text:
    B. A. Railton Company, appellee, v. Jack Kearns and Jack Kearns, Inc., appellant.
    Gen. No. 39,541.
    Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    Rehearing denied November 1, 1937.
    Marston, Friedlund & Friedlund, for appellant. Lloyd M. Brown and Thomas J. Walsh, for appelle.e.
   Mr. Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Benjamin B. Morris, appellee, v. Carl Ekstrom, appellant.
    Gen. No. 39,573.

      Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    James B. McKeon, for appellant. Benjamin B. Morris, pro se.

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Costenzia Costa, appellee, v. Order Sons of Italy in America, appellant.
    Gen. No. 39,582.
    Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    Rehearing denied November 1, 1937.
    Peter V. Fazio, for appellant. Peter D. Giachini, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Lillian Marguerite Spencer, appellee, v. Chicago City Railway Company and Chicago Railways Company, appellants.
    Gen. No. 25,621.
    Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    Rehearing denied November 1, 1937.
    Brown, Fox & Blumberg, for appellants; Frank L. Kriete and Charles Le Roy Brown, of counsel. Crahen, Sullivan, O’Toole & Sullivan, for appellee; Robert F. Kolb, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Andrew L. Halleman, appellee, v. William G. Allen et al. appellants.
    Gen. No. 39,447.
    Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    George T. Murphy, for appellants. Harry A. Biossat, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Max Fiegen, appellee.
    Gen. No. 39,561.
    Heard in the first division of this court for the first district at the June term, 1937.
    Opinion filed October 18, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. Joseph W. Schulman, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Friend

text:
    In re Estate of Lorenz Stahl, deceased. Elsie Meyers and Anna Carlson, appellants, v. Anna Stahl et al., appellees.
    Gen. No. 39,391.
    Heard in the second division of this court for the first district at the February term, 1937.
    Opinion filed October 19, 1937.
    Leopold Saltiel, for appellants. No appearance for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Walter Kemp, receiver in equity for Midland Club, appellee, v. Benjamin H. Black, appellant.
    Gen. No. 39,405.
    Heard in the second division, of this court for the first district at the April term, 1937.
    Opinion filed October 19, 1937.
    Rehearing denied November '8, 1937.
    Benjamin H. Black, pro se. Aaron Soble, of appellee; Max Chill, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    American Russian Brotherhood and Sisterhood, appellee, v. Vasilij W. Sklar and Sofia Sklar et al., defendants. Appeal of Vasilij W. Sklar and Sofia Sklar, appellants.
    Gen. No. 39,554.
    Heard in the second division of this court for the first district at .the June term, 1937.
    Opinion filed October 10, 1937. .
    B. Pelechowicz and Martin M. Gross, for appellants. Grablowski & Kanak, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    People of the State of Illinois, appellee, v. Dan Miller, appellant.
    Gen. No. 39,583.
    Heard in the second division of this ’court for the first district at the June term, 1937.
    Opinion filed October 19, 1937.
    Charles A. Bellows, for appellant. Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, John T. Gallagher, Melvin Starkle Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Edwin Hamilton, appellant, v. Thomas J. Grady, appellee.
    Gen. No. 38,285.
    Heard in the second division of this court for the first district at the June term, 1935.
    Opinion filed October 19, 1937.
    Hortsman, Linder, Pelnar & Bernard, for appellant. Max Murdock and Robert McCormick Adams, for appellee; Ross Langdon, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frances Prihodski, administratrix of estate of Felix Gurrister, deceased, appellee, v. Atchison, Topeka and Santa Fe Railway Company, appellant.
    Gen. No. 38,971.
    Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed October 19, 1937.
    Rehearing denied November 2, 1937.
    Emmet Trainor and F. W. Miller, for appellant; Charles H. Woods, of counsel. Charles E. Carpenter, for appellee; John C. Melaniphy, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    George A. McKinlock, appellee, v. 205 West Jackson Building Corporation, appellant.
    Gen. No. 38,996.
    Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed October 19, 1937.
    Rehearing denied November 2, 1937.
    Samuel A. & Leonard B. Ettelson, for appellant; Samuel A. Ettelson, Edward C. Higgins and Leon R. Gross, of counsel. Defrees, Buckingham, Jones & Hoffman, for appellee; Richard Yates Hoffman and Chas. O. Butler, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr, Justice Scanlan

text:
    Anita Fishman, appellee, v. Edith E. Slack et al., defendants. Edna Harris Smith, appellant.
    Gen. No. 39,217.
    Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed October 19, 1937.
    Rehearing denied November 2, 1937.
    Heber T. Dotson and Dewey W. Ragan, for appellant; Heber T. Dotson, of counsel. Epstein & Epstein, for appellee; Bernard Epstein and Morris D. Spiegel, of counsel.
   Mr, Justice Scanlan

delivered the opinion of the court.


text:
    Frank E. Scholl, appellant, v. Percy L. Tallman et al., appellees.
    Gen. No. 39,326.
    Heard in the second division of this court for the first district at the February term, 1937.
    Opinion filed October 19, 1937.
    Walter E. Moss, for appellant. Eckert & Peterson, for appellees; Tom Leeming, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The First National Bank of Chicago, appellee, v. Harry S. Lorch et al., defendants. Harry S. Lorch and Lorraine Lorch, appellants.
    Gen. No. 39,335.
    Heard in the second division of this court for the first district at the February term, 1937.
    Opinion filed October 19, 1937.
    Blech, Herson & Gordon, for appellants. Packard, Barnes, McCaughey & Schumacher, for appellee; Thomas B. Gilmore, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Albert Izenman, appellee, v. Guy A. Richardson et al., receivers, trading as Chicago Surface Lines, appellants.
    Gen. No. 39,237.
    Heard in the second division of this court for the first district at the December term, 1936.
    Opinion filed October 19, 1937.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel. Thomas M. Morris, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Curtis Hooper, appellant, v. Wabash Automotive Corporation et al., appellees.
    Gen. No. 39,384.
    Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed October 19, 1937.
    Edwin Hamilton, for appellant. George Gillette, Charles F. Grimes, Elmer M. Leesman and Robert F. Munsell, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Peter Weinberg, appellant, v. Guy A. Richardson et al., appellees.
    Gen. No. 39,408.

      Heard in the second division of this court for the first district at the April term, 1937.
    Opinion filed October 19, 1937.
    Royal W. Irwin, for appellant. Frank L. Kriete, Erwin W. Roemer and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Octavia Benton, appellee, v. Clarence Marr, appellant.
    Gen. No. 39,444.
    Heard in the second division of this court for the first district at the June term, 1936.
    Opinion filed October 19, 1937.
    Ellis & Westbrooks, for appellant; Richard E. Westbrooks, of counsel. Braden, Hall & Barnes, for appellee; Zedrick T. Braden, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Second District.
    People of the State of Illinois, appellant, v. Sylvester Romanowski, appellee.
    Gen. No. 9,197.
    Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    Charles E. Mason and Okel S. Fugua, for appellant; Sidney H. Block, of counsel. J. A. Miller, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Jessie A. Gardner et al., appellants, v. James T. Wolfe and Straus Securities Corporation, appellees.
    Gen. No. 9,224.
    Heard in this court at the May term, 1937. Reversed and remanded.
    Opinion filed June 30, 1937.
    Rehearing denied October 7, 1937.
    Frank E. Maynard and George T. Liddell, for appellants; Frank E. Maynard, of counsel. Hall & Dusher, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    C. W. Turner, appellant, v. Elvira Essington, appellee.
    Gen. No. 9,229.
    Heard in this court at the May term, 1937.

      Opinion filed June 30, 1937.
    Rehearing denied October 7, 1937.
    Eva L. Minor, for appellant. Irwin C. Taylor, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Lona Hodgett, appellee, v. Fremont Bates, appellant.
    Gen. No. 9,186.
    Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    James H. Andrews, Gregg A. Young and Harper Andrews, for appellant. Thomas J. Welch and Vera M. Binks, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    J. L. Jones et al., appellants, v. Belle N. Horrom et al., appellees.
    Gen. No. 9,204.
    Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    Walter C. Overbeck, for appellants. Miller, Elliott & Westervelt, for certain appellees; John D. Thomason, of counsel. George W. Hunt, T. C. Waterous and Charles P. Green, for certain other appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Federal Land Bank of St. Louis, appellee v. Myrtle Love et al., appellants.
    Gen. No. 9,220.
    Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    W. H. Dyer and Eben B. Gower, for appellants. No appearance for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Harry Reams, appellee, v. Fredman Brothers Furniture Corporation, appellant.
    Gen. No. 9,227.
    Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    Rehearing denied October 7, 1937.
    Todd, Morgan, Pendarvis & Arber, for appellant. Henry E. Pratt and Roy P. Hull, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court,


author: Mr. Presiding Justice Huffman

text:
    Orrin J. Graham, appellant, v. John Carlson, appellee.
    Gen. No. 9,215.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Rehearing denied October 7, 1937.
    J. E. Goembel and B. Jay Knight, for appellant; Perley T. Lupton, of counsel. Frank E. Maynard, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Herman Derner, appellee, v. John J. Morton, appellant.
    Gen. No. 9,216.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Eli D. Langert, for appellant. Huber & Reidy, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Ethel McClary, administratrix of estate of Amel W. McClary, deceased, appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, appellant.
    Gen. No. 9,189.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Gower, Gray & Gower and W. H. Dyer, for appellant. Frank J. Burns and James T. Burns, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Frank L. Firman, administrator of estate of Frank P. Firman, deceased, appellee, v. Julius Duyvejonck et al., appellants.
    Gen. No. 9,219.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Kenworthy, Shallberg & Harper, for certain appellant. Schriver & Schriver, for certain other appellants. Franklin P. Searle, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Lena Edson, executrix under last will and testament of Ole Edson, deceased, appellant, v. Chicago and Northwestern Railway Company, appellee.
    Gen. No. 9,174.
    Heard in this court at the February term, 1937.
    Opinion filed September 9, 1937.
    Roy F. Hall and Alexander J. Strom, for appellant. William L. Pierce, Nelson J. Wilcox and Nelson Trottman, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    J. C. Proctor Lumber Co., appellant, v. Midwest Investment and Finance Company et al., appellees.
    Gen. No. 9,213.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Charles A. Wesner, for appellant. William H. Moore, Verle W. Safford and London Middleton, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    James Marsh, appellee, v. National Lock Company and F. G. Hogland, appellants.
    Gen. No. 9,173.
    Heard in this court at the May term, 1937.
    Opinion filed September 27, 1937.
    William L. Pierce and Hall & Dusher, for appellants. B. Jay Knight and J. E. Goembel, for appellee; Perley T. Lupton, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Third District.
    Arthur L. Fogelman, administrator of estate of Madeline Fogelman, deceased, appellee, v. Steve Christoff, appellant.
    Gen. No. 9,005.
    Heard in this court at the October term, 1936.
    Opinion filed April 16, 1937.
    Rehearing denied and modified opinion filed October 5, 1937.
    Dryer, Brown & Poos, for appellant. Stuttle & Godfrey and Hill & Buffington, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Arnot Meek, appellee, v. Eldred Drainage and Levee District, appellant.
    Gen. No. 9,003.
    Heard in this court at the January term, 1937.
    Opinion filed April 16, 1937.
    Rehearing denied October 5, 1937.
    F. A. Whiteside and Clement L. Smith, for appellant; Wm. G. Vogt, of counsel. Paul M. Hamilton and Gilbert K. Hutchens, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Per Curiam.

text:
    James Howat et al., appellants, v. International Union United Mine Workers of America et al., appellees.
    Gen. No. 9,038.
    Heard in this court at the January term, 1937.
    Opinion filed April 16, 1937.
    Rehearing denied October 5, 1937.
    George W. Dowell and Nobel Y. Dowell, for appellants. Thurlow G. Lewis, Charles Schaefer and Gillespie, Burke & Gillespie, for appellees.
   Per Curiam.


author: Mr. Justice Murphy

text:
    Fourth District.
    Thelma Enloe, appellee, v. American Family Protection, Inc., appellant.
    Heard in this court at the October term, 1936.
    Opinion filed June 3, 1937.
    Meyer & Meyer, for appellant. Hoiles & Sharp, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Presiding Justice Fulton

text:
    George L. Klein, Appellee, v. Henry Rees et al., Appellants.
    Gen. No. 9,045.

      Opinion filed October 15, 1937.
    Inghram & Inghram, of Quincy and White & Hawxhurst, of Chicago, for appellants; John T. Inghram, Jr., of Quincy and Homer C. Dawson, of Chicago, of counsel.
    Charles L. Bartlett, of Quincy, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This was an action at law brought by the appellee against the appellants to recover amounts due under a written guaranty covering certain defaulted bonds formerly owned by appellants. The case was decided on the pleadings the substance of which are herewith stated.

Appellee’s second amended complaint alleged that on February 2, 1928, the appellants owned three certain bonds issued by Weller Creek Drainage District and by the Village of Mt. Prospect of Cook county, Illinois; that on said date the appellants executed and delivered to the Quincy Bicker National Bank & Trust Company, a written instrument called a guaranty, addressed to the bank, stating in substance that appellants were the owners of the aforesaid bonds, among others; that they were desirous of selling said bonds to the bank and in consideration of the bank’s purchasing from the appellants and paying therefor the appellants would save and keep the bank harmless from any loss, expense and attorneys fees that the bank, its successors and assigns, might be obligated to pay by reason of the bank purchasing said bonds, or either of them, or of the bank’s successors and assigns purchasing from the appellants, or in any other lawful manner becoming the owner of said bonds. The appellants did further guarantee to the bank and its successors and assigns the payment of each of said bonds, together with interest thereon and all costs, expenses and attorney’s fees that might accrue, or be, or become payable, or incurred in connection with the ownership thereof, and that a sale by the bank of said bonds without recourse would not affect the liability under the guaranty; also, that all demands, notices and extensions of payment were waived.

It was further alleged in the complaint that the bank accepted said guaranty; that on or about February 2, 1928, the bonds were assigned and delivered to the bank pursuant to the terms of said guaranty; that thereafter the appellee, relying upon said guaranty,purchased from, and paid, the bank for said three bonds, the said bank then being the owner of said bonds.

The complaint also alleged that after the execution of said guaranty and relying thereon appellee bought said three bonds from the bank acting as the agent of appellants, the appellants then being the owners of said bonds and the bank then being the agent of appellants in selling and receiving payment for said bonds; that the bank with the permission and knowledge of appellants used said guaranty as an inducement to appellee to purchase said bonds; that the bank with the permission and knowledge of appellants represented that the bonds were guaranteed by appellants, and that relying thereon appellee bought said bonds and paid therefor to the bank a valuable consideration which, less deductions, was paid by the bank to and knowingly accepted by appellants; that appellants received valuable consideration from the appellee for said bonds; that appellee now owns said bonds, all of which are in default, and appellee demands from appellants the principal and interest thereon, plus costs, expenses and attorney’s fees.

It is claimed by appellee that his complaint is based upon three separate theories: First, that the bonds enumerated in the guaranty were sold to the bank, and payment thereof guaranteed by appellants, and subsequently sold by the bank to appellee to whom the guaranty, under its terms, would inure. Second, that the bank was acting as agent for appellants for the sale of the bonds and sold them to appellee as bonds guaranteed as to payment by appellants with their knowledge and authority. Third, that appellee purchased the bonds from the bank under circumstances which in substance rendered appellants liable on the ground of estoppel.

After a motion by appellants to dismiss said second amended complaint had been denied, the appellants filed an answer, which in brief denied that they executed and delivered to the bank any instrument in writing guaranteeing said bonds; denied that the instrument declared upon is a contract of guaranty, but on the contrary constituted only an offer or proposal to sell the bonds to the bank and to guarantee them on the express condition that the offer would be accepted and that the bank would purchase the bonds; alleged that the offer or alleged guaranty was never accepted and that the bank never purchased the bonds, and denied that the conditional guaranty ever became effective and averred that the alleged consideration was never paid and wholly failed; denied that the bonds were ever assigned and delivered to the bank pursuant to the terms of the alleged guaranty; denied that the appellee confided in, and relied upon, the alleged guaranty in the purchase of said bonds; denied that the bank was, or ever had been, the owner of said bonds or any of them; denied that the bank used the alleged guaranty as an inducement for appellee to purchase any of said bonds, with the permission and knowledge of the appellants; and denied that the bank, with the permission and knowledge of appellants, represented to the appellee that the payment of said bonds was guaranteed by appellants; denied that the appellee relied upon said alleged guaranty or any alleged representations of the bank; and denied that the appellants were induced by any such alleged representations to purchase said bonds; and then the answer averred that the bank refused and declined to accept the proposed guaranty and refused to purchase the bonds or any of them; and that thereafter an oral agreement was entered into under which the bank undertook to sell the bonds as agent for the appellants at a certain price with a commission to the bank for its services in such selling; that the proceeds of sales as made, should be turned over to the appellants and that the entire lot of bonds remaining unsold should be returned to the appellants upon demand; that the bank had no authority as agent to guarantee the payment of said bonds as to principal or interest or otherwise ; that no consideration was ever paid by the bank for said alleged guaranty; that there is an absolute failure and lack of consideration therefor. The answer further denied, in paragraph IX, that the appellants received any consideration from the appellee for said bonds. Then the answer denied that the appellee is entitled to recover anything from appellants; denied that appellants are liable to appellee for the principal and interest on the bonds or for any costs, expenses, damages and attorney’s fees; and denied that appellee is entitled to any judgment whatever in the premises.

The court sustained appellee’s motion to strike said answer and did strike the same, whereupon appellants elected to stand on said answer. The case was thereafter heard by the court as a default matter and a judgment entered for the appellee.

The question raised on this appeal is as to the sufficiency of appellants answer as above set forth. Section 33, H 1 of the Practice Act, Ill. Rev. Stat. 1937, ch. 110, §157; Jones Ill. Stats. Ann. 104.033, provides that, “All pleadings shall contain, a plain and concise statement of the pleaders cause of action, counterclaim, defense or reply.” Paragraph 3. “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.”

Adopting the appellee’s own statement of the separate causes of action set forth in his complaint he says that: First, the bonds enumerated in the guaranty were sold to the bank and payment thereof guaranteed by appellants, and subsequently sold to appellee by the bank to whom, the guaranty, under its terms would inure. The appellants have answered this charge by not only denying all the material averments in the complaint covering such charge but further averring that the written instrument constituted an offer or proposal to sell- the bonds to the bank and to guarantee them on the express condition that the offer would be accepted and that the Bank would purchase the bonds; that the offer was not . accepted and that the bank never purchased the bonds; that the bank has never been the owner of the bonds or any of them; that the bank refused and declined to accept the proposed guaranty and refused to purchase the bonds or any of them; that subsequently and thereafter an oral agreement was entered into, under which the bank undertook to sell the bonds as agent for the appellants at a certain price, with a commission to the bank for its services in such selling; that the proceeds of sales as made should be turned over to the appellants and that the entire lot of bonds remaining unsold should be returned to the appellants upon demand.

Appellee insists that such denials and averments were conclusions of the pleader, were surplusage, unresponsive and immaterial. While the criticism may be true as to some of the statements and averments in the answer, it appears to us that the direct denials of the material allegations of the complaint, the averments that the bank never purchased the bonds, refused and declined to enter into the proposed guaranty; that a different and subsequent oral agreement was entered into between the bank and appellants whereby the bank undertook to sell the said bonds as an agent under different terms or conditions, all raise an issue of fact on which the appellants were entitled to a trial by a court or jury.

The same situation exists as to appellee’s second claimed cause of action which asserts that the bank was acting as agent of appellants for the sale of the bonds and sold them to appellee as bonds guaranteed as to payment by appellants with their knowledge and authority. In addition to the statements above set forth and relying on the subsequent oral agreement appellants say that the bank had no authority as agent to guarantee the payment of said bonds as to principal or interest or otherwise, had no right to use the written instrument as an inducement for appellee to purchase any of said bonds and never used the same in that respect with the permission and knowledge of any or all of the appellants. These averments raise further issues of fact which entitled the appellants to a hearing.

The same reasoning can be used with reference to appellee’s alleged third cause of action claiming an estoppel. Direct and specific denials appear in the answer. If appellee’s motion had been directed to specific portions of the answer a different question would be presented.

The appellee contends that the case was not heard as a default matter and that therefore the evidence submitted by him at the hearing should be considered by this court on appeal. The record shows that on motion of appellee the court struck the answer of appellants from the files as insufficient on January 24, 1936, and that on July 31, 1936, the appellee submitted his testimony, and secured judgment for the sum of $2,990.26. There being no answer then on file in behalf of appellants the trial was necessarily ex parte.

The basis of this appeal, as we understand it, was from the order of the court entered on January 24, 1936, striking the answer of appellants from the files and entering a rule upon them to file an amended answer by January 31, 1936. The appellants elected to stand on their answer, tendered their interlocutory bill of exceptions, which was certified by the trial judge. Under these circumstances the testimony taken six months later cannot be considered on the question before us on this appeal. The trial judge did not have any such evidence before him when he passed upon the sufficiency of the answer and the question of whether the answer stated a defense is the only one considered on this appeal.

Believing as we do that the answer of appellants raised certain issues of fact material to the determination of this cause, which entitled them to a trial before the court, the judgment of the circuit court is reversed and remanded for further proceedings and a trial in accordance with the views herein expressed.

Reversed and remanded.


text:
    Fred C. Towson, Plaintiff, v. Minnie E. Smith, Appellee. Sidney F. Smith, Appellant.
    Gen. No. 9,063.
    Opinion filed October 15, 1937.
    Bedmoh; Bedmoh & Bodman, of Decatur, for appellant.

      F. B. Wiley and C. C. Martin, of Decatur, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

In this case a complaint was filed by Fred C. Towson in the nature of an interpleader. He alleged that he had purchased certain farm lands from Jacob F. Smith; that he took title to the same by warranty deed, executed by the said Jacob F. Smith, a widower; that the purchase price for said real estate was $8,800, and as part payment for the same he gave his note for $7,000, secured by a mortgage upon the land purchased; that afterwards he paid $1,000 of the principal of the said note and also paid some interest on the same. The complaint further alleged that Minnie E. Smith, the appellee, at the time of the filing of the said complaint was in possession of the note and mortgage and that she claimed ownership of the same; that the said Jacob F. Smith died intestate on or about June 27, 1935, leaving two children, the appellee Minnie E. Smith and the appellant Sidney F. Smith, as his sole and only heirs at law. The complaint further recited that on February 27, 1936, letters of administration on the estate of Jacob F. Smith were issued by the county court of Macon county, Illinois, to-Sidney F. Smith, and that Sidney F. Smith is now acting as administrator of said estate; that as such administrator, the said Sidney F. Smith also claims ownership of the said mortgage and note and demands that payment of interest and principal be made by the plaintiff to him as such administrator.; that plaintiff desires to pay said note and the interest thereon and asks this court upon a hearing to determine which one of the defendants is the owner of and entitled to receive the money in payment of said mortgage and noté.

The appellee, Minnie E. Smith, filed an answer to said complaint and after admitting the undisputed allegations averred that prior to the time when the real estate was sold to the complainant, the said Jacob F. Smith had conveyed the said real estate to her, by a deed, which had not been recorded; that after the execution of the note and mortgage by the said plaintiff, the said Jacob F. Smith had assigned them to her by written assignment and that she, the said appellee, had been in possession of them ever since as the owner thereof.

The appellant Sidney F. Smith also filed an answer in which he denied that the said Jacob F. Smith ever delivered the mortgage note to the appellee Minnie E. Smith during his lifetime and in said answer he averred that he was entitled to the note and mortgage as administrator of the estate of the said Jacob F. Smith, deceased; and that he had an interest in the proceeds of the said note as an heir at law of the said Jacob F. Smith. A replication denying these allegations was filed by the appellee Minnie E. Smith: The replication recites that the said Jacob F. Smith assigned, transferred and delivered the note and mortgage to her.

After the issues were thus formed the court entered a consent decree in and by which the amount due upon the note in question for principal and interest, to wit, $6,150, was ordered to be paid to the clerk of • this court by the plaintiff Fred C. Towson, in discharge of said mortgage indebtedness and that said money be held by the clerk to abide the further order and decree of the circuit court as to the ownership thereof, and the right to receive the same as between the parties to this suit.

The facts introduced in evidence show that the appellee Minnie E. Smith, offered in evidence the note, mortgage and the written assignment of the mortgage. Subsequently, Mrs. Susan Nichols, an aunt of both the appellant and the appellee, and a sister of the decedent Jacob F. Smith, testified that the note, mortgage and assignment were brought to Mr. Smith’s residence in May, 1935, by a notary public, Clyde Young, and that he, Mr. Young, delivered the papers to the appellee, Minnie E. Smith; that afterwards she and the said Minnie E. Smith examined the papers and that they were the three instruments offered in evidence. For the appellant, Sidney F. Smith, the notary public, Clyde Young, stated that when he delivered the mortgage and the assignment to Minnie E. Smith he did not deliver the note. He stated later in his testimony that he saw the note afterward in the possession of Minnie E. Smith about the time of the death of Mr. Smith or while he was in the hospital.

The court found that the assignment was a good and valid one and that such assignment conveyed all right, title and interest in the mortgage and note to Minnie E. Smith. The decree ordered that the money in the hands of the clerk be paid to the said Minnie E. Smith. The appellant has prosecuted this appeal to reverse the judgment and decree of the circuit court.

It is the contention of appellant that the appellee, Minnie E. Smith, could not be the legal owner of the note because there was no transfer of the instrument which complied with the requirements of secs. 50 and 51 of ch. 98 of Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 89.050, 89.051. Section 50 reads as follows:

“An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof; if payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder, completed by delivery.”

Section 51 provides:

“The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement, and the addition of words of assignment or guaranty shall not negative the additional effect of the signature as an indorsement, unless otherwise expressly stated.”

In this case there was no indorsement by Jacob F. Smith on the back of the note. The appellee was neither the payee nor the indorsee of the note, and it was not payable to bearer. Under this state of facts appellant urges there was no proof of delivery and the decree of the court contained no such finding. He urges that the trial judge did not find questions of fact adverse to appellant but that he merely held in the decree that the assignment of the mortgage carried the note with it as a matter of law. He relies chiefly upon the case of Elvin v. Wuchetich, 326 Ill. 285, wherein the court stated: “The endorsement of commercial paper requires, not only the signature of the payee or other holder of the legal title but the delivery of the instrument to the endorsee.” “It was essential to the plaintiff’s right to recover to show that at the commencement of the suit he had the legal title to the notes secured by the chattel mortgage.”

That case was a replevin action. The defendant gave a chattel mortgage and notes to the Red Ball-Transit Company. The mortgage was assigned to the United States Motor Truck Company, and this company executed an assignment, which purported to assign the mortgage and the notes secured thereby to the plaintiff. At the trial the plaintiff produced the notes, but they were not properly indorsed and there was no proof of delivery. The court held that the mortgage could not be considered the property of the plaintiff unless the notes also belonged to the plaintiff, and the mere possession by the plaintiff at the time of the trial was not sufficient. In that case however, the plaintiff was not shown ever to have been in possession of the notes. The Red Ball Transit Company was the payee, and the uncontradicted evidence in the record showed that it had at all times been in possession of the notes. The bookkeeper of the Bed Ball Transit Company testified that the notes were still in the possession of that company, and that the company having possession of them had charged the defendants on its books with the interest accruing on them and the insurance on the truck purchased continuously, not only to the beginning of the suit but afterwards. For this reason the court held the plaintiff was neither the legal or equitable holder of the notes secured by the mortgage, and had failed to prove title to them.

In this case no such situation is presented. On the trial the appellee appeared with the note, mortgage and assignment in her possession, and offered all three in evidence. In addition thereto, the oral evidence of Susan Nichols was taken. She was an aunt of both the appellant and appellee. She testified positively that she was present at the time Young delivered the note, mortgage and assignment to the appellee; that after Young left, she and Minnie E. Smith examined the instruments. As against this testimony the appellant called Young, who acknowledged the assignment, and he stated that he did not deliver the note at the time the assignment and mortgage were delivered. He admitted, however, that he did see the note in the possession of Minnie E. Smith at the time her father was in the hospital. We do not agree with appellant that the testimony of Mrs. Nichols should be wholly disregarded. As between her evidence and that of Young we would say that she appeared to be much more certain about the facts she testified to than Young. At least the trial court on the hearing had the opportunity of seeing, hearing and observing the two witnesses on the stand and giving each such consideration as they were entitled.

We believe the testimony in this case warranted the court in finding that the assignment was a good and valid assignment and that such assignment under the proof in this case conveyed all the right, title and interest in the mortgage and note to Minnie E. Smith and that the title to the same was in the said appellee.

For the reasons set forth the decree of the circuit court is affirmed.

Affirmed.


text:
    Ruth Graham, Appellee, v. Elmer Dressen and Helen McDermott, Appellants.
    Gen. No. 9,050.

      Opinion filed October 15, 1937.
    Le Forges, Samuels & Miller, of Decatur, for appellants ; William W. Dunn, of counsel.
    Vail, Mills & Armstrong, of Decatur, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

A complaint was filed by Ruth G-raham, plaintiff appellee, in the circuit court of Macon county by which she sought to recover damages from Elmer Dressen, defendant appellant, for injuries alleged to have been caused by the negligence of said defendant in the operation of his automobile. The defendant filed an answer and counterclaim. Helen McDermott, who was in the car of defendant at the time of the alleged accident, was permitted to become a party defendant and filed a counterclaim. A trial resulted in a verdict in favor of plaintiff and against the defendant, Elmer Dressen, for the sum of $5,000. The court at the close of the evidence directed a verdict in favor of plaintiff on the counterclaims of the defendants, and no question is raised on this appeal relating to said counterclaims.

The errors relied upon for a reversal of said judgment are that the court erred in denying appellants’ motion to exclude the evidence of appellee as to the medical and hospital expenses because there was no proof that the charges were the reasonable and customary charges for the services rendered; that the verdict is against the manifest weight of the evidence; and that instructions numbered one, two, three, four, five, nine and ten, were improper instructions.

The evidence discloses that Jacqueline Noblet, a supervisory parole agent for the State of Illinois, with an office and residence at Springfield, was an old acquaintance of Ruth G-raham, plaintiff, who was a guest of Mrs. Noblet.

It became necessary for Mrs. Noblet, in the performance of the duties of her office, to go to Marion, Illinois, to pick up a girl who had escaped from the Lincoln State School and Colony at Lincoln, Illinois. Appellee accompanied her. On the return trip from Marion they went to Decatur and turned left on Route 121 and proceeded in a westerly direction towards Lincoln. Mrs. Noblet was driving, and Miss Graham and the girl were in the back seat, Miss Graham sitting on the right and the girl on the left. At the intersection of Route 121 with the first north and south township road, east of Warrensburg and about a mile south of Warrensburg, a collision occurred between the car of Mrs. Noblet and a car of Mr. Dressen. It was about 8:30 in the evening. The car of Mrs. Noblet was struck in front of the right rear wheel and it came to rest on its side in the ditch on the left side of the pavement. The car of the defendant Dressen came from the right on the dirt road, and did not stop. There was a stop sign on this township road, north of the hard road.

Mrs. Noblet testified that Mr. Dressen said he didn’t see me, that he did not realize he was driving so near a State road; he said he did not stop. This testimony was not denied by defendant Dressen, although Helen McDermott testified that he did not say he did not know there was a hard road there and did not say he had not stopped.

Mrs. Noblet was driving a 1934 Chevrolet coach which was fully equipped with lights and the lights were on. She testified that as she approached the intersection she noticed lights. She was traveling at about 40 miles per hour and accelerated her car. The car was within a distance of a shoulder from her before she noticed it. The evidence further shows that there were marks on the edge of the pavement. They were dark and extended back from the edge of the pavement on the loose gravel in the township road 18 or 20 feet and not over three feet on the pavement. Appellant Dressen testified that after he turned south on the dirt road he moved his spotlight up and down over to the right side of the road. He saw the lights of another car to his left, which was 400 to 600 feet from the intersection. The car was going from 50 to 60 miles per hour. As soon as he realized the road was in front of him he applied his brakes and cramped the wheels to the west.

Appellants contend the testimony of appellee conclusively shows that she was not in the exercise of due care for her own safety. The question of due care on the part of plaintiff is always a question of fact to be submitted to the jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on his part. In considering the question of due care on the part of the plaintiff it is well to remember that this cannot always be shown by direct proof but the evidence as adduced by the plaintiff should disclose facts from which it may reasonably be inferred that he was in the exercise of due care. Blumb v. Getz, 366 Ill. 273.

There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger. In the variety of circumstances which constantly arise, it is impossible to announce such a rule. The only requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances. Stack v. East St. Louis & Suburban Ry. Co., 245 Ill. 308, 92 N. E. 241.

From the evidence we cannot say that plaintiff was not in the exercise of due care for her own safety or that her conduct was not consistent with that of an ordinarily prudent man under like circumstances.

It was the province of the jury to pass upon all questions of fact. The jury saw and heard the" witnesses testify. A verdict will not be set aside or reversed as against the weight of the evidence unless "clearly and manifestly so. Moore v. Aurora, E. & C. R. Co., 150 Ill. App. 484.

From an examination of the record in this case we are of opinion that the contention of appellants that the verdict of the jury is against the manifest weight of the evidence is without merit.

At the conclusion of appellee’s evidence appellants moved the court to strike the testimony of Miss Graham with reference to the hospital bills and other expenses she testified she paid for the reason no sufficient foundation had been laid for such testimony, and also because there was no testimony as to the reasonableness of the charges made in the bill, and because there was no testimony as to the reasonableness of the charges as contained in the different items she testified to. The testimony as to Dr. Lewin’s bill was admitted to have been properly proven. Appellee testified as to the items paid by her for doctor’s bills, hospital bills, and also as to the item of $500, a bill from Dr. Lewin, upon which she had paid $100; a bill for $730.05 rendered by the Michael Eeese Hospital, $34.50 of which had been paid; and a total of $329.95 had been paid by her, and $1,196.05 was still due.

It will be seen that the motion failed to point out any particular item of evidence which appellants desired to have excluded. The motion should have pointed out the particular items of expense which appellants desired to have excluded. Had the motion been granted the jury would not have known what parts were excluded. Coburn v. Moline, E. M. & W. R. Co., 149 Ill. App. 132; Stout v. Taylor, 168 Ill. App. 410.

The evidence discloses that certain bills testified to by appellee had been paid by her. Proof of payment of the bills by appellee made a prima facie case that the charges were in fact reasonable and it was proper for the jury to consider such items as an element of damages. Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 150 N. E. 276.

Appellants made no objection to this testimony at the time it was introduced, nor did they insist upon an assurance by appellee that the further required proof would be made that the charges testified to were the usual and reasonable charges for services of that character. The motion was only directed as against bills that were paid. Appellants did not seek to have stricken the testimony of the witness, Euth Graham, as to the bills and expenses contracted but not paid. We are of opinion that the court did not err in denying the motion of appellants to strike the testimony. The testimony of appellee, as to doctors’ bills and hospital bills paid, only tended to prove damages and appellants make no claim that the verdict was excessive.

Appellants having* failed to object to such testimony when it was introduced and having failed to move the court to require appellee to assure the court that such testimony would be follqwed up by evidence proving* that the amounts of the bills testified to were the usual and reasonable charges for such services and having* failed to make a proper motion to exclude the testimony can not now urge an objection that might have been obviated, if made at the trial, and that evidence is to be considered and will be given its natural probative effect the same as if, in law, it was admissible. Ingram v. Hammar Bros. White Lead Co., 273 Ill. App. 152; Ascher Bros. Amusement Enterprises v. Industrial Commission, 311 Ill. 258, 142 N. E. 488.

It is insisted by appellants that instructions, numbered four, five, six, nine and ten given on behalf of appellee, were erroneous because there is no evidence in the record upon which to base that part of the instructions referring to medical and hospital expenses and damages. The case of Schmitt v. Kurrus, 234 Ill. 578, 85 N. E. 261, was quoted in part by appellants, as follows: “In order to recover for medical and surgical services and treatment it was necessary for the plaintiff to prove two thing’s: First, that he had paid, or became liable to pay, a specified amount; and second, that the charg’es made were the usual and reasonable charges for services of that nature. The first essential fact to be proved was what the plaintiff had paid. The defendants might properly have insisted upon an assurance that the further requisite proof would be made and the court might properly have required such an assurance from the plaintiff, but the evidence was competent when offered and the court did not err in the ruling. ’ ’

Appellants filed a motion for a new trial and under the provisions of sec. 68 (1) of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, §192; Jones Ill. Stats. Ann. 104.068, a party wishing to move for a new trial must file the points in writing, particularly specifying the grounds of such motion. The party is limited to the grounds specified, and all other grounds are deemed to have been waived.

The testimony which the court refused to strike out upon motion of appellants only tended to prove damages, and the part of the instructions complained of related to medical and hospital expenses and question of damages. Appellants in their motion for a new trial did not specify as one of the grounds of such motion that the damages were excessive. In the case of Wolfstein v. Illinois Power & Light Corp., 254 Ill. App. 362, the court said: “It has been expressly held that the point that the verdict is excessive must be stated as one of the grounds so filed or it is waived. Jones v. Jones, 71 Ill. 562; Ottmoa, O. & F. R. Val. R. Co. v. McMath, 91 Ill. 104; McClaren v. City of Gillespie, 250 Ill. App. 53.” It was held in the case of Danley v. Hibbard, 123 Ill. App. 666 (affirmed 222 Ill. 88), that a party cannot complain that the court erred in the rejection of competent evidence which pertained to the amount of the damages where the excessiveness of the verdict was not made one of the grounds for a new trial. So also the propriety of an instruction pertaining solely to the question of damages will not be considered on appeal, if the party complaining did not urge as a ground for a new trial that the damages awarded were excessive. Linck v. Scheffel, 32 Ill. App. 17; City of Paxton v. Frew, 52 Ill. App. 393; Wettrick v. Martin, 164 Ill. App. 273.

It is said by the court in the case of Moore v. Jansen & Schaefer, 265 Ill. App. 459: “Appellee meets this contention with the statement, borne out by the record, that appellant’s motion for a new trial was in writing, and that none of the grounds stated questioned the amount of the damages found by the verdict of the jury.”

Appellants having failed to specify in their motion for a new trial that the damages fixed by the verdict of the jury were excessive, they are not'in a position to question the action of the court in refusing to strike the testimony of appellee relating to the amount of damages, nor the propriety of an instruction pertaining to the question of damages.

Section 33 of the Motor Vehicle Act, in force at the time in question (Cahill’s Ill. Rev. St. 1931, ch. 95a, Ü 34) contained the following provision among others:

“However, paragraph 3 does not apply to the intersection of two of said highways. At such intersections and at intersections of a highway which has been designated by law as one of Routes 47 to 185 inclusive and upon which has been constructed a durable hard-surfaced road with any other highway, the Department of Public Works and Buildings may prescribe such traffic regulations relating to the right of way and boulevard stops as traffic conditions, in the discretion of the department, warrant. Appropriate signs or warning lights shall be erected to give notice of any such traffic regulations.”

Instructions one, two and three given on behalf of appellee informed the jury as to the above provision of the Motor Vehicle Law.

It is insisted by appellants that there is no evidence that the Department of Public Works and Buildings had made any order giving preference to traffic upon Route 121, or that it had erected or was maintaining a stop sign, and for that reason the general statutory provision giving the car to the right the right of way prevailed and governed the traffic at the intersection in question, and that, since there was no evidence in the record that the department of public works and buildings had given preference to the traffic upon Route 121, appellee’s instructions, numbered one, two and three, had no basis in the evidence.

The evidence clearly shows that there was a stop sign on the township road at the intersection and at the time in question. It was the ordinary state sign, yellow with black letters spelling S-T-O-P. It was located about 30 feet north of the edge of the pavement. Herman Herring, employed by the State of Illinois in the State Highway Department, was patrolman on Route 121 from Decatur to Mt. Pulaski and had charge of maintaining the stop signs along Route 121. The act provides that appropriate signs or warning lights shall be erected to give notice of any such traffic regulations.

In the case of Hamann v. Lawrence, 354 Ill. 197, 188 N. E. 333, it was contended by plaintiff in error that the part of the act above quoted was unconstitutional in that it vested legislative authority in the department of public works and buildings, contrary to the Constitution of this State. The court in its opinion, after holding the Act constitutional, also said: “The legislature, by the terms of the Act itself, made the erection of a stop lig'ht or standard stop sign notice of the existence of an exception to the usual rule of traffic as to right of way, and that part of the public traveling in automobiles was required to not only observe but to heed such warning and notice. Evidence of the existence of the standard stop sign at the intersection in question in this case was therefore properly received, and the instructions of the court with reference thereto correctly stated the law.”

The statute having made the erection of appropriate signs or warning lights notice of the existence of an exception to the usual rule of traffic as to right of way, the contention of appellants that there was no evidence in the record that the Department of Public Works and Buildings had given preference to the traffic upon Route 121 is without foundation, and instructions one, two and three given on behalf of appellee are hot erroneous because there was no evidence in the record on which to base such instructions.

Instruction Number Four given on behalf of appellee was as follows:

“The Court instructs the jury that if you believe from a preponderance of the evidence that immediately before, and at the time of the collision complained of, the plaintiff was conducting herself as an ordinarily prudent person would have done under the same circumstances, and that the defendant Dressen carelessly and negligently drove his automobile in such a manner that by reason of such carelessness and negligence his automobile collided with the automobile in which the plaintiff was then and there riding, and that the negligence of the defendant Dressen was the direct and proximate cause of the collision, and that as 'a result of the collision the plaintiff was injured, then it would be your duty to return a verdict for the plaintiff and assess such damages as you believe, from a preponderance of the evidence, she is entitled to.” This instruction is complained of because it is contended that it directed a verdict if the jury believed from a preponderance of the evidence that the appellant drove Ms car in such a negligent manner as to collide with the car in which appellee was riding, and it does not limit the negligence of appellant to that charged in the complaint, and no specific acts of negligence are referred to in the instruction.

Count one of the complaint charges that appellant Dressen so carelessly and negligently operated and drove his said automobile that by reason of such carelessness and negligence his automobile ran into and struck and collided with the automobile in wMch the plaintiff was then and there riding. This instruction limits the negligence of appellant Dressen to that charged in count one of the complaint, and for that reason is not subject to the error alleged against it.

It is further contended that the instruction is erroneous for the reason that the jury were misled to believe that the court assumed appellant was guilty of negligence. There is no merit in the contention that it assumes appellant Dressen was guilty of negligence. The test to be applied to an instruction is, not what the ingenuity of counsel can, at leisure, work out the instruction to mean, but how and in what sense, under the evidence before them and the circumstances of the trial, would ordinary men and jurdrs understand the instruction. Funk v. Babbitt, 156 Ill. 408, 41 N. E. 166.

It is also insisted that the instruction is erroneous for the further reason that it gives the jury too wide a latitude in determining the damages of appellee. This objection was commented upon and referred to in a former'part of tMs opimon.

Finding no reversible error in the record, the judgment of the circuit court of Macon county is affirmed.

Affirmed.


text:
    The Millikin Trust Company et al. (Everett B. Penhallegon, Appellant), Plaintiffs, v. Nora A. Gregory et al., Appellants. William A. Parrish, Appellee.
    Gen. No. 9,054.

      Opinion filed October 15, 1937.
    Fannie A. Bivans, of Decatur, for appellant Everett B. Penhallegon.
    S. S. Clapper, of Moweaqua, for appellants Nora A. Gregory et al.
    E. S. Pares, of Decatur, Guardian Ad Litem for Minor Defendant Appellants.
    Sam W. Gilbert, of Decatur, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

The Millikin Trust Co., trustee, and Mary J. Penhallegon filed a complaint in the circuit court of Macon county to foreclose a trust deed, making Nora A. Gregory, executrix of the last will and testament of James M. Lyon, deceased, and others defendants. The cause was referred to the master in chancery, who took the testimony and reported the same to the court, together with his findings.- The court, upon a hearing of the exceptions of the plaintiffs to the findings of the master, overruled the exceptions and entered a decree in favor of the plaintiffs as to certain lots conveyed by said trust deed but found as to one of the lots that the title was in the defendant, William A. Parrish. This is an appeal by plaintiffs and certain of the defendants from the decree of the circuit court. The only question involved is as to the action of the court in finding- and decreeing that the defendant, William A. Parrish, is the owner in fee simple of Lot 18, free of any lien of said trust deed, said Lot 18 having been conveyed by the trust deed to the Midi kin Trust Co., trustee.

The complaint alleges that on January 2, 1932, James M. Lyon was indebted to the Millikin Trust Co. in the sum of $1,500, evidenced by a note payable to bearer, with interest coupons attached; that, subsequent to the execution of said note and interest coupons, the same were transferred and assigned to Mary J. Penhallegon, and that she was the legal owner and holder thereof; that, to secure the payment thereof, said James M. Lyon on January 2, 1932, conveyed to said trust company, as trustee, Lots 8, 9, 10 and 18 of Heminger Heights, an addition of outlets to the City of Decatur, which trust deed was duly acknowledged and recorded on the 29th day of January, 1932; that on February 26, 1932, James M. Lyon departed this life testate, leaving certain heirs at law, named in the complaint; and on April 1, 1932, letters testamentary were granted by the county court of Macon county to Nora A. Gregory, the complaint making the executrix and the heirs at law of said James M. Lyons, William A. Parrish, and others, defendants.

It is alleged in the complaint that said defendant, William A. Parrish, claimed some interest in, Lot 18, and that plaintiffs are informed that such claim is based upon a loan for $100 secured by deed but that such interest, if any, has been made known since and is subject to the lien of plaintiffs by virtue of said trust deed.

William A. Parrish, by his amended answer, alleged that on January 2, 1932, when said Lot 18 was conveyed to the trust company, he was the owner of said lot by conveyance by warranty deed from James M. Lyon, dated August 18, 1931, and that he took actual, open and visible possession of said lot in' September, 1931, and that said James M. Lyon had no interest in said lot, and denies that his interest in said lot is based upon a loan of $100, secured by a deed. His counterclaim contains the same allegations. A copy of his deed, attached to this counterclaim, contains a certificate of the recorder of deeds, showing that it was filed for record on February 18,1932. By an amendment to his amended answer and counterclaim he alleges that, before the recording of the Millikin Trust Co. deed, he informed and advised said trust company that he owned and had a deed to said Lot 18. The death of Mary J. Penhallegon was suggested and, on motion, Everett B. Penhallegon, executor, was made party plaintiff.

It appearing from the record that William A. Parrish claims title to this Lot 18 through the mortgagor, James M. Lyon, and that he was a proper and necessary party to the foreclosure suit, and, because of that fact, the circuit court of Macon county had jurisdiction to pass upon his rights and settle the same by a decree. Prudential Ins. Co. of America v. Hoge, 359 Ill. 36, 193 N. E. 660.

The contention of appellants is that the mortgage in question was taken without any notice that appellee, Parrish, claimed or had any interest in this Lot 18, and that the records in the recorder’s office failed to disclose any deed from the mortgagor, James M. Lyon, to William A. Parrish; and that although the deed may have been executed and delivered to Parrish on August 18, 1931, the same was not filed for record until February 18, 1932, and that appellants had no notice of such deed and that any rights that Parrish might have in Lot 18 are subject to their rights under the trust deed. It is also contended that the deed was in fact a mortgage to secure the sum of $125 which Parrish had loaned to Lyon.

Appellee ■ Parrish insists that he is the owner of Lot 18, and although the deed was not recorded until February 18, 1932, yet in the month of September, 1931, he took actual, open and visible possession of said lot and was in possession thereof at the time that the trust deed was executed and filed for record. The claim is also made by Parrish that, after receiving the deed to Lot 18, and before the execution and recording of the.Millikin Trust Co. deed, he informed and advised the Millikin Trust Co. that he owned and had a deed to said Lot 18.

We have carefully examined the evidence in the record and are of opinion that it fails to prove the contention of appellants that the deed absolute in form from James M. Lyon to William A. Parrish was intended as a mortgage by the parties. There is evidence in the record that this Lot 18 was of greater value than the expressed consideration of $125. The record also discloses that Lyon went to a Mr. Cobb, a real estate and insurance agent, and wanted to borrow money and that Cobb took him to Mr. Parrish, who said he would be glad to make the loan but that he did not want a mortgage, that Lyon would have to put up a deed with a note as security. Cobb then left the office of Mr. Parrish. The time was not fixed by the evidence of Mr. Cobb. The evidence of appellee Parrish is that he purchased the lot from. Lyon for $125 and got the deed for it. The law is well settled that one claiming that a deed absolute in form is a mortgage, must establish it by clear and convincing proof, and the proof in the record falls far short of that requirement. Williams v. Williams, 180 Ill. 361, 54 N. E. 229; Rankin v. Rankin, 216 Ill. 132, 74 N. E. 763; Kimmel v. Bundy, 302 Ill. 514, 135 N. E. 56.

Herbert Jordan was teller of The Millikin National Bank and was connected with the real estate department of the bank. His testimony discloses that the note and mortgage in question were held by the bank for Mary J. Penhallegon. Mr. Brownback was vice president of the bank, but is now deceased, and he had control of the loaning or making of this mortgage and note. Brownback was also one of the officials of the Millikin Trust Co. The bank had a loan on Lots 8, 9 and 10, due January 2,1935. Mr. Lyon wished to have the loan increased. The new loan included Lot 18, and until that time the bank or Trust Co. never had a mortgage upon that lot. Mrs. Penhallegon purchased the notes on February 9,1932.

The evidence discloses that Mr. Lyon came to Parrish along in October or November, 1931, and wanted to get an abstract that Parrish had, to show Mr. Brown-back. A couple of weeks after that Parrish went over to Mr. Brownback and talked to him about his abstract, and he told him that he had a warranty deed to Lot 18.

Appellants take the position that the plaintiff, Mary J. Penhallegon, now deceased, having purchased the notes and trust deed, recorded in the recorder’s office, showing a good title to Lot 18 in James M. Lyon, even though the defendant, Parrish, having- afterwards recorded the deed from the mortgagor, dated earlier than the trust deed, and the evidence at the hearing of the foreclosure suit disclosing that Parrish had informed an officer of the bank making the loan that he had a warranty deed to said Lot 18, of which communication the plaintiff, Mary J. Penhallegon, knew nothing, such information of the bank would in no way subject the lien of the trust deed to the equities of Parrish in said Lot 18.

The assignee of a mortgage takes it subject only to equities existing in favor of the mortgagor, as against the assignor, and not subject to latent equities in favor of third persons in the subject involved in the assignment of which he had no notice. Silverman v. Bullock, 98 Ill. 11; Himrod v. Gilman, 147 Ill. 293, 35 N. E. 373; Humble v. Curtis, 160 Ill. 193, 43 N. E. 749.

It is said that when resort is had to a court of equity to enforce the obligation created by the mortgage, it will let in any defense which would have been good against the mortgage in the hands of the mortgagee himself, excepting only defenses based on latent equities of third persons of whose rights the assignee had no notice. A mortgage gives notice on its face that the mortgagor is the debtor and if the assignee fails to obtain actual notice of any equities or defenses of such debtor it is due to his own neglect. The assignee is not bound to inquire of third persons whether they have equities, and is presumed to take without notice of any such equities and free from them. Peacock v. Phillips, 247 Ill. 467, 93 N. E. 415.

The equities here involved did not exist in favor of the mortgagor as against the assignor, and for that reason the assignee of the notes and trust deed was not bound to inquire of third persons whether they had any equities, and is presumed to take without notice of any such equities and free from them.

The reason for the rule is, that it is the duty of the purchaser of a mortgage, it not. being assignable so as to vest the legal interest, to inquire of the mortgagor if there is any reason why it should not be paid. He should not be required to inquire of the whole world to see if some one has not. a latent equity which might be interfered with by his purchase of the mortgage. Humble v. Curtis, supra.

There is no merit in the contention of appellee Parrish that the plaintiff Mary J. Penhallegon, assignee, took the notes and trust deed subject to all of the equities, infirmities and defenses of the original parties. There is no evidence in the record to prove that the plaintiff was ever informed that appellee Parrish claimed to Brownback that he had a warranty deed to Lot 18.

Appellee makes the claim that he took actual, open and visible possession of Lot 18 in September, 1931, and that the possession of land is notice to all persons dealing with it of whatever rights the one in possession claims and that such occupancy is equivalent to the recording of the deed.

Possession, before it can be held to operate as notice of an unrecorded deed, must be open, visible, exclusive and unambiguous, such as is not liable to be misunderstood or misconstrued. Robertson v. Wheeler, 162 Ill. 566, 44 N. E. 870. We have considered the proof in the record with reference to the possession of this Lot 18 by appellee and are of opinion that it fails to meet the requirements above set forth.

On behalf of appellee evidence was introduced to prove that in September, 1931, he rented this Lot 18 and that the tenant cut the weeds upon said lot and in late fall the lot was plowed. On behalf of appellants the evidence discloses that it is not true that appellee plowed the lot and did the work which the evidence of appellee tends to prove. That there was no one who worked the lot in 1931 except a Mr. Calbert who farmed the lot that year. Mr. Lyon owned Lots 8, 9, 10 and 18, which were all connected up, and he lived on Lot 10 until the time of his death on February 26,1932. The evidence is contradictory and it fails to prove that any person other than Lyon himself was in possession of Lot 18 in 1931.

For the reasons indicated the decree of the circuit court of Macon county is reversed and the cause remanded with directions to enter a decree in conformity with this opinion decreeing that the premises described in said trust deed, which is sought to be foreclosed in the complaint filed herein, or so much thereof as may be necessary to realize the amount due plaintiffs, including costs and expenses of this suit, be sold.

Reversed and remanded with directions.


author: Mr. Justice Riess

text:
    William. W. Keefer, Appellant, v. The United Electric Coal Companies, Appellee.
    Gen. No. 9,043.

      Opinion filed October 15, 1937.
    Sims & Strahsky, of Chicago, for appellant; Frahklih J. Strausky, of Chicago, of counsel. -

      Acton, Acton & Baldwin, of Danville, for appellee; W. M. Acton, of Danville, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellant filed suit for damages for breach of a written contract based on defendant’s refusal to purchase coal lands in Fulton county, Illinois. The court sustained a motion by defendant to dismiss the second amended declaration of the plaintiff and entered a judgment in bar of the action from which the plaintiff appeals.

The declaration as amended alleges that the plaintiff, on January 2,1925, was the owner in fee simple of 220 acres of land in Fulton county, Illinois, commonly known and designated as the “Strode and Hilton land,” and on that day executed and delivered to the defendant a written option to purchase said real estate for the sum of $85,200, at any time on or before January 1, 1926.

The option is set forth in the declaration and is as follows:

‘1 Option

“Know All Men By These Presents, That W. W. Keefer, the owner of the following described real estate, in consideration of one dollar and other covenants and agreements herein set out, does hereby agree to sell and convey to The United Electric Coal Companies or its assigns, the following described real estate, situated in the Township of Putman, County of - Fulton, State of Illinois, to-wit: Southeast quarter of Section twenty one (21) anjl the south half of the southwest quarter of the southwest quarter and the southeast quarter of the southwest quarter of Section twenty two (22), all in township six (6) north range three (3) East, containing 220 Acres, more or less.

“It Is Agreed, that the said The United Electric Coal Companies or its assigns, shall have the right to purchase said lands at any time on or before the first day of January, 1926, without the payment of any rentals hereinafter provided to be paid upon the continuance of this option for a longer period.

‘ ‘ During the continuance of this option the said The United Electric Coal Companies or its assigns, shall have the right to drill or otherwise test said lands for the purpose of investigating the coal contents of said lands, causing and occasioning no unnecessary damage to said premises, improxmments or crops thereon. Said tests may be conducted at such times in such places as the said The United Electric Coal Companies or its assigns, shall desire.

“In the event the said The. United Electric Coal Companies or its assigns, shall elect to purchase the above described real estate, the purchase price of said lands shall be $85,200.00, payable as follows:

“Thirty-seven thousand dollars ($37,000.00) cash in hand and the balance in eight (8) equal annual payments with interest at the rate of six (6) per cent per annum, payable annually from January 1, 1925.

“In the event the said The United Electric Coal Companies, or its assigns shall elect to purchase the said land, the said owner or his assigns shall furnish an abstract of title to the said land showing clear record title, and shall give the said The United Electric Coal Companies or its assigns, a reasonable time thereafter in which to examine the said abstract, the said owner, or his assigns, agreeing to cure the defects, if any, shown on such examination and to convey to the said The United Electric Coal Companies or its assigns, the said land by general Warranty Deed clear and free of dower, homestead and all other incumbrances, except . . . and this agreement shall remain in full force until the same is delivered with the said deed.

“The failure of said The United Electric Coal Companies or its assigns, to pay the purchase price as herein agreed shall render this option and contract null and void, and each party shall thereupon he discharged from any and all liabilities and claims arising hereunder.

“It is agreed that in the event this option is exercised, the said $37,000.00 will draw interest from January 2, 1925, to the date of payment at the rate of six (6) per cent per annum.

“In Witness Whereof, we have hereunto set our hands this 2nd day of January, 1925.

1 ‘ W. W. Keefer, (Seal) ”

The declaration further alleged that on May 27, 1925, the defendant did, by an instrument in writing, elect to exercise the above option, which election was as follows:

“May 27, 1925.

“W. W. Keefer,

Pittsburgh, Pa.

“Dear Sir:

“We hereby elect to exercise option on 220 acres immediately adjacent to lands covered by lease now in effect with our company and known as the Strode and Hilton lands in Fulton County, Illinois.

“United Electric Coal Co.

By H. A. Swallow,

Its President.”

The declaration further alleged that the defendant on June 1, 1925, entered into possession of the real estate described in the option and continued in such possession for several months thereafter, for the purpose of doing certain work preliminary to the mining of the coal contents of said land; that the real estate mentioned and described in the option had a special value on account of coal deposits underlying the surface thereof, and that on account of its proximity to other lands owned by the defendant, on which defendant was engaged in mining and removing coal, said lands were of a special value to the defendant, over what their value would be to any other person or corporation; that said land had no value for any purpose other than mining and removing coal therefrom, except for farming purposes and that the value for farming purposes would not exceed $100 per acre; that after the receipt of said instrument in writing, dated May 27,1925, the plaintiff offered to execute and deliver to the defendant, clear and free of dower, homestead and all other incumbrances; that the defendant declined said offer of the plaintiff to execute said warranty deed and repudiated the contract and agreement created by the instrument in writing and refused and wholly failed to pay any part of the purchase price provided in said option for the transfer of the real estate described therein. Damages were asked in the sum of $75,000.

The original declaration in this case was filed on the 15th day of September, 1932, and the second amended declaration was filed on September 30, 1936, on which day the motion to dismiss the same was also filed.

This motion of the defendant, in the nature of a special demurrer, which was sustained by the court, sets out in substance the following specific objections to the second amended declaration: First, "that it is based upon and sets forth a written option given defendant to purchase certain lands by the payment of $37,000 in cash and the balance in eight equal payments, containing the following provision: “The failure of said The United Electric Coal Companies or its assigns to pay the purchase price as herein agreed, shall render this option and contract null and void, and each party shall thereupon be discharged from any and all liabilities and claims arising hereunder”; that this provision and the allegation that no part of the purchase price was paid by the defendant prevents any liability on the part of the defendant under said option and precludes recovery by the plaintiff from the defendant. The motion further states that the declaration is uncertain, contains mere conclusions of the pleader, fails to set forth sufficient facts to state a cause of action, makes no allegation that the plaintiff has made tender of performance and has at all times been ready, able and willing to perform its part of the purported contract, and that it appears from the amended declaration that more than 10 years have elapsed since the purported execution of an acceptance of said purported option and is barred by the statute of limitations.

The plaintiff appellant contends that the second amended declaration sets forth a good cause of action and that the offer in the written option therein set forth was fully accepted according to its terms by the defendant appellee and thus became a bilateral contract binding on both parties for the alleged breach of which this action was filed and the plaintiff appellant seeks recovery of damages herein.

The defendant appellee contends, contra, that the said declaration, as amended, fails to set forth by proper averments and allegations sufficient facts to state a good cause of action and that the option contract was" never accepted by the optionee according to the terms and conditions precedent therein expressly provided and that the unilateral written option did not, therefore, become a bilateral executory contract for the sale of real estate binding upon or enforceable by or against the respective parties thereto.

The defendant’s motion to dismiss the declaration admitted all facts well pleaded, but did not admit the conclusions of the appellant, or his interpretation, or construction of the option agreement, or the alleged contract for sale.

An option is a right acquired by contract to accept or reject a present offer within a limited or reasonable time in the future. In such contract two elements exist: First, the offer to sell, which does not become a contract until accepted; second, the completed contract to leave the offer open for the specified time. Bates v. Woods, 225 Ill. 126, 130, 80 N. E. 84; (Citing Black v. Maddox, 104 Ga. 157, 30 S. E. 723; Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17; Bayfield v. Defenbacher, 266 Ill. App. 385, 392; Raddle v. Lindemann, 151 Ill. App. 441.)

This court, in Bayfield v. Defenbacher, supra, and Raddle v. Lindemann, supra, cites with approval the following definition of an option therein quoted from Ide v. Leiser, supra, viz.: “An option is a contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. He does not sell his land. He does not then agree to sell it; but does sell something, viz.: the right or privilege to buy at the election or option of the other party.” This right or option so purchased, to be valid, must be based upon a valuable consideration, which in the written option herein set forth is recited to be “in consideration of one dollar and other covenants and agreements herein set out.” Bayfield v. Defenbacher, supra, p. 392.

The courts of review, of this State have drawn a clear distinction between the two classes of contracts; namely, the unilateral option contract and a bilateral contract for the sale of real estate. This distinction is set forth in apt language by the Supreme Court in the case of Lake Shore Country Club v. Brand, 339 Ill. 504, 521, 171 N. E. 494. “An option contract is unilateral. Under it the optionee has a right to purchase upon the terms and under the conditions therein named. He is not, however, bound to purchase; Because but one party is bound thereby and the other is not, courts will exercise their discretion with great care in determining whether such a unilateral contract has been converted into a bilateral contract. (Crandall v. Willig, 166 Ill. 233, Estes v. Furlong, 59 id. 298.) If conditions precedent to the right to convert a unilateral contract into a bilateral one are not met the unilateral contract does not become bilateral. (Barnett v. Meisterling, 327 Ill. 564; Bostwick v. Hess, 80 id. 138.) An option contract is not a contract of sale within any definition of the term, and at best but gives to the option holder a right to purchase upon the terms and conditions, if any, specified in the option agreement. In order to avail himself of the right, the optionee must comply with the conditions set out in the option contract. (Bostwick v. Hess, supra.) In this respect the denial of an option to purchase property differs from the forfeiture of property rights already acquired under a bilateral contract. (James on Option Contracts (1916), sec. 862) Therefore, unless the appellee has met the conditions of the option contract or the conditions have been waived it is not entitled to exercise the option.”

An acceptance of an option to purchase must be such a compliance with the conditions as to bind both parties, and if it fails to do so, it binds neither. United States Gypsum Co. v. MacKey Wall Plaster Co. (9 C. C. A.) 252 Fed. 397, 400, 164 C. C. A. 321.

Where a contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other. Lancaster v. Roberts, 144 Ill. 213, 223, 33 N. E. 27; Ulrey v. Keith, 237 Ill. 284, 86 N. E. 696.

No method is set forth in the written offer by which the option to purchase shall be accepted. It is not stated whether the option shall be exercised by written or verbal notice or in any other manner. It is clear, however, that if the appellee, at any time within the time limit fixed therein, viz.: from January 1, 1925, to and including January 1, 1926, had without any word, either written or verbal, paid the initial payment of $37,000 with six per cent interest to the date of such payment to the appellant as a payment under the option, it would have entitled appellee to a deed as therein provided.

The contract specifically provides that at any time during the continuance of the option, The United Electric Coal Companies or its assigns, as optionees, shall have the right to drill or otherwise test said land for the purpose of investigating the coal contents thereof, causing and occasioning no unnecessary damages to said premises, improvements and crops thereon, and that such tests may be conducted at such times and in such places as the said coal company or its assigns shall desire.

The option for the purchase of the 220 acres of land was clearly intended for use by appellee in the mining of coal and its optional purchase price was fixed at $85,200. In the amended declaration, the plaintiff further states that “said land had no value for any purpose other than mining and removing coal therefrom, except for farming purposes and that the value for farming purposes would not exceed $100 per acre.” The express provision for drilling or otherwise testing the lands for the purpose of investigating the coal contents was made one of the material conditions and privileges of the option and a part of the consideration of the contract. Unless waived by the optionee, it became one of the conditions precedent to the acceptance of the offer. This valuable consideration could not be waived or taken from the optionee by the optionor. Without this test, the exercise of the option by the coal company would have been wholly valueless for the very purpose for which the option was expressly given. Nowhere in the declaration is it alleged or set up by the recital of ultimate facts that this essential part of the contract was complied with either before or after the letter of May 27,1925, was mailed by the company to the plaintiff herein.

The declaration further alleged that the defendant on June 1, 1925, “entered into possession of the real estate described in the option and continued in such possession for several months thereafter.” From this allegation it can only appear that the defendant’s entry upon the real estate immediately following the letter in question was for the necessary purpose provided for in the contract and that the period of “several months” mentioned was all within the time for which the option was held and within the time for which the coal company held the express right and privilege of going on the land and making the necessary preliminary tests before they could determine under the terms of the contract whether or not they would make final acceptance of the offer of purchase on the terms therein recited. Can it be reasonably inferred that they intended to waive this provision and consummate the purchase contract without any knowledge of the presence or absence of coal under the land?

The conclusion of the pleader in its declaration that the defendant “entered into the possession of said lands for the purpose of doing certain work preliminary to the mining of coal contents of said land” could only mean, when taken in connection with the express "rights and privileges of the option, that he entered thereon for the purpose of making the preliminary tests necessary to ascertain the coal content of the land. The conclusions of the pleader as to the defendant’s intent and purpose of entering on the land, with no allegation of fact in connection therewith, are neither binding upon nor admitted by the defendant under the pleadings and are not in accord with either the express terms of the contract or the alleged conduct of the defendant in pursuance thereof.

Whether or not the letter of May 27, 1925, referring to the option, had reference to the entry to make the necessary tests which would be preliminary to the initial payment of $37,000 provided for in the option or whether, as contended by the appellant, it was intended to be in full acceptance thereof and effective in converting the option contract into a contract of sale does not appear in “clear and unambiguous” language in this letter. As we have stated, the written option did not provide the manner in which the acceptance was to be made other than a statement of conditions precedent to consummating the transaction.

A further express and somewhat unusual provision was. included in the written option which provided in plain and unambiguous language that “the failure of said United Electric Coal Companies or its assigns to pay the purchase price herein agreed shall render this purchase contract null and void and each party shall thereupon be discharged from any and all liabilities and claims arising hereunder. ’ ’ Clearly, the necessary tests provided for in the contract must precede the payment and clearly, moreover, this payment was made one of the express terms of the option agreement, with the nonperformance of which the same was to be declared null and void and each party discharged from all liability and claim arising thereunder. This provision was unilateral and was a condition precedent to the complete and final exercise of the option, without which the option agreement could not have been enforced against the optionor by the coal company as an accepted and completed bilateral contract of sale. The converse of this fact, therefore, necessarily follows, since the contract conld not be binding and enforceable against either party unless it had become bilaterally enforceable against both of them; that this was the intention of the parties is set forth in the express provisions of the written option when construed together as they must necessarily be in arriving at such intent from the language of the whole instrument and each of the provisions thereof.

The forfeiture provision herein recited was not a provision in a bilateral contract of sale of real estate wherein the failure to pay would constitute a breach of contract, but is a provision in a unilateral written option, which option becomes null and void in the event of nonpayment of the amount specifically set forth in the option. Citations of authorities where there had been a breach of an executory contract for the sale of real estate are therefore not in point. The optionee is not bound by the option privilege until the same is accepted by him according to all of its express terms and provisions. .

This rule is aptly stated in the case of Pollock v. Brookover, 60 W. Va. 75, 53 S. E. 795, 6 L. E. A. (N. S.) 403, which was a suit to enforce specific performance of an option agreement, the court at page 408 said: “The offer must have been fully and completely accepted, in all its parts, and its provisions strictly complied with, before it became an executory contract. It is the complete acceptance of the option, by complying with all its provisions in that respect, that concludes the contract between the parties.”

In the case of Winders v. Kenan, 161 N. C. 628, 77 S. E. 687, the court held that “the acceptance must be according to the terms of the contract and in this regard the payment of the purchase money or any part thereof precedent to the exercise of the right to buy, the money must be paid or tendered and a mere notice of an intention to buy or that the party will take the property does not change the relation of the parties.” Weaver v. Burr, 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94.

In Trogden v. Williams, 144 N. C. 192, 56 S. E. 865, 868, 10 L. R. A. (N. S.) 867, a contract was given to purchase land for $10,000, payable $5,000 cash and the remainder one year after date of the first payment to be secured by a mortgage upon the land at any time within the term of 90 days from the date of the contract of January 16, 1905. The evidence showed that within the 90 days, the optionee elected to purchase the land, but did not make the cash payment. The court held that there could not be a recovery because the cash consideration was not paid.

This controlling rule was early recognized and followed in this State. In Bostwick v. Hess, supra, a suit was filed for specific performance, upon an option given to purchase certain land at any time within a period of four months. For a cash consideration of $500, the optionor gave the option to purchase 80 acres of land within the period of four months, upon the terms and conditions therein set forth. The terms were that on or' before October 5th the optionee, if he elected to purchase, should pay the optionor $2,600 in cash, and the balance at certain fixed periods thereafter. The option was dated June 5, 1855. The time expired on the first payment on October 5, 1855. There was nothing said in the contract sis to how the option to purchase should be exercised. The evidence showed that Bostwick, after the execution of the agreement and within the period of four months, without paying the $2,600, entered into the premises, which were then uninclosed prairie, and caused the land to be fenced, and some streets to be graded, and some breaking to be done. The position was taken in that case that the action of the optionee showed an election to purchase and changed the option into an agreement for the sale and purchase of the land, binding as such upon both parties, but the Illinois Supreme Court said at page 143 that: “These acts of Bostwick undoubtedly indicated his intention to take the land and to make the purchase thereof. But something more than signifying his election to take the land on the terms offered was required on the part of Bostwick, in order to make a contract of sale, or to give him any interest in the lands. His right was only to purchase upon the terms and conditions named, which were: The payment of $2,600 in cash within four months, . . . and the execution of promissory notes for the deferred payments. Bostwick never performed either one of these things, or offered so to do, and so never exercised the right to purchase within the four months, which he enjoyed, which he could only do upon the aforenamed terms and conditions.-We must think that, notwithstanding the making of said improvements, it was still optional with Bostwick whether he would, within the four months, make the purchase, pay the $2,600, ... or decline to do so.”

In the recent case of Northern Illinois Coal Corp. v. Cryder, 361 Ill. 274, 197 N. E. 750, the distinction between the unilateral option agreement and the ex-ecutory bilateral sale contract which only becomes binding and effective after acceptance of the offer by the optionee in accordance with its terms, is again announced and recognized by the court.

While in that case, which was a suit by the optionee against the optionor, the facts were materially different from the meager facts alleged herein, and it was shown that the optionee had done everything in his power to meet the express terms of the offer; had approved the abstract of title; had paid off a $21,000 mortgage on the land referred to in the option; had procured and tendered the remainder of the purchase price due and made demand for a conveyance of the premises upon the optionor thereunder, who had in the meantime evaded compliance and signed another contract for the sale and conveyance of the land to a different purchaser, etc., all of which clearly constituted a breach of contract which was held by the optionee and was at all times binding on the optionor under his power of election. Right to redress by specific performance was sustained against the optionor under the particular facts of that case, yet the principle announced therein is applicable to the facts in the instant case in a similar manner as it was applied in the case of Bostwick v. Hess, supra.

In the Gryder case, the optionor was estopped from denying notice of acceptance on the facts therein shown and the payment and conveyance held to be dependent covenants. The application of the rule necessarily depends upon the particular facts of each case.

The facts in the pending cause fall clearly within the class of cases similar to that of Bostwick v. Hess, supra, in which the payment or tender of purchase price or instalment thereof becomes a "condition precedent in the acceptance of the option by the optionee.

A careful reading of the opinion in the Gryder case discloses the fact that there was no specific provision in the option agreement in that case that the failure to pay the purchase price “shall render this option and contract null and void and that each party shall thereupon be discharged from any and all liabilities or claims arising thereunder,” or making the acceptance of the offer dependent upon an advance payment of a whole or part of the purchase price and is clearly distinguishable on the facts from the pending cause.

It is clear that parties may so contract so as to make the option null and void upon certain conditions and when a clause to that effect is expressly provided for in a written option, it must be construed as a part of the whole instrument and cannot be ignored in passing upon its intent and meaning, unless such provision is illegal or contrary to public policy.

The appellant insists, further, that the alleged offer to perform on his part and the failure and refusal of the defendant to make the payment upon the offer of tender constituted (without an actual tender) a waiver of further performance by the plaintiff of the conditions to be performed by him under the contract, and that his right of action thereupon accrued. Under the vague and indefinite allegations of facts and conclusions as to what was done by the respective parties and when the alleged transactions or offers took place we hold that no waiver of lawful tender and continuance of such tender of performance on the part of the plaintiff appears on the face of the declaration.

From the statements of ultimate facts and allegations set forth in the declaration, this court cannot hold that the circuit court was in error in ruling that the same did not state a cause of action and that there had been no sufficient allegations showing an acceptance of the unilateral option which would convert it into a bilateral contract of sale upon which the plaintiff was entitled to recover damages for an alleged breach of contract from the defendant herein.

In view of the holding herein, we need not consider defendant’s contention that the alleged cause of action is barred by the statute of limitations. Suffice it to say that it appears from the supplemental abstract procured by the appellant by leave of court on suggestion of diminution of record, which contains the original declaration, shows that the cause of action therein alleged was based upon the written option set out in the second amended declaration, and that the 10-year statutory period for filing the suit had not elapsed when the plaintiff’s original declaration was filed herein.

Many points and authorities are set forth in the briefs and arguments of respective counsel which we have fully considered, but we find many of them not in point or not decisive of the points at issue in this case.

From, a consideration of the whole of the record it is the opinion of this court that the errors were not well assigned and that the trial court committed no reversible error in sustaining the motion of appellee and rendering judgment in bar of suit against the appellant.

The judgment of the circuit court of Vermilion county will therefore be affirmed.

Judgment affirmed.