and took no appeal.

The complaint consisted of six counts. By counts 1, 2 and 5, it was charged that plaintiff, Jo Y. Walker, suffered damages to his automobile, because of the joint acts of negligence of defendants. Counts 3, 4 and 6 were counts in which it was alleged that plaintiff, Jane Walker suffered injuries to her person by reason of the joint acts of negligence of defendants. The several acts of negligence charged against defendant, Illihois Commercial Telephone Company, in the several counts were as follows:

1. Violation of sec. 187, subpar. 6, ck. 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.219], by parking its truck within 20 feet of a crosswalk at an intersection and thereby obstructing the view;

2. Violation of sec. 187, subpar. 14, by parking its truck at a place where official signs prohibited stopping;

3. Common law negligence.

It is the theory of plaintiff, that the violation of the statute by defendant, Illinois Commercial Telephone Company, and its negligence in obstructing, by its truck and trailer, the view of traffic coming from the north, and that the obstructed view, coupled with the negligence of defendant, Norriss, in driving his car into North Court street, when his view was obstructed, was the proximate and direct cause of the accident.

Principal errors relied upon for reversal by defendant are, the refusal of the court to admit proper evidence offered by defendant, which were in the nature of experiments under conditions alleged to be substantially the same as existed at the time of the accident, bearing on the question of visibility; denial of the motion of defendant, to find it not guilty, at the close of plaintiffs’ testimony and again at the close of all the evidence; and therein particularly because there was a failure on part of plaintiffs to affirmatively show that plaintiffs were in the exercise of ordinary care for their own safety, at the time of the collision; error in refusing to grant a new trial; error in refusing to grant a motion in arrest of judgment, and the allowance of excessive damages in favor of plaintiff, Jane Walker.

The error assigned that the court erred in denying the motion of defendant company to find it not guilty as to each count of the complaint at the close of plaintiff’s evidence, presents the question whether there is in the record sufficient evidence of due care on the part of plaintiffs to support the verdict and judgment. The complaint contained no charge of wilful or wanton conduct on the part of' defendant company. Plaintiffs therefore had the burden of affirmatively showing that they were in the exercise of due care and caution; plaintiff Jo V. Walker, for his automobile and plaintiff, Jane Walker, for her own safety at the time of the accident. Crawford v. Cahalan, 259 Ill. App. 14; Hogrefe v. Johnson, 271 Ill. App. 469; Hand v. Greathouse, 294 Ill. App. 383; Moore v. Illinois Power & Light Corp., 286 Ill. App. 445; Pollard v. Broadway Cent. Hotel Corp., 269 Ill. App. 77; Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; Urban v. Pere Marquette R. Co., 266 Ill. App. 152; Dee v. City of Peru, 343 Ill. 36.

Insofar as the obligation of plaintiff, Jo V. Walker was concerned, to use due care, the dictates of common prudence require that a motor vehicle driver, approaching a street intersection shall be observant to determine the presence of other vehicles at or near the intersection. All reasonable minds will agree that a driver thus approaching such a.n intersection, especially where it is known to him to be a busy corner, who fails to look as he approaches to ascertain whether there are other cars in proximity is guilty of a want of ordinary care. Kirchoff v. Van Scoy, 301 Ill. App. 366; Wodecki v. Harold M. Pitman Co., 286 Ill. App. 610 (Abst.). Particularly, it is his duty in approaching an intersecting street where the view is obstructed to keep a vigilant outlook in order to be in the exercise of due care. Blashfield Cyc. of Automobile Law, Vol. 2, p. 241, sec. 1041; Poulan v. Deas, 18 La. App. 256; 138 So. 230; Moore v. Fitzpatrick (Mo. App.) 31 S. W. (2d) 590; Dauber v. Josephson, 209 Mo. App. 531, 237 S. W. 149.

With reference to the duty of plaintiff, Jane Walker to use due care for her safety, it has been repeatedly held that it is the duty of a passenger in a vehicle where she has an opportunity to learn of danger and to avoid it, to warn the driver of such approaching danger and she has no right because some one else is driving, to omit reasonable and prudent efforts on her own part to avoid danger. Habenstreit v. City of Belleville, 302 Ill. App. 383; Willgeroth v. Maddox, 281 Ill. App. 480; Scruggs v. Baltimore & O. R. Co., 287 Ill. App. 310; McDermott v. McKeown Transp. Co., 263 Ill. App. 325; Jones v. Traver, 275 Ill. App. 181; Price v. Chicago & E. I. Ry. Co., 270 Ill. App. 111; Mabel v. Cleveland, C., C. & St. L. R. Co., 264 Ill. App. 532.

When there is any evidence before the court which, taken with its reasonable inferences in its aspect most favorable to the plaintiff, tends to show the use of due care, the question of due care is one of fact. Whether there is any such evidence is a question of law. Pienta v. Chicago City Ry. Co., 284 Ill. 246.

Applying this rule to the record before us, it appears, according to the testimony of plaintiff Jo V. Walker that he was driving about 20 miles an hour at the time of the collision, that he saw the telephone truck parked there, but did not see defendant Nor-riss’ car until “it looked to me like it was right up in my face.” Witness was asked this question on direct examination by counsel, “I will ask you to state whether or not you looked in both directions for traffic on West White Street,” to which question plaintiff answered, “I was just using ordinary care in driving. I saw the telephone truck parked there and naturally I did slow down some because of that and the congestion there.” While the question was leading and suggestive, no objection was made by opposing counsel. The answer, of course, was not responsive to the question, and a mere conclusion. It is true, as argued by counsel for plaintiff, there was no objection to the answer, but the answer still does nót shed any light on the vital question of due care on the part of plaintiff, which must appear affirmatively, in order for him to recover. It is contended on his behalf, that because he testified that he saw the truck parked there, that it must necessarily follow that hd looked to his left, to ascertain if there was any traffic coming into Court street, from West White street. There is nothing in this record indicating when he saw the truck, he might well have seen it ahead of him, as he was driving south on Court street, approaching the intersection, for there appears to be nothing that would obstruct his view of the truck, in front of him, as he drove south. Defendant, David Norriss, testified that he was driving his car into Court street, at from one to two miles an hour, which would mean that the Norriss car was barely moving, so had plaintiff looked, he would have had no difficulty in seeing the Norriss car, when it so slowly moved into Court street.

On the question of the contributory negligence of plaintiff Jo Y. Walker, it is significant that defendant David Norriss, who testified for plaintiffs, said, “I shouldn’t have been going more than a mile or two an hour; I went 15 or 20 feet when I saw him coming around the truck.” Plaintiff could hardly have been coming around the truck, if he had not have been fairly well over on the left side of the street, for all of the evidence is to the effect that the truck was stopped close to the curb, so that the new telephone pole might be conveniently unloaded. And if he was toward the left side of the highway, it would make it more difficult for him to see a car coming into the street from West White street, not alone on account of the truck of defendant company, but the commercial sign on the lawn. In that regard, on motion to find for defendant, at the close of all of the evidence, it should have been considered that Walter Fraley, one of the telephone crew, a witness for defendant, testified that he had gotten out of the truck, shut the door, and then got back by the truck, to keep the car from hitting him. He stated that the Walker ear was over the black line and traveling 50 miles an hour. James H. Lemons, another one of the crew, testified that when he first saw Walker’s car it was traveling not less than 40 miles an hour and was approximately a foot over the black line.

With reference to the question of due care on the part of plaintiff, Jane Walker, the record is wholly silent as to anything that she did or said, what she was doing or if she looked in any direction, immediately prior to the accident, which would be indicative of any care whatsoever upon her part. Under the rule hereinbefore discussed, such evidence or rather lack of the same, cannot constitute evidence of due care, upon the part of either plaintiff.

It is contended by plaintiffs that the obstruction of the view of traffic coming from the north, coupled with the negligence of defendant Norriss in driving his car into Court street, when his view was obstructed, was the proximate and direct cause of the accident. The question of proximate cause is so interwoven with, and so closely connected with the question of contributory negligence, that we do not deem it necessary to discuss this question at any great length. It has been repeatedly held that although the initial act of negligence may be the occasion for an intervening cause which intervenes and produces the injury, the intervening cause will be held to be the proximate cause of the injury, unless the intervening cause is within the control of the party responsible for the initial act. Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131; Campion v. Chicago Landscape Co., 295 Ill. App. 225, Op. 231; Seith v. Commonwealth Electric Co., 241 Ill. 252, Op. 260; Shayne v. Coliseum Bldg. Corp., 270 Ill. App. 547.

The case of McLaughlin v. Alton R., 278 Ill. App. 551 seems to us to be very much in point. There the railroad company had allowed weeds to grow up high on its property at the intersection of two streets, and two motorists ran together at the intersection. The negligence charged in that case was that the railroad company negligently allowed high weeds to grow on its land at the’ intersection thereby obstructing the view of motorists using the highways at the intersection and that because their view was so obstructed, the collision resulted. It was there held that the court erred in not directing a verdict for defendant because the negligence of the defendant in obstructing the view of motorists, was not the proximate cause of the injury.

It is our conclusion that the act of defendant company in stopping its truck near the intersection, was not the proximate cause of the damage to the car of Jo V. Walker and of the injuries to Jane Walker, but that the truck being there, at that particular time, did nothing more than furnish a condition by which the injury to the plaintiff was made possible. The proximate cause of the injuries and damage complained of, was the contributory negligence of plaintiffs and the negligence of defendant Norriss.

We deem it unnecessary for the determination of the issues involved in this case to discuss the legal question as to whether the statute alleged to have been violated, with reference to parking the truck at a place where official signs prohibited stopping, or within 20 feet of the crosswalk, was enacted for the protection of persons so situated as plaintiffs.

There is no evidence in the record tending to prove due care on the part of either plaintiff or to rebut the undisputed proof of their contributory negligence. We therefore find as an ultimate fact to be incorporated in the judgment, that plaintiffs Jo V. Walker and Jane Walker were not in the exercise of due care and caution at the time and immediately before the accident, and were guilty of contributory negligence. The trial court should have allowed the motion to find defendant not guilty at the close of plaintiffs’ testimony. Other errors are assigned and argued in the briefs, but as our conclusions on this assignment of error dispose of the case here it is not necessary to consider other errors assigned. On account of the error indicated, the cause is reversed without remanding.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Carrie L. Pippert, Appellee, v. Charles J. Schiele, Appellant.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Rehearing denied September 9, 1942.
    Pope & Driemeyer, of Est St. Louis, for appellant.
    E. W. Eggmann, of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment entered November 17,1941 in the city court of Bast St. Louis, in favor of Carrie L. Pippert, appellee, hereinafter referred to as plaintiff, against Charles J. Schiele, appellant, hereinafter referred to as defendant, in the sum of $850 and costs of suit. The action was in the nature of a suit on a promissory note, seeking to hold defendant as an endorser. The case was tried by the court, without a jury.

The amended complaint filed alleged that on November 9, 1929, Fred L. Johnson and Flora Johnson, his wife, executed a promissory note in the principal sum of $1,000, due three years after date, payable to the order of Charles J. Schiele, trustee, with interest at the rate of 6 per cent, and that on May 9, 1930, defendant Schiele sold the note to Catherine Meyers, and on that date placed thereon the endorsement, “Pay to the order of Catherine Meyers, for value received, Charles J. Schiele, Trustee.” It was alleged further ■that on November 9, 1930, when the note was presented to defendant for payment of interest, he, without the knowledge or consent of Catherine Meyers, added the words “without recourse” to that endorsement; that said additional endorsement was unauthorized, null and void.

Averment was further made that on November 9, 1932 the note was extended for three years; certain payments of interest to Catherine Meyers were set forth, and allegation that on November 13, 1939, Catherine Meyers sold and transferred the note to plaintiff and that she was the holder thereof, that plaintiff thereafter applied to defendant for payment of the note, that he paid her $75 thereon, that he has refused to pay the balance due, which was $775. Thereafter answer was filed which admitted the execution and delivery of the note, and that plaintiff was the present holder thereof, but denying the remaining averments.

The record discloses that on November 9, 1929 Fred L. Johnson and Flora Johnson, executed the note in question in the principal sum of $1,000 due three years after date, payable to Charles J. Schiele, trustee, defendant, was in the real estate business in East St. Louis and among his customers was one Catherine Meyers, to whom he had sold many real estate mortgages. On May 9,1930 defendant sold Catherine Meyers this note. Defendant claims that at the time he sold the note to Mrs. Meyers, he indorsed it, “without recourse.” He testified that he never said anything to Mrs. Meyers about not being responsible to her for the loan, and that she knew about the endorsement. When asked if he explained the meaning of the endorsement to her, defendant answered that he didn’t remember if he took the pains to explain. He stressed the fact that in previous dealings he had always indorsed notes in this fashion. When asked if he called Mrs. Meyers attention to the “without recourse” endorsement his answer was, “why should I.” When it was brought out that there were two kinds of ink used in the endorsement, defendant explained by saying that he wrote part of it at the desk and part at the counter.

Mrs. Pippert, plaintiff, testified in her own behalf that in November of 1939 she accompanied Mrs. Meyers to the office of defendant, that Mrs. Meyers wanted to sign the note over to plaintiff for Mrs! Meyers’ keep and funeral expenses, defendant was advised of this, and agreed to it. He paid Mrs. Meyers $50 and plaintiff testified that he agreed to pay her $50 a month, and afterwards did make some other payments on the note. She further testified that when she first saw the note, the endorsement, “without recourse” was not on it.

In 1937 the whereabouts of the Johnsons became unknown, and Schiele stepped in and began collecting the rents on the property involved. In 1940, Mrs. Meyers died.

The only other witness in addition to plaintiff and defendant was E. E. Eggmann, attorney of record for plaintiff, who testified over objection by defendant that he had talked Avith defendant about the note, and that defendant said nothing about it being “mthout recourse.” He also testified that defendant had paid $50 at one time and later $75 on the note, for plaintiff, and had said that he was collecting the rents on the property and would make further payments until the note was taken care of. Little weight, of course, is to be given the evidence of an attorney in the case. Wiederhold v. Wiederhold, 305 Ill. 429; Fallen v. Rauguth, 253 Ill. App. 328.

It is contended on behalf of defendant that the court erred in rendering judgment for plaintiff, and in failing to enter a judgment in favor of defendant. It is maintained that plaintiff was not a holder in due course. The general proposition as to whether or not plaintiff was a holder in due course was a question of fact. Renfrow v. Kramer, 341 Ill. 398; Foncannon v. Lewis, 327 Ill. 455. That question, the court decided favorably to plaintiff and under the evidence, we are not inclined to disturb that finding.

It is further urged on behalf of defendant that the court erred in admitting irrelevant, incompetent and immaterial evidence. Where the case is tried by the court without a jury, the admission of incompetent evidence is not ground for reversal, since it will be presumed, if nothing appears to the contrary, that the judge disregarded such evidence and tried the case on proper testimony alone. Kenealy v. Glos, 241 Ill. 15; Merchants’ Despatch Transp. Co. v. Joesting, 89 Ill. 152; Lake Forest Water Co. v. City of Lake Forest, 154 Ill. App. 184, aff’d 249 Ill. 382; Kittler v. Studabaker, 113 Ill. App. 342.

The trial court saw and heard the witnesses, and observed their conduct and demeanor upon the witness stand, and is in much better position, where the evidence is conflicting, to determine the question of the credibility of those witnesses, than is a court of review. The finding of a trial court, is entitled, on review, to the same weight as the verdict of a jury, and, if the evidence is conflicting, such finding will not be reversed on appeal unless it is contrary to the manifest weight of the evidence. Keefer Coal Co. v. United Electric Coal Companies, 291 Ill. App. 477; People v. Chicago & E. I. Ry. Co., 258 Ill. App. 535; Marble v. Estate of Marble, 304 Ill. 229. On this record we are not prepared to so hold.

Finding no reversible error, the judgment of the trial court will be affirmed.

Affirmed.


author: Mr. Justice Culbertson

text:
    Edgar Allen Lomax and St. Louis-Eastern Truck Lines, Inc., Appellants, v. H. M. Brooks, Appellee.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Rehearing denied September 9, 1942.
    Pope & Driemeyer, of Bast St. Louis, for appellants.
    Whitnel, Browning, Listeman & Walker, of Bast St. Louis, for appellee. •
   Mr. Justice Culbertson

delivered the opinion of the court.

Plaintiffs appellants (hereinafter called plaintiffs) brought suit against defendant appellee (hereinafter called defendant) to recover damage which they sustained as the result of a collision between an automobile driven by defendant and a tractor and trailer owned by plaintiff St. Louis-Eastern Truck Lines, Inc. and driven by plaintiff Edgar Allen Lomax. Plaintiff Lomax sued for personal injuries which he received in the collision, and plaintiff St. Louis-Eastern Truck Lines, Inc., sued to recover for damage done to its tractor and trailer. Defendant filed a counterclaim against plaintiff St. Louis-Eastern Truck Lines, Inc. for damages for injuries to his person and to his automobile. This case was tried before a court and jury, and which jury returned verdicts in favor of defendant, and against both plaintiffs, and judgment was entered on said verdicts by the court, in bar of further action as to plaintiffs’ suits. The jury returned a verdict for $10,000 in favor of defendant under his counterclaim against plaintiff St. Louis-Eastern Truck Lines, Inc., and judgment was entered by the court on said verdict, after a denial of motions for judgment notwithstanding the verdict and for a new trial. Plaintiff Lomax appeals from the judgment entered against him on his suit, and plaintiff St. Louis-Eastern Truck Lines, Inc. appeals from the judgment entered against it on its suit, and from the judgment for $10,000 entered against it under the counterclaim.

The complaint contains two counts. The cause of action of plaintiff Lomax is stated in the first count, and the cause of action of the plaintiff company is stated in the second count. Both counts contain substantially the same allegations, and both charge that on February 2,1941, plaintiff Lomax was operating an automobile tractor and trailer, the property of plaintiff St. Louis-Eastern Truck Lines, Inc., in a southerly direction on IT. S. Highway No. 40 immediately south of its intersection with Illinois Highway No. 157, near Collinsville, in Madison county, Illinois; that at the same time defendant, H. M. Brooks, was driving his automobile in a northerly direction on U. S. Highway No. 40, which is a paved four-lane highway; that defendant negligently drove his automobile so as to cause it to collide with the tractor and trailer; that defendant drove his automobile at a speed greater than was reasonable and proper, in violation of the statute, so as to injure plaintiff Lomax and to damage the property of the plaintiff company; that defendant further violated the statute in that he drove his automobile upon defendant’s left half of H. S. Highway No. 40 so as to cause it to collide with the tractor and trailer ; and that as a direct and proximate result of defendant’s negligence, plaintiffs were damaged. The answer of defendant admitted the time and place of the collision, and denied the other allegations of both counts of the complaint. The counterclaim alleged that south of the intersection of Illinois Highway No. 157 and U. S. Highway No. 40, both highways are extended over the same four-lane paved surface;. that at the said intersection Illinois Highway No. 157 runs northwardly and U. S. Highway No. 40 turns eastwardly, and from the point of intersection runs east and west; that at the point of intersection of said highways the Department of Public Works and Buildings of the State of Illinois had erected a stop sign to compel traffic approaching the intersection from the east, on U. S. Highway No. 40, to come to a full stop before entering the intersection; that on February 2, 1941 defendant was driving his automobile northwardly at or near said intersection and was in the exercise of due care for his own safety; that plaintiff St. Louis-Eastern Truck Lines, Inc. negligently operated its truck and trailer so as to cause it to collide with defendant’s automobile; that plaintiff, in violation of paragraph 167 of chapter 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.199], failed to stop its vehicle before entering the intersection and failed to give the right-of-way to defendant; that plaintiff failed to keep a reasonable lookout for approaching vehicles and, in violation of paragraph 166 of chapter 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.198], attempted to enter the intersection and turn to the south when it could not do so with safety, and that as a direct and proximate result of plaintiff’s negligence, defendant was damaged. Plaintiff admitted the erection and existence of the stop sign at the time of the collision, and the description of the highways, and denied the other allegations of the counterclaim.

From the evidence in this case it appears that the collision involved in this case occurred at the intersection of U. S. Route 40 and Illinois Route No. 157, some two miles northwest of Collinsville, in Madison county, Illinois. South of the point of intersection both routes extend north and south upon the same four-lane paved surface, which is 40 feet wide. Route 40 turns east at the intersection and continues as a four-lane forty-foot wide pavement. A concrete apron on the north side of Route 40, and the curve in the pavement of Route 40 where it turns east from Route 157, substantially widens the paved surface of Route 40 just east of the point of intersection. There is a stop sign located on the north side of Route 40 east of its intersection with Route 157. Immediately east of the point where Route 40 converges with Route 157, a white line is painted across the pavement. This white line begins on the north side of the pavement and extends, with a gap of several feet, south across the apron to the northerly side of the west-bound lanes of Route 40. It then extends southeast across the two west-bound lanes to the center line of Route 40. Just east of this white line, the word “stop” is painted on each traffic lane of the pavement, in large white letters.

Plaintiff Lomax testified that on Sunday morning, February 2, 1941 he was proceeding on Route 40 en route from Indianapolis to St. Louis, driving a 1940 Ford tractor, to which was attached a loaded refrigerator trailer. The evidence discloses he had left Indianapolis at about 5 or 6 p.m. the night before. The tractor, trailer, and load, weighed 30,000 pounds. The tractor was equipped with hydraulic brakes and the trailer with vacuum' brakes. He testified that the traffic was light, the pavement dry, and visibility good. Plaintiff Lomax testified that when he reached the intersection with Illinois Highway No. 157, he pulled up to the stop line and came to a full stop. He testified that he looked first to the south on 157 and saw no traffic approaching, and he then looked to the north and saw no cars coming, and he then shifted the tractor into low gear and started across the intersection, headed west, and that when he reached the center of the intersection he was traveling five miles an hour, and that he then shifted into second gear, and at the same time saw Brooks’ Willys car coming from the south, about 400 yards away, and that he continued to cross the intersection and got into the west lane and* had turned south in the west lane and driven 100 to 120 feet south in that lane when Brooks’ car (when about 40 to 50 feet from his truck) angled left across the highway directly toward the truck driven by plaintiff and collided with the left front end of the tractor in the west lane of the four-lane pavement. Plaintiff testified that Brooks was traveling at about 50 miles an hour when he first observed him, and that Brooks did not reduce his speed and, if anything, was traveling faster at the time of the collision than when he first observed him. Plaintiff testified that when the collision occurred he jerked his tractor sharply to the right, or west, and that he was thrown against the left door of the tractor and stunned. It appears the car, truck and tractor went off the road and down an embankment of 4% to 5 feet and into a plowed field and that when Brooks’ car and the truck stopped, the right side of the car was against the left side of the tractor, and that both the car and truck were headed west.

It appears from the testimony of William Joerms, who testified that he witnessed the collision, that he observed the truck when it arrived at the intersection, and that it came to a stop at the stop line, and after it started up and had been driven west across the intersection to the west lane, he observed it turned south in the west lane and drove south to a point 40 feet beyond the Route 40 marker sign, and that he also observed defendant’s car and when defendant’s car was about 75 yards south of the truck it turned diagonally northwest across the pavement and continued in that direction until it struck the left front and side of the truck. This witness testified the collision occurred in the west lane and gave as his opinion, that Brooks’ car was traveling at about 40 miles per hour, or faster, at the time of the collision.

Brooks, testifying in defense of the suit brought against him and in support of his counterclaim, testified that his profession was that of a drug clerk, and that just prior to the accident he was driving his Willys sedan northwardly on Boute 157 en route to work over Sunday on a piece of ground he owned near Gillespie, Illinois. It was his intention to continue north on Boute 157, past the intersection where this accident happened. He testified he was traveling on the inner north-bound traffic lane as he approached the intersection, at a speed of from 35 to 40 miles an hour, and that when he was about 250 to 300 feet from the intersection he saw the plaintiff’s truck approaching the intersection from the east, traveling on Boute 40. Brooks testified that when he first observed plaintiff’s truck that it was in the neighborhood of the stop sign, which is about 150 feet from the stop line, and that the truck was proceeding at a speed of about 35 miles an hour. It appeared to this witness that the truck seemed to slow down as it approached the stop line, and Brooks testified that he assumed the truck was going to stop and continued his journey northwardly on the innermost north-bound lane, until the truck passed over the stop line and shot across the highway in front of him, in a southwesterly direction. He testified that the 32-foot tractor and trailer barred his path and he swung sharply to his left in an attempt to avoid the collision. This witness testified that the left front of the truck struck the right side of his car. This witness appeared to have no recollection of anything that happened after the collision, until he found himself at the hospital. The injuries to Brooks were so serious that the verdict of $10,000 in his favor on his counterclaim, is not challenged in this court as being excessive.

There is evidence in the record by a witness who reached the scene of the accident a few minutes after it occurred, that he observed fresh dual-wheeled skid marks three or four feet long, in the second west lane of Route 157, extending in a westerly direction, and that these skid marks led to the tracks on the shoulder and out into the field where the truck was mired. Photographs were received in evidence showing tracks made by the truck on the shoulder and in the field were practically at right angles with Route 157. There also appears the evidence of two witnesses who testified that the truck was so far out in the field that the rear end of it was 25 feet from the slab of Route 157, and the tracks made by the truck miring down in the soft shoulder and field, were ten inches to a foot deep. Photographs in evidence do not disclose any damage to the front end'of the Brooks car.

Plaintiffs Edgar Allen Lomax and St. Louis-Eastern Truck Lines, Inc., assign as error in this court: (First) The refusal of the trial court to allow their motion for a new trial; (Second) That the judgment in bar of their suit, from which they appeal, is contrary to the law and the evidence; and (Third) That the trial court erred in giving the instructions given at the request of the defendant. In connection with the counterclaim, the said St. Louis-Eastern Truck Lines, Inc. assigns the following error: (First) The refusal of the trial court to direct a verdict in its behalf, and to allow its motion for judgment notwithstanding the verdict; (Second) The refusal of the trial court to allow its motion for a new trial; (Third) That the judgment against it, under the-counterclaim, is contrary to the law and to the evidence; and (Fourth) That the trial court erred in giving the instructions given at the request of defendant. It is urged that the evidence conclusively shows that the defendant was guilty of negligence which contributed to his injuries, and that it was, therefore, error to refuse to direct a verdict against him on his counterclaim.

An examination of the evidence does not, in our opinion, furnish us with any basis upon which we would be in a position to say that the defendant was guilty of negligence, as a matter of law. It seems to us that an issue of fact was tendered on this subject, and it has been passed upon by the jury, adversely to plaintiffs in their original suit, and we would not be permitted to disturb it unless, we are able to say that said verdicts were against the manifest weight of the evidence. We do not believe, and hold, that the verdicts in favor of the defendant in the original suit were not against the manifest weight of the evidence.

In connection with the contention advanced on this appeal with reference to the counterclaim, that the court committed error by not directing a verdict and in not allowing the motion for a judgment notwithstanding the verdict. It must be conceded that the well-settled law of this State is, that a trial court is not permitted to direct a verdict where there is any evidence fairly tending to prove the allegations of the defendant’s counterclaim (Blumb v. Getz, 366 Ill. 273, 274), and in passing upon a motion to direct a verdict, the court must consider the evidence produced by the defendant on his counterclaim, together with all reasonable inferences to be drawn therefrom, most strongly in favor of the defendant on his counterclaim, and must reject all contradictory evidence and all explanatory circumstances (Blumb v. Getz, supra). Applying these well-defined principles to the instant case we conclude, and hold, that the trial court did not commit error in failing to direct a verdict in favor of the defendant in the counterclaim, and did not commit error in denying the motion for a judgment notwithstanding the verdict, filed on behalf of defendant in the counterclaim. We are not able to say that the verdict in favor of plaintiff in his counterclaim is against the manifest weight of the evidence, but it appears to us that it has abundant support in the evidence.

It is finally contended that the court committed error in giving defendant’s instruction, number one. A careful reading of this instruction discloses that it is an instruction that did not direct a verdict, and is an instruction in the language of the law itself. Where an instruction is given in the language of a statute which is pertinent to the issues, it must be regarded as sufficient. Laying down the law, in the words of the law itself, ought not to be pronounced error (Deming v. City of Chicago, 321 Ill. 341; Minnis v. Friend, 360 Ill. 328). The proposition of law stated, we believe, was pertinent to the issues, and we hold that no error was committed by the court in the giving of this instruction. The court, in denying the motion for a new trial, committed no error.

No error having been assigned that would warrant us in any way interfering with the judgments entered in bar in connection with the suit of plaintiffs, as originally filed, and no error having been assigned that would warrant any interference on the part of this court with the judgment in favor of plaintiff in the counterclaim, said judgments are hereby, accordingly, affirmed.

Judgments affirmed.


author: Mr. Justice Dady

text:
    Harry C. Kinne et al., Appellants, v. Dick Duncan and First United Finance Corporation, Appellees

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Rehearing denied September 9, 1942.
    Andrew O. Niehoef, of Carlyle, for appellants.
    Weeks, Sueles & Potter, of Tyler, Texas, for certain appellee.
    McCabe, Abrahams & Daly, of Chicago, and Russell Wilson, of Centralia, for certain other appellee; Russell Wilson, of Centralia, and Harry Abrahams, of Chicago, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal from a decree rendered in a mining partnership accounting suit involving an oil lease.

For convenience the litigants will be referred to as follows: Harry C. Kinne as “Kinne,” Helia Kinne as “Mrs. Kinne,77 Elnora Horton as “Mrs. Horton,” Dick Duncan as “Duncan,” Allen A. Borton as “Borton” and First United Finance Corporation as “finance corporation.”

Duncan is in the business of drilling oil wells in Texas and in Illinois. On April 26,1937, Henry Knolhoff, who was the owner of forty acres of land in Clinton county, gave one Osborne an oil and gas lease thereon, herein referred to as the “Knolhoff” lease, reserving to himself a one-eighth royalty. On March 13,1940, Duncan became the owner of the interest given the lessee. Borton is also engaged in the oil business and on June 14,1940, acquired a one-half interest in the Knol-hoff lease from Duncan. An agreement was entered into at this time between Duncan and Borton, the details of which are in controversy, for the drilling of certain oil wells by Duncan upon this forty acre tract, and thereupon the relationship between Duncan and Borton admittedly became that of mining partners. Duncan commenced the drilling of well No. 1 on the premises about June 28,1940.

On July 12, 1940, Borton assigned to the Kinnes, “share and share alike,” a one fourth of his interest in the Knolhoff lease, and on the same date assigned to Mrs. Horton his remaining one-fourth interest in said lease, which assignments were recorded on the same date. Kinne is a lawyer and represented Borton as his attorney in various oil matters prior to June 1940. Mrs. Kinne is the wife of Kinne; Mrs. Horton is the mother-in-law of Borton.

Between June 28,1940, and the commencement of this suit Duncan completed the drilling of nine wells on said premises, the last about September 5,1940. All of the wells with the exception of one, No. 6, were drilled on the east 20 acres of the tract in question. Wells numbered 1 to 4 inclusive are substantial producers. Some oil has been produced from wells numbered 7 and 9, while wells 5 and 8 are dry. Duncan drilled well No. 6 on the west 20 acres of the tract in question and this well was dry. All oil produced has been sold to Union Pipe Line Company.

On various dates between July 20,1940 and the date of the filing of suit, Duncan, the Kinnes and Mrs. Horton each made assignments to the finance corporation of certain oil payments against all or a portion of their respective interests in the leasehold estate to secure the payment of certain advances made to them respectively by the finance corporation.

On October 29, 1940, Duncan filed in the recorder’s office of Clinton county a claim for lien in the amount of $14,810.31, in which he stated that at the request of the Kinnes and Mrs. Horton, he had conducted the development and operation of the leasehold in question; that as his mining partners the Kinnes and Mrs. Horton were subject to the payment of one half of the costs of such development and operation; that such indebtedness amounted to the sum of $14,810.31 and that he, Duncan, claimed an oil and gas lien as well as a partnership lien upon their one-half interest in said lease, the equipment thereon and the oil and gas produced therefrom. On January 15, 1941, Duncan filed in said recorder’s office his amended claim for such lien in the sum of $15,200.83. Notice of the filing of such lien claims was given to the Union Pipe Line Company, and thereupon payments were stopped by said company, including all payments being made to the finance corporation upon the assignments held by it.

On January 8,1941, Kinne filed his complaint herein alleging that on July 12,1940, he and Mrs. Horton each became the owner of one-fourth interest in said leasehold subject to the rights of the finance corporation; that Duncan drilled and completed wells numbered 1 to 4 but that subsequent to the completion of well No. 4, and without the consent and against the objection of the plaintiff and Mrs. Horton, Duncan drilled wells numbered 5 to 9, both inclusive; that such wells were in no way necessary for the reasonable development and operation of the leasehold; that the charges made by Duncan were excessive and unreasonable, and that the liens filed by Duncan constituted a cloud upon the plaintiff ’s title. The complaint asked for an accounting, the appointment of a receiver, and the removal of the claims for lien filed by Duncan. Later Mrs. Kinne and Mrs. Horton on their motion were joined as coplaintiffs.

Duncan filed an answer and counterclaim which alleged that by reason of the Borton assignments the Kinnes and Mrs. Horton became his mining partners ; that Borton either remained the owner of his interest so assigned by him by reason of the fact that said assignments were not bona fide, or that in the alternative Borton acted as the agent of the Kinnes and Mrs. Horton in the development and operation of said lease; that, as such agent, Borton authorized the drilling of the nine wells in question and that there was due from the Kinnes and Mrs. Horton for such drilling the sum of $15,200.83, for which sum Duncan claimed both an oil and gas and a partnership lien against the interests of the Kinnes and Mrs. Horton. Duncan also claimed that the liens held by him were superior to the rights of the finance corporation created by the assignments received by it from the Kinnes and Mrs. Horton. In such counterclaim Duncan asked that his liens be adjudged prior liens as against the rights of the finance corporation, and that such liens be foreclosed for the amount due to him from the Kinnes and Mrs. Horton.

The finance corporation filed a counterclaim setting up the various assignments made to it by the plaintiffs and by Duncan, and asking that its rights be adjudicated as superior to those of the plaintiffs and Duncan. After the foregoing pleadings had been filed Duncan was appointed receiver by agreement of all parties and the propriety of such receivership is not in issue.

The case was heard before the chancellor in open court, who then rendered the decree appealed. from. In such decree the chancellor found that upon the making of the assignments by Borton to the Kinnes and Mrs. Horton, the last named parties became members of a mining partnership along with Duncan; that Duncan was the owner of a one-half interest therein; that Kinne and Mrs. Kinne were the owners of a one-fourth interest, and Mrs. Horton the owner of a one-fourth interest; that the interest of each of such parties was subject to the respective assignments made by them to the finance corporation, and that such assignments constituted valid and binding first liens against the respective interests of said parties, to be paid from the oil runs received from said leasehold in accordance with such assignments ; that Borton was the agent of the Kinnes and Mrs. Horton, duly authorized by them to represent their interests in the development and operation of said lease, and that said agent authorized Duncan to drill all nine of said wells; that the drilling of all such wells was reasonably necessary for the development of said leasehold ; that Duncan acted in good faith in such drilling; that Duncan was not entitled to receive any profit therefrom but only the actual cost of drilling and development, which cost the court found to be the sum of $42,149.95, after deducting certain credits, and that one-fourth of the same or $10,537.48 should be paid.by Mrs. Horton and a like amount by the Kinnes; that after crediting certain payments already received there was due Duncan from Mrs. Horton for such drilling and development the sum of $3,037.48 and from the Kinnes the sum of $6,537.48; that Duncan was not entitled to an oil and gas lien as provided by the statute, but was entitled to a mining partner’s lien against the respective interests of the plaintiffs for the amount found due him.

The decree then ordered that unless the amount found due Duncan was paid within 60 days the respective interests of the plaintiffs be sold at public sale, subject to the rights of the finance corporation, with the usual provisions for a report of sale together with a report of a possible deficiency in favor of Duncan and against Kinne and Mrs. Horton.

Plaintiffs have appealed from the decree and defendant Duncan has filed a cross-appeal. We shall first consider the assignments of error made by plaintiffs.

Plaintiffs’ first contention is that the chancellor improperly assessed against them a share of Duncan’s costs and expenses in the drilling of the nine wells in question. The chancellor based the assessment of this liability upon his conclusion that a mining partnership existed between plaintiffs and defendant for the purpose of drilling these nine wells. It is admitted that such a partnership did exist between Duncan and plaintiffs ’ predecessor in title, Borton. Both parties also recognize that one of the peculiar legal attributes of a mining partnership, as pointed out in the case of Harris v. Young, 298 Ill. 319, 326, is the absence of a delectus personae, and that upon the sale of any partner’s interest the vendee of such interest, unless there is an agreement to the contrary, becomes a partner, in the place of the vendor, with the remaining members of the firm. Following this rule, the assignments made by Duncan’s partner, Borton, to the Kinnes and to Mrs. Horton operated to make them members of the partnership in place of Borton.

Plaintiffs insist that Mrs. Kinne should not be considered a partner because of an alleged assignment made by her of her interest to her husband, Harry C. Kinne. No such assignment was offered in evidence and there is no testimony as to the date when such alleged assignment was made. So far as the record shows, it may have been made on the morning of the trial. In this state of the record we think the chancellor was justified in finding that Mrs. Kinne remained a partner throughout the transaction.

Plaintiffs further contend that even if a mining partnership existed between them and Duncan that Duncan had no authority to drill wells numbered 5 to 9 inclusive, and to subject the plaintiffs to the payment of a proportionate share of the costs of such drilling. Plaintiffs maintain that defendant’s authority to drill ended with the completion of well No. 4. Duncan’s contention at the trial was that Borton either remained the actual owner of the interest assigned to the Kinnes and Mrs. Horton and as such agreed to the drilling of all wells, or in the alternative that Borton was the agent of the plaintiffs and in this capacity authorized Duncan to drill the wells in question. The chancellor based his decree on this latter theory. The evidence shows that even after making the assignments in question Borton remained on the scene of operations and reported from time to time to the plaintiff Kinne, and also to Mrs. Horton, as to the developments on the lease. Where the chancellor has heard the witnesses in open court his findings and conclusions will not be disturbed on appeal unless they are manifestly and palpably wrong. (Hall v. Pittenger, 365 Ill. 135.) Although the evidence was conflicting on the question of agency, we think the chancellor was justified in holding that Borton was in fact the agent of the plaintiffs from the time they received their assignments from him and that as such agent he authorized and knowingly permitted Duncan to drill the nine wells in question.

Plaintiffs make the further contention that if a mining partnership existed between themselves and Duncan the relationship existing between the partners was one of trust and confidence and that Duncan cannot claim a profit from his copartners for the labor and material furnished by him in the development of the partnership property. We agree with this general statement; however, it appears that the chancellor deducted the sum of $10,800 representing Duncan’s alleged profit in the transaction, and that the amounts finally assessed against plaintiffs were based upon the actual expenses and costs incurred by Duncan. We have reviewed the evidence as to such costs and expenses and we think that the figure established by the chancellor was reasonable and was justified by the evidence.

Having determined the amount of Duncan’s costs and expenses which were chargeable to the partnership, it was necessary for the chancellor to make a proper division of these costs and expenses between the plaintiffs and Duncan. Under the terms of the decree the total costs of development were apportioned as follows: Duncan, one half; Mrs. Horton, one fourth; Mr. and Mrs. Kinne, one fourth. Plaintiffs insist that the chan cellor erred in assessing one fourth of the costs against Mr. and Mrs. Kinne jointly. In the absence of an agreement fixing a different measure of liability, the share of authorized partnership expenses to be paid by each partner in a mining partnership" is fixed in the same proportion as his interest in the partnership property. (Harris v. Young, 298 Ill. 319.) By the assignment from Borton, Mr. and Mrs. Kinne received their one-fourth interest in the leasehold share and share alike. ’ ’ The effect of this assignment was to give each of them an undivided one-eighth interest and the chancellor should have held each of them liable for one eighth and and not one fourth of the development costs. The decree should also have held Mrs. Kinne liable for her proportionate share of any deficiency along with her husband and Mrs. Horton.

Plaintiffs apparently recognize the rule that finder certain circumstances a member of a mining partnership may be entitled to a partnership lien against the interest of his copartners which he can enforce by foreclosure in a court of equity. Plaintiffs deny, however, that Duncan is entitled to such a lien under the facts of this case. The first point made by plaintiffs in this connection is that Duncan is still indebted in a large amount to persons who extended him credit for labor and materials used in connection with the development of the partnership property; that credit was extended to Duncan personally and not to the partnership, and that under such circumstances Duncan should not be permitted to assert a lien for such expenses against the partnership property. Only one of Duncan’s creditors, the Pure Torpedo Company, was made a party to this proceeding and by agreement, this claim has been paid by the receiver. The positive and uncontradicted testimony is that the credit which Duncan received was extended to him alone and not to the partnership. In this situation, as pointed out in the case of Watt v. Kirby, 15 Ill. 200, 202, the creditors cannot hold the other partners liable although they may have received the benefit of the transaction. The partnership lien being asserted by Duncan in this suit is based upon his contribution to the development of the partnership property in excess of that made by the plaintiffs. We know of no requirement that a partnership contribution must be made in cash in order to entitle a partner to obtain reimbursement from his copartners. The situation would not have been any different if Duncan had borrowed on his personal credit a sufficient sum of money to pay these same creditors and after paying them had then asserted his claim for lien. There is no possibility at this late date of any creditor filing a valid lien claim against the partnership property under the gas and oil statute by reason of any labor or materials furnished to Duncan in connection with the development of the wells in question. The statute provides that such claims must be filed within four months after the completion of the work and this period had expired before the commencement of this suit. We see no reason why the existence of these outstanding personal bills owed by Duncan should prejudice his right to an equitable lien.

The next point made by plaintiffs is that Duncan lost any mining partner’s lien to which he may have been entitled when he, Borton, the Kinnes and Mrs. Horton executed certain division orders and transfer orders to the Union Pipe Line Company. The first of these division orders was executed by Duncan and Borton about July 3,1940, in which they thereby agreed to sell to the Pipe Line Company the oil produced from the Knol-hoff lease. The order specified that “until further notice you (the pipe line company) will give credit for all oil received from said wells as per directions below. ’ ’ It then provides that the pipe line company is to credit to Duncan a .4375 w. i. (which is one half of a seven-eighths working interest) and to Borton a like amount subject to a $7,500 oil payment to be made to the finance corporation out of one-hlaf of the seven-eighths interest until this amount had been received, “then to revert to the assignor. ’ ’ A similar division order was signed by the Kinnes, Mrs. Horton and the finance corporation under which the oil company was to credit the finance corporation a .4375 w. i. until a payment of $7,500 was paid to the finance corporation from oil sold from the lease, at which time one fourth of a seven-eighths w. i. was to revert to the Kinnes jointly and one fourth to Mrs. Horton. As new loans were secured from time to time by the plaintiffs and by Duncan from the finance corporation, transfer orders were delivered by the respective parties to the pipe line company setting up the new interest of the finance corporation in the oil to be sold.

Plaintiffs contend that a partnership lien can extend only to partnership property as such, and that the execution of the above mentioned division orders and transfer orders by the plaintiffs and Duncan was, in effect, a division of the partnership property among the partners which operated to divest any prior partnership lien therein. In support of this contention, plaintiffs cite Childers v. Neeley, 47 W. Va. 70, 34 S. E. 828. While some of the language used in this case supports plaintiffs’ position, the later case of Greenlee v. Steelsmith, 64 W. Va. 353, 62 S. E. 459 qualifies the earlier case. This is evident from the following statement made by the court in the Greenlee case: “It is contended by appellant that if the leaseholds were social assets, the execution by Greenlee and Steelsmith of division orders was a release of Greenlee’s lien. From what has been said, it is clear that this lien was only released on the product from the time it entered the pipe lines to the credit of the different parties entitled thereto, but remained in force as to the social assets not divided.” Both the Childers case and the Greenlee case are cited in Harris v. Young, 298 Ill. 319, in which the court makes this elaboration of the rule: “These liens exist only against the partnership property while it is distinctly such partnership property. Such liens on the oil itself in favor of the members only exist while it is the property of the firm. When it is separated or divided by division or sale and any part of the oil is set apart to the individual members of the firm as their distinct part or share, or such oil is sold and the proceeds divided among the individual members of the firm, no lien further exists either on the oil thus separated and divided or on the proceeds of that so sold and divided. ’ ’

The service of Duncan’s claim of lien upon the pipe line company put the company on notice that Duncan was no longer willing to have the oil thereafter produced or the proceeds received therefrom distributed in the manner set forth in the division and transfer orders which had been executed by him. After the service of such notice, the pipe line company withheld asking any further division or payment of'monies to any of the parties named in the division and transfer orders. The decree entered by the chancellor gives Duncan a mining partner’s lien against the respective interests of the plaintiffs in the leasehold estate and the oil produced therefrom and the proceeds thereof. This provision of the decree was too broad. Duncan’s partnership lien under the foregoing authorities should have been specifically restricted to all oil entering the pipe lines of the pipe line company and the proceeds received therefrom after the service of his lien claim upon the pipe line company on October 29, 1940.

Plaintiffs’ next contention is that the decree is erroneous because it orders an accounting without providing for a complete dissolution of the partnership and a sale of all of its assets. There is clearly no inherent lack of jurisdiction in a court of equity to order a partnership accounting without also providing for a dissolution. The ease of Harris v. Young, supra, indicates that an accounting may be had in a mining partnership without declaring a dissolution. Moreover, even if the usual equity practice is to insist upon a dissolution before ordering a partnership accounting, plaintiffs have waived the benefit of this rule in this case. In their original complaint ■ plaintiffs themselves asked for an accounting and made no request for a dissolution of the partnership. When Duncan’s counterclaim was filed asking for this same restricted relief, plaintiffs answered and made no objection to the court assuming jurisdiction, and plaintiffs did not raise the question at any stage during the trial court proceedings. It is a well-settled rule of law that a person cannot try a case on one theory in the trial court and on another theory in a court of review. (Flanagan v. Wilson, 310 Ill. App. 557.)

Another assignment of error by plaintiffs is that the chancellor found the Fox Rig and Lumber Company entitled to a prior lien and ordered the payment of its claim in the amount of $838.78 from the funds in the hands of the receiver even prior to the payment of the claim of the finance corporation. This company furnished either services or materials to Duncan which were used by him in connection with the development of the leasehold. However, the company was not a party to the proceedings and no proof was offered to sustain such claim. In this situation it was error for the chan-eellor to order the payment of this claim in the manner provided in the decree. The amount so due the Fox Eig and Lumber Company should have been included in the amount of the judgment given to Duncan thereby increasing to that extent Duncan’s lien against the interests of the plaintiffs.

Plaintiffs also complain of the provision made in the decree directing the receiver to pay over to the finance company 80 per cent of the monies now in his hands or to come into his hands from the sale of oil runs out of the working interest of the plaintiffs and Duncan after deducting the reasonable costs of operating said lease until the sums due to it under the respective assignments are paid. Plaintiffs insist that all of their respective shares of the funds in the receiver’s hands should be paid to the finance corporation rather than 80 per cent thereof. The purpose of the 80 per cent limitation is not apparent from any of the provisions of the decree. The chancellor could properly withhold from distribution by such receiver a sufficient reserve in order to provide for all operating expenses for the continued operation of the lease. The order provides that 80 per cent payments are to continue until the further order of the court, and if any adjustment is necessary in this respect the chancellor has jurisdiction to make the necessary correction.

The foregoing disposes of all of plaintiffs’ objections to the decree. We shall now consider the cross errors assigned by the defendant, Duncan.

Dunaan’s principal objection to the decree is that it fails to provide that his partnership lien is superior to the rights of the finance corporation under the assignments given to it by the plaintiffs. No question is raised by any of the parties as to the correctness of the amounts found to be due to the finance corporation under the various assignments given to it by Duncan and by the plaintiffs. Duncan admits that the assignments made by him to the finance corporation are binding upon his interest in the leasehold and that the finance corporation should be repaid the advances made to him out of his share of the first runs received from the oil produced from the leasehold. He contends, however, that the chancellor erred in holding that he was estopped from asserting that his partnership lien was prior to the rights of the finance corporation under the assignments given to it by the plaintiffs and in ordering the finance corporation to be first paid out of the plaintiffs’ share of the proceeds of the oil runs the amounts due to it under plaintiffs’ assignments.

In July of 1940, Borton, although he had already assigned all of his interest in the leasehold to the Kinnes and Mrs. Horton, executed an assignment to the finance corporation in the amount of $7,500, which purported to cover his one-half interest in the lease. The finance corporation paid out the sum of $6,000 on this assignment to Borton and Borton paid $5,000 of this sum to Duncan to apply upon the development costs of the lease. The finance corporation requested that the assignment be corrected and in August of 1940, Duncan went to Chicago to assist Borton and the Kinnes in making such correction and was present when a new assignment was made by the Kinnes and Mrs. Horton to the finance corporation. Borton’s assignment was thereupon released. On August 14, 1940, Mrs. Horton made an assignment to the finance corporation for $7,500 against her interest and a check for $6,000 was received upon this assignment by" Borton, which was turned over by him to the plaintiff, Harry C. Kinne. Kinne on August 16, 1940, mailed $5,000 received from the proceeds of this assignment to Duncan to apply upon development costs. Duncan made requests upon Borton from time to time for money to pay for development costs and knew at the time of making these requests that Borton did not personally have the funds to pay these costs, and that at least a part of the costs was being-secured by means of the loans made by the finance corporation to the plaintiffs. Duncan was furnished statements from time to time by the pipe line company and at least some of these statements showed the interest of the finance corporation under the various assignments which had been made to it from time to time both by Duncan and by the plaintiffs. We think that the evidence was sufficient to justify the chancellor’s finding that Duncan knew that loans were being made to the plaintiffs by the finance corporation and that plaintiffs were making assignments to the finance corporation to secure such advances. All of these assignments were made by plaintiffs prior to the filing of Duncan’s lien claim. Duncan’s partnership lien was a secret lien until it was filed and notice given to the interested parties, while the assignments made to the finance corporation were each recorded and were matters of record. At no time did Duncan make any objection to the finance corporation making any of the advances in question to the plaintiffs, or give any notice to the finance corporation of his claim for lien until such claim was filed on October 29,1940. It would be highly inequitable to permit Duncan, after sitting idly by and receiving at least a portion of the benefit of such assignments with knowledge that the finance corporation was advancing funds to plaintiffs, to assert at this late date that his rights are superior to those of the finance corporation. We think that the chancellor was clearly justified in subordinating Duncan’s lien to the rights of the finance corporation in the manner provided by the decree.

Duncan makes the further contention that if the rights of the finance corporation are not subject to his partnership lien they are subject to the oil and gas lien claimed by him. The chancellor found that Duncan was not entitled to an oil and gas lien. This type of lien is created by section 2 of our Oil and Gas Lien Act, par. 72, ch. 82, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 93.64], which provides that “any person who shall under contract with the owner of any land or leasehold for oil or gas purposes . . . furnish materials . . . used ... in the digging, drilling ... of any oil or gas well upon such land or leasehold . . . shall be entitled to a lien . . .” Admittedly the labor and materials furnished by Duncan were used in the development of a leasehold in which he owns a one-half interest. In the case of Uncle Sam Oil Co. v. Richards, 60 Okla. 63,158 Pac. 1187, involving the construction of an identical statute in the State of Oklahoma, it was held that the act did not apply to work done or materials furnished by a person who was a part owner of the property. A similar holding was made in the case of Gaudreau v. Bennett, 137 Kan. 644, 21 P. (2d) 330.

We do not think that our own statute contemplates that a part owner of an oil and gas lease who has furnished labor and materials for the development of such lease is entitled to a statutory lien for such labor and materials as against his co-owners. There was no error in the chancellor’s disallowance of an oil and gas lien to Duncan.

For the several reasons indicated, the decree will be affirmed in part and reversed in the particulars pointed out in this opinion and the cause remanded with directions to the chancellor to amend the decree in conformity with the views herein expressed.

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


text:
    M. F. Snook et al., Appellees, v. Archie H. Shaw and Elizabeth E. Shaw, Appellants.
    Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Rehearing denied September 9, 1942.
    J. H. Clayton, of Johnston City, for appellants.
    Isaac K. Levy, of Murpkysboro, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

By their complaint in chancery filed on December 21, 1939, plaintiffs sought to secure 'the correction and reformation of the assignment appearing upon a certain sheriff’s certificate of purchase together with the reformation and correction of a sheriff’s deed which had been issued under said certificate. In addition to this relief, plaintiffs also asked to be given possession of the premises described in said sheriff’s deed.

Defendants first filed a motion to dismiss the complaint, or, in the alternative, to make it more specific, and upon the denial of this motion filed their answer to the complaint, to which plaintiff filed their reply. The case was then heard by the chancellor and at the conclusion of plaintiff’s evidence defendants renewed their motion to dismiss. The chancellor denied this motion and when defendants elected to stand upon the motion a decree was ordered in accordance with the prayer of the complaint.

Plaintiffs have filed a motion to dismiss the appeal, which motion we took under advisement with the case. The principal ground raised by plaintiffs’ motion is that the present appeal was not filed within 90 days from the date of the entry of the decree in the trial court, as provided by section 76 (1) of the Civil Practice Act. The chronology of the trial proceedings is as follows: The decree was ordered by the chancellor at the conclusion of the hearing which was held on May 15,1941. The docket entry made on this date was as follows: “Decree in accordance with prayer of complaint. Decree to be submitted.” The decree was prepared by plaintiffs’ attorneys and was mailed by them to the presiding judge for his signature on May 22,1941, but was not filed with the clerk until June 18, 1941. On July 14, 1941, and within 30 days after the decree was actually filed, the defendants made a motion to vacate, which motion was denied by the chancellor on October 7, 1941. Notice of appeal was filed on November 15,1941.

Plaintiffs contend that the 90-day period commenced to run from May 15,1941, the date when the chancellor ordered the decree. If this is the controlling date, the notice of appeal filed on November 15, 1941, came too late. Defendants argue that the decree was not entered until it was filed with the clerk on June 18,1941, that the motion to vacate which was filed within 30 days after June 18,1941, prevented the decree from becoming final 'until such time as said motion was denied, and that said motion was not denied until October 7,1941, which was less than 90 days prior to date of the filing of the notice of appeal.

Section 2 of an act in relation to final judgments, decrees and orders, Ill. Rev. Stat., ch. 77, par. 83 [Jones Ill. Stats. Ann. 104.100], provides: “Any . . . decree . . . may hereafter be modified, set aside or vacated prior to the expiration of thirty days from the date of its rendition or in pursuance of a motion made within such thirty days . . .” Plaintiffs argue that a decree is rendered within the meaning of the above section when the court pronounces judgment, and that the 30-day period during which a motion to vacate must be filed commences to run from the date when the decree is ordered and not from the date when the decree is filed with the clerk.

Although the rule with reference to judgments at law is that such judgments become effective as soon as they are pronounced by the court, it appears that a different rule is applied to decrees in chancery. This distinction is pointed out in the case of Horn v. Horn, 234 Ill. 268, at page 274, wherein the court says: “In ordinary judgments following a fixed form the clerk writes the record, but in decrees fixing the rights of parties and giving relief in chancery it has always been the practice in this State for the solicitor who obtains the decree to write it. out and when approved by the chancellor it is recorded. It has never been the practice or regarded as the duty of the clerk to draw decrees in chancery, but only to record them when drawn by the solicitor in whose favor the decree is pronounced and approved by the chancellor; and such approval is authority to the clerk to enter the decree of record. (Stevens v. Goffeen, 39 Ill. 148; Schneider v. Seibert, 50 id. 284; Hughs v. Washington, 65 id. 245.) It is not necessary that the decree should be signed by the chancellor, but its entry on the record by the clerk gives it validity. (Dunning v. Dunning, 37 Ill. 306.) A decree is not final, but is subject to change or modification until it is approved and filed for record.” (See also Cameron v. Clinton, 259 Ill. 599.)

It is our conclusion that the motion to vacate, which was made within 30 days after the decree was actually filed with the clerk, was made within apt time, and this being the case the decree did not become final for the purpose of an appeal until such motion was disposed of on October 7,1941, which was less than 90 days prior to the filing of the notice of appeal. (Lenhart v. Miller, 375 Ill. 346.)

Plaintiffs also ask that the appeal be dismissed because of the alleged insufficiency of the defendants’ abstract and the alleged lack of any assignment of errors in the defendants ’ brief. The abstract filed by defendants was not sufficient to cover all of the points raised by the present appeal, but plaintiffs in accordance with the rules have filed an additional and corrected abstract of the record which remedies this deficiency. While it is true that defendants have not filed any formal assignment of errors, they have set forth their objections to the decree under the heading of “Theory of the Case.” If the errors complained of are sufficiently set forth, it is not necessary that a formal assignment of errors be made. (Moore v. Monarch Distributing Co., 309 Ill. App. 339.) We find no merit in any of the contentions made by plaintiffs in their motion to dismiss and the motion is denied.

Defendants raise two objections to the decree below: (1) That the complaint failed to state a cause of action; (2) That the decree “does not agree with and fails to support” the complaint, in that the chancellor improperly considered a decision adverse to defendants in a certain chancery case (No. 3757) as being an estoppel by verdict on certain issues herein, although that case was not pleaded by plaintiffs in their complaint.

The complaint is very informal, but, in our opinion, it did inform the defendants of the nature of the claim which they were called upon to meet, and under section 42 (2) of the Civil Practice Act (ch. 110, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.042]) that is the essential test. The defendants filed a lengthy motion to dismiss, but did not specifically point out the defects they argue here, as they were required to do under section 42 (3) of the Civil Practice Act.

We think there is no merit in the second objection. Plaintiffs filed a complaint for reformation and possession. Defendants filed an answer and a counterclaim. The counterclaim claimed the property as the property of the defendants, and asked that the sheriff’s sale and deed be set aside and held ineffective for alleged irregularities in the sale. To this answer and counterclaim plaintiff filed what they call a “reply. ’’ By paragraph 24 thereof they attempted to answer the counterclaim, and the answer was that all those claims of irregularity in the sheriff’s sale had been adjudicated against defendants in chancery case No. 3757 which defendants had theretofore filed against the original judgment creditor (who was also the purchaser at the sale) and against the sheriff who had conducted the sale. This was a proper defense to be pleaded to the counterclaim. Although included in a “reply” it actually was an “answer” to the counterclaim. Section 32 of our Civil Practice Act provides that: “When new matter by way of dufense or counterclaim is pleaded in the answer, a reply shall be filed by the plaintiff. ’ ’ Section 43 (4) provides that: ‘ ‘ The facts constituting any affirmative defense, such as . . . estoppel . . . and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the . . . defendant’s counter-claim, in whole or in part . . . must be plainly set forth in the . . . reply. ’ ’ The complaint, when aided by pleadings of the defendants, the statute on Amendments and Jeofails, and by intendment after verdict, is sufficient. These things we may, on appeal, consider to aid the decree. (Cottrell v. Gerson, 371 Ill. 174,179.) In our opinion the defense to the counterclaim was sufficiently pleaded, and the evidence in support thereof was proper for the consideration of the chancellor on that issue. The decree limits its application to that issue.

Considering the length of time this litigation has been before the courts, and the doubtful interest of the defendants in the property, we are 'not disposed to reverse this case on the theory the pleadings were so vague as not to inform the defendants of the nature of the claim they had to meet.

Judgment affirmed.