text:
    Northwestern National Bank of Milwaukee, Wisconsin, Appellant, v. Madison & Kedzie State Bank, Appellee.
    Gen. No. 31,051.
    1. Negotiable instruments — sufficiency of evidence, in action to recover stolen bonds from the bank, to which they were subsequently negotiated, to show actual knowledge of the theft on the part of such bank’s authorized agent. Evidence in an action to recover bonds stolen from the plaintiff bank, brought against the bank to which they were subsequently negotiated, held to show that prior to such negotiation the plaintiff had mailed to the defendant and to other banks written notice of the theft, that such notice came to the defendant in the regular course of mail and business, and that the clerk of the defendant authorized in that behalf had- mailed to plaintiff an acknowledgment of the receipt of such notice and hence that such clerk had actual knowledge of the theft.
    2. Negotiable instruments — imputation to bank to which stolen bonds negotiated of prior actual knowledge of the theft on the part of its authorized agent. Where the undisputed evidence in an action to recover bonds stolen from the plaintiff bank, brought against a bank to which they were subsequently negotiated-, showed that prior to such negotiation the defendant’s duly authorized clerk had actual notice of the theft, defendant was chargeable as a matter of law with such notice and knowledge, and hence of the infirmity of the title of the person negotiating them to it, notwithstanding the officers of the defendant through, whom such negotiation was effected had no knowledge of the notice or of the theft.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Philip J. Finnegan, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Reversed and judgment here.
    Opinion filed October 5, 1926.

      Ekern & Meyers and Hayes, Sawyer & Sondele, for appellant; H. A. Sawyer and L. F. Binkley of counsel.
    Defrees, Buckingham & Eaton, for appellee; Wilfred M. Doherty and Carlos A. Spiess, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff filed its statement of claim in replevin on . May 14, 1925. Later leave was given to file a statement of claim in trover. Issue was duly taken on the main averments in each, and trial was had without a jury. This appeal is from a judgment on the finding of not guilty.

The following essential facts are not in dispute:

On December 8, 1924, robbers entered plaintiff’s bank and stole therefrom, among other securities, four bonds for $1,000 each, issued by the Commercial Utilities Company, a corporation, and five bonds or gold notes for $1,000 each, issued by the Toledo Traction, Power & Light Company, a corporation, all bearing 6 per cent interest, and all of which came into the possession of defendant on May 9,1925, as collateral to a loan, and were still in its possession at the time of the trial.

After the robbery plaintiff mailed to banks and bond and brokerage houses over 9,000 printed notices of the robbery, giving therein an itemized list of securities lost through it, including a description identifying said bonds by their serial numbers and otherwise. Each envelope containing the notice also contained an addressed, stamped envelope for return to plaintiff, a printed form of letter addressed to plaintiff, acknowledging the receipt of the list, and closing with the words, “Very truly yours.” One such envelope with such contents was duly mailed to defendant, and the inclosed addressed envelope bearing the postmark January 5, 1925, was returned to plaintiff the next day through the mail, inclosing the printed letter or receipt of notice, which bore the words “Madison & Kedzie State Bank, Chicago, Illinois,” placed thereon with a red rubber stamp immediately following the words, “Very truly yours.” Such a rubber stamp was in use by defendant, and it was the custom of the clerk or employee to whom was assigned the duty of opening and distributing its mail, to use such a rubber stamp on receipts and other papers so received. It was also his custom on receipt of lists of stolen securities or bonds to deliver the lists to the assistant cashier, Sehroeder, who in turn placed them in the note teller’s cage for reference by various officers of the bank.

The trial was had in December, 1925. The clerk could not then remember receiving such a list but testified that he might have received it and so stamped the receipt, and would not testify that he did not. Sehroeder testified that the first time he saw the list was at another banking house May 11, 1925, two days after the bonds and notes came into the possession of the bank as collateral to a loan it made to an impostor who had previously opened an account with the bank. The negotiation for the loan was had with defendant’s assistant cashier, Gorman, who submitted the application on such collateral to said Sehroeder and Mammoser, vice president and cashier of the bank, all of whom denied having received or seen any notice of the theft before receiving said bonds and notes.

It is unnecessary to go into the details of the transactions between the bank and the impostor. Their only materiality is the bearing they have on defendant’s good faith in taking the bonds. While the proof may indicate negligence or lack of business precaution in such transactions, we cannot say the facts with regard thereto are such as impute bad faith to defendant.

The main grounds urged for reversal are (1) that the bonds are not negotiable instruments, and (2) if they were, that defendant took them with notice of defect in the title of the person negotiating them, and, therefore, was not a holder in due course under section 52 of the Negotiable Instruments Law [Cahill’s St. ch. 98, [[72]. If the latter contention is correct there is no necessity of considering the former, - with which, however, we are not disposed to agree.

Whether the bonds, regarded as negotiable instruments, were taken with notice of defect in the title of the person negotiating them depends on whether defendant had actual knowledge that the bonds were stolen property when it received them. Section 56 of the Negotiable Instruments Act [Cahill’s St. ch. 98, [[76] provides: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

The real question, as we conceive it, is whether on the undisputed fact that defendant received said notice in the manner aforesaid it is chargeable with actual knowledge of the theft when it received the bonds.

On this point our attention is directed by appellee to the case of Lord v. Wilkinson, 56 Barb. (N. Y.) 593. In that case the court held that where a banker received stolen notes after having been notified of the theft, notice was not conclusive of the question of good faith; that forgetting or omitting to look at the notice at the time of the purchase is not a question of mala fides, but is evidence of negligence, and that the question of good faith is for the jury, and that knowledge of the robbery at the time of the purchase was essential to bad faith. Other authorities are there referred to supporting that conclusion, all of which were decided prior to the adoption of the Negotiable Instruments Law as now codified for uniformity. While, as above stated, we do not think, aside from the fact defendant received such notice, that the facts were such as to impute to defendant bad faith, which would be a question of fact, yet we think upon the undisputed fact of its receiving such notice it was chargeable as a matter óf law with actual knowledge that the bonds were stolen and, therefore, of defect in the title of the person negotiating them.

Being a corporation, defendant necessarily acted through its agents. Its knowledge must, therefore, be such as necessarily comes to one of its agents acting in the regular course of his duties. Upon the admitted state of facts, as above recited, with no evidence tending to rebut them, it must be inferred that notice of the stolen bonds came in regular course of mail and business into the hands of the proper and only agent of defendant authorized to receive and open its mail, and that in the line of his duty he put the rubber stamp on the receipt and mailed it back. As he had to inspect the contents of the mail in order to know to whom to distribute it he personally must have received actual knowledge of the theft of the bonds.

It becomes a question of law, therefore, whether or not his actual knowledge was that of the defendant corporation which must necessarily acquire knowledge, if at all, through its authorized agents. It is true that the several officers of the bank having to do with the negotiating of said loan denied any knowledge of the notice or of receiving it. But in our opinion the fact of actual notice depends on the authority of the agent to acquire it through opening and inspecting the bank’s mail and not on his duty to report it to other agents of the bank. If there was neglect in that respect on his part it did not change the fact that the notice was received by the agent of the hank authorized to receive, acknowledge and deal with it. If to constitute actual knowledge of the bank it would be necessary to bring such notice to the personal attention of each of its several agents likely to deal with such securities then it would open the door to an easy evasion of liability and put a premium on the negotiation of stolen securities. The notice having been received by the proper agent of the bank to receive, open and acknowledge its mail in the line of his duties, we think the bank is estopped from claiming that it did not have actual knowledge of the defect in the title to the bonds it subsequently received.

Under modern methods of doing business whereby ready reference may be'had to such information thus furnished it, we cannot regard the knowledge thus once obtained by the proper agent to receive it, as being any less actual and binding because at the time of the negotiation of the stolen securities it may have been overlooked or forgotten. Such a fact may be material as held in the case in 56 Barbour and references, where the element of bad faith alone is considered. But the statute makes the alternative of actual knowledge equally important, and it is not made subject to the condition of having been overlooked or forgotten. The difficulties of bringing actual knowledge to the several inmates of banks and brokerage offices, through whom the negotiation of such securities is most likely to be attempted, renders it highly desirable for the protection of innocent losers that the receipt of a special notice of this character by such banks or brokers in the regular course of business should be sufficient to put them on guard against aiding in the circulation of stolen negotiable securities.

In this view of the case we think upon the undisputed evidence defendant had actual knowledge that the bonds were stolen, and as a matter of law was, therefore, not a holder in due course under the uniform Negotiable Instruments Law.

Accordingly as a matter of law the judgment will be reversed and judgment will be entered here for the face of the bonds, namely, $9,000, with interest thereon at the rate of 6 per cent from February 1, 1925, up to which time the bond coupons had been paid or clipped from the bonds before they were received by defendant.

jReversed and judgment here.

Gridley, P. J., and Fitch, J., concur.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Public Service Company of Northern Illinois, Appellee, v. Timothy J. Lynch, Highway Commissioner of Township of Proviso, Appellant.
    Gen. No. 30,711.
    1. Highways — sufficiency of evidence to show electric transmission line constructed along public highway constitutes permanent obstruction to public use of highway. Evidence in a suit to re-, strain a township highway commissioner from interfering with an electric transmission line constructed by a private corporation, with the consent of the abutting owners, along a public highway in such township, held to show that the transmission line, as constructed, is a permanent structure which interferes with the public use of the platted highway and with the performance of the commissioner’s statutory duty to keep such roadway in repair as well as with projected improvements thereof.
    2. Injunctions — jurisdiction of equity to restrain interference by highway commissioner with, electrie transmission line constructed along public highway within his jurisdiction. A court of equity is without jurisdiction, at the suit of a private corporation which has constructed an electric transmission line along a public highway, to restrain the highway commissioner having jurisdiction over such highway from interfering with such transmission line for the purpose of accommodating the public use of such highway until such commissioner shall have procured the permission of the court to compel the making of the desired changes in such line.

      Appeal by defendant from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925. Reversed and remanded.
    Opinion filed October 5, 1926.
    Rehearing denied October 18, 1926.
    Dittos & Chatroop, for appellant.
    Samuel K. Markman and Isham, Lincoln & Beale, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a decree restraining the defendant, who is the highway commissioner of the town of Proviso, in Cook county, from “interfering in any manner whatsoever, until the further order of the court,” with complainant’s “electric transmission line” as constructed by it in Pushek road, a rural public highway in that township. The decree was entered after a hearing upon the bill, answer and replication, and upon evidence taken before a master, and the master’s report.

Complainant is an Illinois corporation, engaged in the business of furnishing electrical current for heat, light and power. It owns and operates transmission lines of poles and wire, carrying currents of electricity of high voltage. Pushek road is a township road for a distance of a mile and a half running south from the southern limits of the village of Bellwood to Twenty-second street extended west from the city of Chicago. The road as platted is sixty-six feet wide, but the fences of abutting owners encroach on either side from five to ten feet. The south mile of the road is much traveled, and that part is improved with a pavement of oiled macadam eighteen feet wide, with shoulders of earth and ditches on both sides. On the north half mile, the roadway is macadam twelve feet wide, with like shoulders and ditches. The paved portion of the road runs in a straight line the whole distance, except for a temporary curve at one point where the road follows the meander line of a small creek crossing the highway.

Desiring to construct one of its transmission lines in Pushek road, complainant presented to the defendant, as highway commissioner, a draft of a permit or franchise permitting it to erect and maintain a pole line in the highway. Defendant told complainant he would grant the permit if properly drawn by his attorney, but that provision must be made to pay an inspector to see that the poles were properly set, and that the consent of the abutting property owners must be first secured. The agent of complainant who asked for the permit verbally agreed to these conditions, and defendant employed an attorney, who had a conference with a representative of the complainant and then drafted and submitted to complainant a document granting permission to complainant to erect its proposed transmission line and maintain it for twenty-five years, provided the line should be located in the highway according to the direction of the defendant as highway commissioner, and so as not to interfere with the use of the highway for ordinary traffic and travel and the usual and natural requirements of the road for highway purposes, and should be maintained in good repair and kept reasonably safe at all times, and that complainant should pay for “actual inspection and other charges incurred” by defendant, reserving to him and his successors the right to compel the relocation of the line or the removal thereof, or placing it underground, “whenever reasonable requirements of said road for other highway purposes make such change or removal reasonably necessary or convenient. ’ ’

Complainant did not accept this permit or agree to defendant’s conditions, and no permit was issued, but, after procuring the consent of the abutting owners, complainant proceeded to erect its transmission line without the permission of the highway commissioner, whereupon defendant stopped the work. An attempt was made to come to an agreement, which failed, defendant insisting that the poles and wires, should be placed in a straight line along the road near the fence line, which complainant was not willing to do. Then complainant filed a bill praying that defendant be enjoined from interfering with the construction of its transmission line, alleging that the route it intended to follow was not on any part of the “traveled” highway nor in any ditch. Upon the filing of the bill, a motion was made for a temporary restraining order, but instead of granting the motion an order was entered giving complainant leave to file an amended bill and giving defendant time to answer the same, with the further provision that if complainant “considers that it is unlawfully, illegally or unreasonably interfered with by the defendant in the construction of its line * * * complainant may proceed with such construction without interference, but at its own peril and without prejudice to the rights of the defendant as highway commissioner, or this court, to order said line removed or relocated in accordance with the law and the facts and circumstances appearing on the hearing hereof, or upon the trial of this cause on its merits.” When defendant’s answer was filed, the cause was referred to a master and the taking of testimony begun. No other restraining order was made until the order appealed from was entered.

After the entry of the order last above quoted, complainant proceeded with the construction of its line, without further interference by defendant. As constructed, the line of poles is not built in a straight line nor along the fence lines, as requested by defendant, but for 2,600 feet north from Twenty-second street the line is built on the west side of the highway, then crosses to the east side and continues north to a point north of the crossing of the Illinois Central Railroad, where the line again crosses the highway in a northwesterly direction to the west side and continues on the west side to the southern limits of the village of Bellwood. Except where it thus crosses the highway, at two different points, the line is from nine to eleven feet within the outer lines of the platted highway and from five to nine and one-half feet from the fence lines of the abutting owners. The master finds that at the point where the creek crosses the road, the pole line does not follow the dedicated road but goes east of the east highway line and follows the used road as it meanders along the creek, so that while at least one of the poles is at or near the center of the dedicated street, three others are almost on the easterly line of the platted highway. The master also finds that this was done to avoid interference with trees which, on the west side, are about forty feet high and on the east side, thirty-five feet high; that “for future safety of the line,” these trees must be cut down or their tops trimmed so as to give at least fifteen feet “clearance,” and where it is impracticable to remove the trees, it will be necessary to carry the line over the tops of the trees, or build around them. The evidence shows, and the master finds, that “straight construction is safer than curved construction and that the crossing of the highway by said transmission line increased the hazard of the line.” One of complainant’s witnesses testified that the line carries a current of 33,000 volts, direct contact with which would result in serious injury or death. The master finds that the line of poles, as thus constructed, does not constitute an obstruction to travel “as the same is now used by the traveling public,” and does not constitute any interference with the drainage “as at present existing,” but will interfere with the use of machinery in the cutting of grass and weeds, the grading of the road, and the repair of the ditches, and that the four poles immediately north of the Illinois Central Railroad will interfere with defendant’s presently contemplated plans for widening and straightening the highway.

Defendant takes the position that as complainant is neither a telegraph nor a telephone company, it had no right to build its line on Pushek road without defendant’s consent, and without complying with defendant’s demand that he be permitted to direct the location of the poles so as not to interfere with public travel and the proper repair and maintenance of the road. Complainant’s position is that after complainant secured the consent of the abutting property owners, defendant had no authority to interfere with the erection of the poles, so long as the actual existing public travel on the road is not obstructed.

While it is undoubtedly true, as contended by the complainant, that where the fee of a highway is in the abutting owners, the public have only an easement therein and the abutting owners may use the part of the highway which is not used or required by the public in any manner that will not interfere with the full enjoyment of the public easement (Sears v. City of Chicago, 247 Ill. 204), it follows, as a corollary, that the rights of such an abutting owner are subordinate to the public easement (13 R. C. L. 123; 29 C. J. 549; Johnson v. Whitefield, 18 Me. 286), that is, to the paramount right of the public to use the highway for all purposes for which it may be needed by the public (2 Elliott on Roads and Streets, § 827).

Assuming, therefore, but without deciding, that the abutting property owners might grant to complainant the same right which they have to use the highway, their right in that respect is subject to the paramount right of the public to use it, and it may not, either with or without the consent of the public authorities, be obstructed or encroached upon by any permanent structure inconsistent with the public right. Such public right is not limited merely to travel over the highway “as now existing,” nor to any particular part less than the whole, of the highway.

In People v. Harris, 203 Ill. 272, the following language is quoted from Elliott on Roads and Streets:

“Any permanent structure or purpresture which materially encroaches upon a public street and impedes travel is a nuisance per se, and may be abated, notwithstanding space is left for the passage of the public. This is the only safe rule, for if one person can permanently use a highway for his own private purposes, so may all; and if it were left to the jury to determine in every case how far such an obstruction might encroach upon the way without becoming a nuisance there would be no certainty in the law, and what was at first a matter of small consequence would soon become a burden, not only to adjoining owners, but to all the tax-payers and the traveling public as well. Thus expediency forbids any other rule. But even if it did not, the rule is well founded in principle, for it is well settled that ‘the public are entitled not only to a free passage along the highway, but to a free passage along any portion of it not in the actual use of some other traveler,’ and if this be true it necessarily follows that there can be no rightful permanent use of the way for private purposes.”

The same principle is recognized by statute. Section 221 of the Criminal Code [Cahill’s St. ch. 38, 453] makes the obstruction or encroachment of a highway a public nuisance punishable by fine, and in some cases by imprisonment, and provides that such nuisance may, by order, of the court before which the conviction is had, be abated by the sheriff or other officer at the expense of the defendant. The statute on Roads and Bridges (chapter 121, art. 6, § 50, Ca-hill’s St. ch. 121, 56) provides that the highway commissioner of each town shall have power and it shall be his duty, not only to lay out, alter, widen and vacate roads as therein provided, hut to keep the same in repair and improve them so far as practicable, to direct the construction and maintenance thereof, to prevent noxious weeds from growing thereon, “and to extirpate the same as far as practicable,” and prevent all rank vegetable growth therein “by causing the same to be cut and destroyed prior to the seeding of the same, and at the farthest, prior to September 1st in each and every year.” Other sections require the highway commissioner to designate from time to time what roads shall be dragged or otherwise improved, and to make contracts therefor. Section 151 [Cahill’s St.' ch. 121, [[167] makes it an offense punishable by fine to obstruct a highway, and authorizes the highway commissioner, after due notice, to remove the obstruction and collect the cost of such removal from the offender. Section 155 [Cahill’s St. ch. 121, [¶] 172] makes it the duty of the highway commissioner to seasonably prosecute such offenders. In Smith v. McDowell, 148 Ill. 51, it was said (p. 68):

“The permanent encroachment upon a public highway or street unauthorized by the legislature, and the creation of a purpresture therein, which obstructs the free and uninterrupted passage of the public, is, as a matter of law, a public nuisance. The matter of inconvenience to the public, or that sufficient of the street may remain unobstructed to still accommodate the public travel, cannot be considered.”

The evidence shows that the transmission line of the complainant as constructed is a permanent structure, intended by the complainant to be such, and is of a character which interferes with the use of the platted highway to the extent of preventing him [appellant] from straightening and widening the roadway and making it more difficult and more expensive for him to exercise his statutory duty of keeping the highway in repair and the roadside free from weeds. The evidence shows that the work of road-grading and weed-cutting has been done by machinery at a comparatively small expense to the township, and that the presence of complainant’s poles upon Pushek road as now constructed will require some of this work to be done by hand at considerably greater expense. Conceding, therefore, that complainant had the right, with the consent of the abutting owners, to make such temporary use of the highway as it desired, not inconsistent with the rights of the public in the highway, it is clear from the evidence that the line of complainant, as constructed by it, is not of that character.

It is apparent from the form of the decree that the chancellor felt that some authority should rest somewhere to enable the public to regain the use of that part of the highway occupied by complainant’s poles, at some future time if conditions should change. This imposes upon the defendant, a duly elected public officer, charged with the duty of preventing and removing obstructions in the highway, the burden of requiring him to apply to the court for permission to perform his duty, whenever the public need requires that complainant’s poles shall be removed or their position changed. Defendant, and his successors in office, having statutory duties to perform, should not be placed in the position of being obliged to ask the court’s permission to perform their duty.

For the reasons stated, the decree is reversed and the cause remanded.

Reversed and remanded.

G-ridley, P. J., and Barnes, J., concur.


text:
    William G. McNulty and John P. McNulty, copartners, trading as William G. McNulty & Brother, et al., Appellees, v. Joseph J. White and Edith C. White, Appellants.
    Gen. No. 30,780.
    1. Appeal and error — when decree will not be affirmed pro forma notwithstanding appellants’ failure to file abstract conforming to rule of Appellate Court. A decree in mechanics’ lien proceedings will not be affirmed pro forma because of appellants’ failure to file an abstract of the testimony complying with Rule 18 of the Appellate Court where appellants admit, for the purpose of the review, that the facts are correctly stated by the master in his report, and they contend only that he has drawn erroneous legal conclusions from such facts.
    2. Mechanics’ liens — when variance between bill and decree immaterial. Where intervening petitions in mechanics’ lien proceedings contain allegations sufficient to support a decree against the defendants as joint owners of the premises in suit, the fact that the principal petition lacked averments appropriate to charge both of such defendants is immaterial, especially in view of the conclusion of the court adverse to the right of such principal contractor to a lien upon such premises.
    3. Mechanics’ liens — when allowance of interest upon incumbrance and solicitor’s fees to holders thereof properly made in decree directing sale. A decree in mechanics’ lien proceedings was not erroneous because including an allowance of interest upon the incumbrance covering the property in suit, together with solicitor’s fees to the legal holders of such incumbrance, where such decree was in accordance with the specific provisions of the trust deed regarding interest and solicitor’s fees.
    4. Mechanics’ liens — inclusion of riparian rights in decree ordering sale of premises to satisfy liens. Where the title to property in respect of which mechanics’ lien proceedings were instituted showed that the property of the defendants ran to the water’s edge of Lake Michigan, the decree directing the sale of the property to satisfy such liens properly included a provision for the sale of the riparian rights belonging and appertaining to such property, in view of Cahill’s St. ch. 82, HI.
    5. Mechanics’ liens — building construction contract provision as effecting waiver of right of principal contractor and his subcontractors to lien for labor and material furnished. Where a building construction contract provided: “The contractor shall and will, for the consideration hereinafter mentioned, furnish, construct, set in place, furnish and deliver to the Owner, free from all claims, liens and charges, and in good, substantial, thorough and workmanlike manner and under the direction and to the satisfaction of Ernest A. Mayo, the Architect, all material and labor necessary to complete the plans and specifications herein signed in duplicate, two sets of each,” held that such provision was a waiver of all right on the part of the principal contractor and of all subcontractors claiming under him, to a lien upon such premises for either labor or material, in view of the express provisions of Cahill’s ,St. ch. 82, K 21, as amended by Laws 1913.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed in part and reversed in part and remanded with directions.
    Opinion filed October 5, 1926.
    Rehearing denied October 18, 1926.
    Stebbins, Garey, L’Amoreaux & Hurtubise, for appellants.
    A. S. and E. W. Froehlich, Culver, Andrews & King, Cassels, Potter & Bentley, Joseph Rosenberg, Erwin F. Stolle, Frisch & Frisch and Edward W. Rawlins, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a decree entered in a mechanics ’ liens proceeding, establishing liens against appellants’ property, a residence on Sheridan Road, in Winnetka, Illinois, in favor of the contractors and of certain defendants and intervening petitioners, and ordering the sale of the property to pay the amount of such liens, if not paid by appellants within ten days from the date of the decree.

The evidence upon the bill, cross-bill, intervening petitions and the answers thereto, was taken before a master, who made a report of his conclusions of law and fact. After appellants’ one hundred and forty-nine exceptions to the report had been overruled by the court, it was approved, and a decree entered in accordance with the master’s findings and conclusions. The evidence reported by the master is embodied in over 1,300 typewritten pages of the transcript. Practically none of this evidence has been abstracted. As filed, the abstract is a printed volume of 190 pages, of which the first 162 pages consist of copies, practically verbatim, of the pleadings, master’s report and decree. The next 20 pages purport to abstract 170 exhibits, following which less than three pages are given to a purported abstract of 1,323 pages of evidence, and the concluding four pages contain the assignments of error.

Bule 18 of this court requires an abstract to “show, in condensed form, the pleadings necessary to present any question raised thereon and the judgment,” that “where the record contains the evidence it shall be condensed in narrative form in the abstract so as to present clearly and concisely its substance, ’ ’ and that “the abstract must be sufficient to present fully every error and exception relied upon.” It cannot be successfully contended that appellants’ abstract complies with this rule, and for that reason, appellees urge that the decree be affirmed pro forma. Counsel for appellants, in their reply brief, admit that they have not attempted to abstract the testimony and say that “for the purpose of this review, we admit that the facts are stated correctly by the master in his report, but it is claimed he has drawn erroneous legal conclusions from such facts.” In view of this admission and claim, we are not disposed to affirm the decree merely because of the want of a sufficient abstract of the testimony, but shall assume that the findings of fact in the master’s report are fully sustained by the evidence taken and reported by him.

This admission of appellants’ counsel disposes, adversely to appellants, of all contentions which are based upon alleged statements of fact at variance with the master’s findings of fact, including the contention that Ernest A. Mayo, an architect, who (as the master found) was employed by appellants and acted throughout as the agent of appellants, was, in fact, the general contractor instead of William Gr. McNulty & Bro., and also the contention that appellants’ cross-bill, founded on the latter theory of the facts, was erroneously dismissed for want of equity.

It is urged by appellants that there are no allegations, and no prayer in the bill,, justifying a decree against Mrs. White, who was an owner, jointly with her husband, of the Sheridan Road lot. The bill alleges such joint ownership and the master found, in effect, that the work was all done with her knowledge and consent and that she approved it all. She and her husband filed joint and several answers to the bill and a joint cross-bill in which they took the position that Mayo, and not McNulty, was the general contractor. However, all the intervening petitions contain allegations sufficient to support a decree against Mrs. White in favor of such petitioners, and in view of our conclusion, hereafter stated, as to the alleged liens of complainants and their subcontractors:, the variance complained of is immaterial.

We think there was no error in the allowance of interest on the incumbrance, and in allowing solicitors’ fees to the legal holders of the same, for the reason that the decree appears to follow the specific provisions of the trust deed regarding interest and solicitors’ fees.

.The property of appellants runs “to the water’s edge of Lake Michigan,” and the decree directs the sale of the property, “together with all riparian rights belonging or appertaining” thereto. It is insisted that such rights are not the subject of a mechanic’s lien. The statute [Cahill’s St. ch. 82, [[1] provides that such liens shall extend to any interest the owner may have “in the lot or tract of land at the time of making such contract or may subsequently acquire therein.” There is no merit in the contention.

It is next urged that under the terms of the contract set up in complainants ’ bill no lien or claim may be filed or maintained by anyone for work done or materials furnished as provided therein. That contract is between Joseph J. White, designated as “the owner,” and William Gr. McNulty & Bro., designated as “the contractor.” It begins as follows:

“The contractor shall and will, for the consideration hereinafter mentioned, furnish, construct, set in place, finish and deliver to the Owner, free from all claims, liens and charges, and in good, substantial, thorough and workmanlike manner and under the direction and to the satisfaction of Ernest A. Mayo, the Architect, all material and labor necessary to complete the plans and specifications herein signed in duplicate, two sets of each.”

In Brown Const. Co. v. Central Illinois Const. Co., 234 Ill. 397, it was held that a provision in a construction-work contract between an original contractor and a railroad company, that the completed work should be delivered “free from any and all liens, claims or incumbrances of any description,” amounts to an agreement that there shall be no lien, and therefore neither the original contractor, nor any of his subcontractors, can assert any lien upon the railroad property. In Kelly v. Johnson, 251 Ill. 135, and in Cameron-Schroth-Cameron Co. v. Geseke, 251 Ill. 402, it was assumed that such a provision in a contract would preclude the contractor, or any subcontractor, from establishing a lien. In the last two cases, the decision mainly turned upon the constitutionality of an amendment made in 1903 to section 21 of the Mechanics’ Liens Act [Cahill’s St. ch. 82, [[21]; but, in Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619, the precise question here involved was squarely presented and decided. It was there held that a provision in a building contract by which a contractor agrees to deliver the work “free from all claims, liens and charges,” is clearly a waiver of all claims for mechanics’ liens by such contractor, and that such waiver is binding upon his subcontractors, who are presumed to have contracted with full knowledge of the provisions of the original contract.

It is insisted that since the passage in 1913 of the amendment to section 21 of the Lien Act [Cahill’s St. ch. 82, [[21], a different rule applies. That amendment provides, in substance, that as against subcontractors, “the only admissible evidence” that the contract with the owner waives all liens “shall be proof of actual notice thereof to him,” or proof that the contract was recorded, before any work or labor is furnished by him. Neither the master’s report nor the decree contains any finding of fact on this subject. In the absence of such findings, or any abstract of the evidence, we must presume, as was done before the amendment of 1913 was enacted, that the subcontractors contracted with full knowledge of the provisions of the McNulty contract, upon which the rights of the subcontractors depend. “The fountain cannot rise above its head.” (Brown Const. Co. v. Central Illinois Const. Co., supra.)

Counsel for the contractors and subcontractors in this case also contend that subsequent provisions in the contract show that it was not the intention of the contractor to waive his right to a mechanic’s lien. The provisions referred to are of the same general character as the provisions in the contract that was before the court in Rittenhouse & Embree Co. v. Warren Const. Co., supra, where a like contention was made, and it was there held that such subsequent provisions of the contract in no way alter or modify the provision requiring the building to be finished and delivered “free from all claims, liens and charges.” The court said that such subsequent provisions were intended for the benefit of the owner and to insure the prompt and faithful performance of the contract by the original contractor, and that the owner forfeited none of his rights “secured by the earlier provisions of the contract, by embodying these additional provisions in the nature of additional security for the faithful and speedy performance of the contract.”

We are of the opinion that these decisions of the Supreme Court are decisive of the contention here made, and that under such decisions the original contractor, William G. McNulty & Bro., waived all right to any mechanic’s lien upon the premises of appellants, and that such waiver in their contract is binding upon the appellees, W. H. Dow Manufacturing Company, John M. Hoffman, and Theo. Ebert & Co., who are found by the master’s report to be subcontractors of William G-. McNulty & Bro. Counsel for Theo. Ebert & Co. say that, as a matter of fact, the work done by them was not included in the McNulty contract, but “was contracted-for by the owners with Mc-Nulty & Co. in a different way altogether and the evidence discloses how and when it was done.” Counsel has not abstracted, or pointed out in any other manner, any evidence to that effect which is to be found in the voluminous record. The intervening petition filed by Ebert & Co. states that McNulty & Bro. had contracted with appellants to provide the labor and materials “required for the erection” of appellants’ residence, and “that for that purpose,” Ebert & Co. contracted with McNulty & Bro. to do the painting and decorating “required in the erection” thereof. The McNulty contract, printed in full in the abstract, contains a provision that “as the original figures were given from incomplete plan and specifications,” the contractor is to “provide all the materials, workmanship and labor required for the finishing and completion of said work,” and that reasonable charges are to be made by Mm for “alterations and additions called for under completed plans.” Among the exhibits appended to the completed plans we find specifications for painting. Ebert & Co. \s bid, attached to their intervemng petition, is for “painting, decorating and wood finishing of residence for Mr. J. J. White, located in Winnetka, Illinois, in accordance with plans and specifications prepared by Ernest A. Mayo, Architect.” This bid is addressed to and was accepted by McNulty & Bro. In our opinion, this evidence shows that Ebert & Co. were subcontractors of McNulty & Bro., as the master finds, and that the master’s statement that “McNulty’s contract did not include the painting and decorating” must be read in the light of the facts stated, as meaning that McNulty’s bid on the “incomplete specifications,” referred to in the contract, did not include painting.

The other liens allowed by the decree stand on a different footing. The intervening petitions of the appellees, Phillips-Getschow Company, Louis Stolle, North Shore Hardware Company and Bobbins Manufacturing Company, show that they are not subcontractors of McNulty & Bro., but are original contractors who did work or furnished materials under contracts made directly with the owners. It is not claim that such contractor contained waivers of liens, similar to the waiver in the McNulty contract.

It follows from what we have said that in our opinion the court erred in allowing liens in favor of William G. McNulty & Bro., John M. Hoffman, W. H. Dow Manufacturing Company and Theo. Ebert & Co.; and that part of the decree relating to them is therefore reversed. All that part of the decree relating to the liens of Louis Stolle, Phillips-Getschow Company, North Shore Hardware Company, Bobbins Manufacturing Company, and to the claims of the Chicago Title and Trust Company, as trustee, and Bichard Williamson, Dora Williamson and Dora W. White, as holders of notes secured by trust deed on the premises of appellants, is affirmed. That part of the decree which orders that the amounts paid to the master on account of his fees and stenographer’s charges by Mc-Nulty & Bro., and their three subcontractors, and by Mayo, be taxed in their favor against appellants, is reversed. Each of said parties will pay his or its own costs incurred or paid in the circuit court and also in this court. Appellants will pay their own costs in this court. That part of the decree which orders that the amounts paid by Louis Stolle, Phillips-Getschow Company, and Richard Williamson, Dora Williamson, and Dora W. White to the master on account of master’s fees and stenographer’s charges be taxed in their favor against appellants, is affirmed. Finally the cause will be remanded with directions to enter a decree in conformity with these conclusions.

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

Gridley, P. J., and Barnes, J., concur.


text:
    Maiman-Hurwitz Manufacturing Company, Plaintiff in Error, v. David Maiman, Defendant in Error.
    Gen. No. 30,897.
    1. Pleading — when replication to so-called “motion to strike and plea in abatement” improperly stricken. Where the replication to a so-called “motion to strike and plea in abatement” presents an issue of fact determinable only on evidence, it was error to strike such replication and enter judgment for defendant upon the “plea.”
    2. Pleading — sufficiency of so-called “motion to strike and plea in abatement” as plea in abatement. Where a so-called “motion to strike and plea in abatement,” directed to the amended declaration in an action against the guarantor of an account for goods sold and delivered, contained allegations of fact which were manifestly inconsistent,' it was error to enter judgment for defendant upon such pleading as a good plea in abatement, it being the duty of the court to grant plaintiff’s motion to strike the so-called plea and direct defendant to plead to such amended declaration.
    3. Pleading — when amended declaration does not state new or different cause of action. Where a declaration by assignees of a cause of action against the guarantor of an account for goods sold and delivered was held bad on demurrer, an amended declaration in the name of the assignor corporation upon the same cause of action and against the same defendant was not the beginning of a new suit or the statement of a new or different cause of action.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. L. P. Habriss, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed October 5, 1926.
    Rehearing denied October 18, 1926.
    Gallagher, Shulman, Abrams & Henry, for plaintiff in error; Vincent G. Gallagher and Meyer Abrams, of counsel.
    Hoover & Cody, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error brings up for review the action of the superior court in sustaining defendant’s plea in abatement and entering judgment against plaintiff for costs.

The action was in assumpsit and was begun on April 2, 1924, in the name of Benzion L. Hurwitz and David Maiman, as assignees of the Maiman-Hurwitz Manufacturing Company, a corporation, against David Maiman, to recover a balance alleged to be due to the corporation upon an account for goods sold and delivered to Joseph Maiman, which account was guaranteed by the defendant David Maiman. After a general and special demurrer to the declaration, as originally filed, had been sustained and leave given to file an amended declaration, an amended declaration was filed on July 21, 1925, in the name of the corporation, as plaintiff, against David Maiman, upon the same cause of action, but omitting all reference to any assignment of the claim by the corporation. Thereupon, on defendant’s motion, the general and special demurrer to the original declaration was permitted to stand as a demurrer to the amended declaration, and defendant also filed a document labeled “Motion to Strike and Plea in Abatement,” which is the plea eventually sustained by the trial court.

That document is, in form, a motion to strike the amended declaration from the files, for four alleged reasons, which may be briefly stated as follows: (1) That the amended declaration names an entirely new plaintiff and constitutes anew cause of action; (2) that the plaintiff corporation is “in fact duly dissolved and no longer has a corporate existence”; that it assigned all its accounts and property toi David Maiman and Benzion L. Hurwitz prior to its dissolution, which occurred in July, 1922, but that “there was no claim or demand due from the defendant to the said corporation” at that time; (3) that plaintiff, having no legal existence, could not authorize anyone, as its agent, to make the affidavit of plaintiff’s claim, which is attached to the amended declaration; (4) that the cause of action stated in the amended declaration “has no existence in fact,” but if the facts therein alleged were true, then defendant would be both plaintiff and defendant in the same action.

The record shows that in November, 1925, the demurrer to plaintiff’s amended declaration was overruled, as well as the motion to strike the amended declaration from the files, and that plaintiff was ruled to reply to “the defendant’s plea in abatement” within ten days. The record further shows that this time was later extended by stipulation, and that within the stipulated period as extended, a replication was filed in the usual form of replication to a plea, alleging that plaintiff’s cause of action, as stated in its amended declaration, existed at the date of the dissolution of the corporation, upon a valid claim and demand due it from the defendant at the date of such dissolution and that suit upon its said claim was instituted by the plaintiff within two years from the date of such dissolution. The replication concludes to the country.

The record also shows that thereafter certain affidavits were filed in support of a motion to dismiss the suit upon the ground that the plaintiff’s attorney had never been authorized by the corporation to bring suit in its name; but that motion was denied by the court, and as no cross-error had been assigned upon that action of the court, the correctness of that ruling is not here involved.

Thereupon, on defendant’s motion, plaintiff’s replication to defendant’s plea in abatement was stricken from the files. Plaintiff then moved to strike from the files the defendant’s plea in abatement and enter a default against defendant for want of a plea, and to find the issues in plaintiff’s favor, which motions were denied. Then, on defendant’s motion, a final order was entered abating the cause of action “on defendant’s plea in abatement” and giving judgment against plaintiff for costs. Exceptions to these rulings against the plaintiff were duly preserved.

We are of the opinion that the court erred in striking the plaintiff’s replication from the files and entering judgment for the defendant upon the so-called “motion to strike and plea in abatement.” As the action was one at law, in a court where common-law pleadings are still used, the motion to strike plaintiff’s amended declaration was not proper in any event. However, if such a motion could properly be considered, none of the alleged reasons therein stated is a sufficient reason to justify the court in striking the amended declaration from the files. This seems to have been recognized by the court, for the record does not show that the declaration was in fact stricken from the files, or that the motion to strike, as such, was sustained. The order actually entered treated the document as a plea in abatement, and without any trial thereon sustained the plea and “abated” the suit. If the document can be treated either as a plea in abatement or a plea in bar, the replication thereto tenders an issue of fact which it was error to dispose of without a trial of such issue. If the averments of the replication are true, in point of fact, the facts alleged in the plea (if its averments can be considered as statements of fact) cannot also be true. If it be true, as stated in the replication, that the cause of action set forth in the amended declaration existed in favor of the plaintiff corporation when it was dissolved, and suit thereon was begun within two years thereafter, although in the name of the alleged assignees, then the filing of the amended declaration in the name of the corporation, omitting the names of the assignees, was in no sense the beginning of a new suit or the statement of a new and different cause of action. It was merely the substitution of the proper party plaintiff, which is expressly authorized by the statute of amendments, and which, so far as defendant is concerned, relates back to the date of the commencement of the suit. (United States Ins. Co. v. Ludwig, 108 Ill. 514.) While it is true that the so-called plea alleges that the cause of action declared on .in the amended declaration was assigned by the plaintiff corporation before its dissolution, it also alleges that “there was no claim or demand due from the defendant to the said corporation at the time of the aforesaid assignment or at the time of its dissolution.” It is apparent that both of these allegations cannot be true. It is also apparent that the court could not determine which, if either, is true, without evidence, and none was heard.

In courts where common-law methods of procedure and practice prevail, it would appear to be well for counsel to follow recognized forms of common-law pleading, and not attempt to invoke the aid of such a hybrid “motion and plea” as was filed in this case. Such documents are apt to be confusing both to court and counsel, and neither a trial court nor this court ought to be required to spend its time solving such puzzles as are presented by this record. The motion of plaintiff to strike the so-called plea should have been allowed, and defendant should have been ruled to plead to the amended declaration.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed cmd remanded,

Gridley, P. J., and Barnes, J., concur.


text:
    Louis Cohen and Jennie Cohen, Appellants, v. Fred S. Wolffs, Appellee.
    Gen. No. 31,013.
    1. Negotiable instruments — when parol evidence admissible to show purpose of and want of consideration for indorsement of note on its face a guaranty of payment. In an action by the holder of a promissory note against his immediate indorser, parol evidence is admissible to show that such indorsement, although on its face amounting to a guaranty of payment, was in fact without consideration and solely for the purpose of conveying title to the instrument.
    2. Negotiable instruments — sufficiency of evidence to show that indorsement of note was without consideration and made solely to convey title to' the instrument. In an action by the holder of a promissory note against his immediate indorser evidence held to show that the indorsement, although on its face a guaranty of payment, was in fact without consideration and intended solely to convey title to the instrument.
    Appeal by plaintiffs from the Municipal Court of Chicago; the Hon. C. F. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed October 5, 1926.
    Claude J. Dalenberg, for appellants.
    Moses, Kennedy, Stein & Bachrach, for appellee; Hirsch E. Soble, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This appeal is from a finding and judgment for the defendant in an action upon an indorsement and guaranty of a promissory note. Such indorsement and guaranty consist of defendant’s signature on the back of the note under a printed form in the following language: “For value received-hereby assign and guarantee the payment of the within note at maturity, or any time thereafter, with interest at seven per cent per annum after due until paid, waiving notice, protest and diligence in collecting, and hereby agree to pay all costs and expenses paid or incurred in collecting the same.” The defense is that there was no consideration for the indorsement and guaranty.

The facts are not in dispute. Counsel for plaintiffs concedes that they are substantially as set forth in the fifth paragraph of the amended affidavit of merits. That paragraph states, in substance, that in August, 1922, defendant, being the owner of certain real estate in Chicago, executed a written lease for a term beginning January 1, 1923, and ending April 30, 1928, to one Nate Frank, of a storeroom and basement in a building to be thereafter erected on such real estate; that under the terms of the lease Frank, the lessee, deposited with defendant his promissory note for the sum of $1,000 payable April 12, 1923, which sum was to be held by defendant, as lessor, for the prompt payment of the rent and the performance by the lessee of the other covenants of the lease; that it was provided in the lease that if the lessee should faithfully and fully pay the rent and perform all the covenants of the lease during the full term thereof, “then the lessor shall use and apply said sum so deposited for the rent hereinbefore provided to be paid by said lessee, for the last period of this lease, so far as the same will apply,” but if the lessee should abandon the premises, or be dispossessed, or fail to perform all the covenants of the lease, then the lessor may, at his option, “use and apply the said sum, so far as it will apply, towards the payment of the rents reserved, and to the performance of the covenants and agreements herein contained to be kept, performed or fulfilled by the lessee, including any deficiency or reletting”; that the lease further provided that no action should be brought by the lessee in relation to the money so deposited until two months after the expiration of the full term of the lease, and that any default on the part of the lessee should be deemed an absolute transfer of the “sum deposited”; that when the note so deposited matured, it was destroyed and a new one given in lieu thereof, dated April 12, 1923, for the same amount and due four months after its date, which is the note involved in this suit; that in June, 1923, defendant sold the real estate mentioned in the lease to one Nathan Edenburg, and as an incident to such sale, assigned to Edenburg the lease and the note so deposited; that in the contract of sale between defendant and Edenburg there was no agreement or requirement that the defendant should guarantee or indorse the note and that upon closing the deal with Edenburg, defendant “placed his signature on the back of the note merely for the purpose of assigning and transferring title to the same without recourse against him, and for no other purpose”; that thereafter Edenburg sold the property to the plaintiffs and the sale was closed in November, 1923; that neither in the contract of sale, nor in the deed in the latter transaction is there any mention of. the note, nor any agreement that the same should be guaranteed or indorsed by anyone, but, in closing the deal, Edenburg assigned the lease to the plaintiffs and at the same time delivered to them the note in question.

It is not shown or claimed that Frank, the lessee and maker of the note, failed to pay the rent when it was due, or failed to perform any of the covenants of the lease.

It is clear from the evidence and the stipulations of counsel that when defendant placed his signature on the back of the note, he received nothing of value for so doing. The witnesses agree that the note formed no part of the consideration paid for the real estate by Edenburg to defendant, or by plaintiffs to Eden-burg. Defendant testified (and he is not contradicted) that when he, as lessor in the Frank lease, assigned it to Edenburg, the latter’s attorney asked defendant to also “assign the note over,” and that he thereupon put his name on the back of the note for that purpose. He was under no obligation to do more than to transfer the title of the note. Any other promise on his part was gratuitous. When Edenburg became the owner of the property and the lessor’s interest in the lease was assigned to him, he thereby became entitled to the note given as security for the performance of the covenants of the lease. He was entitled to demand of defendant a formal assignment of the note without recourse, in order to transfer the legal title, but he was not entitled to demand from the defendant any indorsement of the note which would have the effect of making defendant liable as an indorser or guarantor thereof. Any promise of personal liability on the part of the defendant which might be otherwise implied from defendant’s indorsement and guaranty was a promise wholly without consideration and was not enforceable by Edenburg, who was not a purchaser for value and who took the note with full knowledge of the facts. Plaintiffs are in no better position. The note was delivered to them three months after it was due, and they paid nothing for it. Their attorney testified that in closing the sale from Edenburg to plaintiffs, the note “was not figured in as part of the consideration. ’ ’

Plaintiffs contend, however, that parol and extrinsic evidence is not admissible to vary the terms of the written guaranty and indorsement. That such is the general rule was held in Mason v. Burton, 54 Ill. 354, and in Jones v. Albee, 70 Ill. 34. But the rule has its limitations and exceptions, which have also been recognized in this State. In Jones v. Albee, supra, some of the exceptions are mentioned, including one which permits oral proof that a blank indorsement was made merely to transfer the title to the note, in pursuance of a contract to that effect. Another exception, or qualification, appears in Peabody v. Munson, 211 Ill. 324, where it was said: “The rule is well settled that a valid consideration is necessary to support the liability of an indorser of a negotiable note (7 Cyc. 690), and it is also the rule that as between an indorsee and his immediate indorser the consideration for the indorsement is always open to- oral inquiry. (Kirkham v. Boston, 67 Ill. 599; Jones v. Albee, 70 Ill. 34; 4 Amer. & Eng. Encyc. of Law, 2d Ed., 196, 197.) ” In that case, Munson held and owned a note given to him by one Hillman, the payment whereof had been guaranteed by Peabody. Hillman failed to pay the note and by an agreement between Peabody and Munson, Peabody executed bis note, payable to Munson, for the amount of the note which Munson held against Hillman and against Peabody as guarantor, and delivered the same to Munson, whereupon Munson surrendered to Peabody the Hillman note and indorsed the same to him. Munson sued Peabody on his note, and Peabody attempted to set off Munson’s alleged liability on the latter’s indorsement of the Hillman note. The court held that it was competent to show these facts by oral testimony, upon the principles above quoted, and held that Munson’s indorsement was wholly without consideration and that no liability was created against him, as an indorser. The same exceptions, or qualifications, have been recognized in many other cases, among which the following may be cited: Monroe v. State Bank of Patch Grove, 181 Wis. 19; State Sav. Bank v. Osborn, 188 Iowa 168; Ellis v. First Nat. Bank, 163 Ark. 471; Blackwood v. Sakwinski, 221 Mich. 464, and Sawyer State Bank v. Sutherland, 36 N. D. 493. In Monroe v. State Bank of Patch Grove, supra, it was said: “There is undoubtedly much conflict in the authorities relating to the question whether an indorser may impeach his indorsement when sued by the indorsee but we think that by the weight of authority, as stated by Mr. Daniel: ‘It may be shown that the indorsement was without consideration, as, for instance, that it was for the indorsee’s accommodation, or merely to transfer the legal title to the indorsee, he being in fact the owner of the paper; or that it was indorsed for collection, where the form of indorsement does not show that fact; or that it was indorsed merely to perfect an arrangement between the maker and indorsee.’ 1 Daniel, Neg. Inst., 6th Ed., § 720a.”

Under these authorities it must be held that the parol evidence was admissible in this case, and as it shows that there was no consideration whatever for defendant’s indorsement or guaranty, his signature on the back of the note was effective merely to transfer the title to the note, without creating any liability against him as indorser or guarantor; and as the plaintiffs received the note from Edenburg after maturity and without paying anything of value for it, they are not holders in due course, as defined by the Negotiable Instruments Act, hut took the note with its indorsement subject to all the defenses that might be made by defendant while it was in the hands of Edenburg.

It follows, we think, that the finding and judgment for the defendant were correct, and the judgment is affirmed.

Affirmed.

Gridley, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice McSurely

text:
    Mirza Myers Murphy, Plaintiff in Error, v. White City Amusement Company, Defendant in Error.
    Gen. No. 30,853.
    Exhibitions and shows — sufficiency iof evidence to support direction of verdict for defendant in action for injury to amusement parlt patron. Where the evidence in an action by a patron of an amusement park, seeking damages for an injury sustained while a passenger in a boat permitted to slide down a plane with an incline of nearly 45 degrees from a height of 55 or 60 feet to a" pond at its foot, thereby striking the water with such violence that it bounded upwards several times before settling to a steady course across the pond, showed that the plaintiff, when she embarked upon the ride, was familiar with the device and aware of its dangers, and failed to show any defect in either the construction or the operation of the device, it was not error to direct a verdict for defendant.
    Error by plaintiff to the Superior Court of Cook County; the Hon. Emanuel Elleb, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed October 11, 1926.
    Royal W. Irwin, for plaintiff in error.
    Miller, Gorham, Wales & Noxon, for defendant in error; Gilbert Noxon, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

' Plaintiff was injured while riding on an amusement device known as ‘ ‘ The Chutes. ’ ’ She brought suit and upon trial the court instructed the jury to find for the defendant. From the judgment on the verdict plaintiff appeals.

“The Chutes” is an inclined plane rising at an angle of about 45 degrees to a height of about 55 or 60 feet. On the incline are metal rails with water running down between them. Passengers, who have ascended to the top by an escalator, are loaded in boats about 5 feet wide and 15 feet long, which are then started down the incline, descending by gravity at a speed estimated at 35 or 40 miles an hour. An attendant rides in the back. At the bottom of the incline is a lake or pond, and when the descending boat strikes the water the front end bounces up about 9 feet, then it bounces a few more times with diminishing force until it is brought to the landing.

On this particular occasion plaintiff was one of a party of 10 or 11 which visited the amusement park. They bought tickets for the chutes, ascended to the top by the escalator, and entered one of the boats, the plaintiff sitting in the second seat from the front. The boat ran down the incline, and when it struck the water, plaintiff says, it first raised her from her seat and then she sat down heavily, injuring her spine.

Plaintiff testified that she had seen the chutes quite often before, was familiar with them and the manner in which the boats ran down the incline, and knew how they bounced when they struck the water in the pond. She said that when the boat she was in “struck the water, it flew up in the air like all those chutes boats ’ ’; that “they all look alike and act alike”; that the reason she took the ride was “to get the thrill going down, * * * but it is not pleasant when you strike the water.”

Other witnesses testifying on behalf of the plaintiff said that they were familiar with the manner of operation and knew that the boats bounced up and down when they struck the water at the bottom of the incline.

Plaintiff’s declaration charges: (1) That the boats on the chutes were operated in a manner dangerous to the occupants thereof, in that the boats were permitted to slide down the plane at a high and dangerous rate of speed and to strike the water at the. bottom with great force and violence; (2) that defendant negligently caused and permitted said boat to violently jar, lurch, and be thrown into the air; and (3) the operator of the boat did carelessly and negligently cause said boat to be violently thrown into the air. There is no evidence to support the third count nor evidence that the device was defective or operated in an unusual manner.

Can plaintiff maintain an action for an injury received on such a simple amusement device, with which she was familiar, upon the sole ground that it is dangerous? The answer must be in the negative.

While the relation between plaintiff and defendant may have been that of passenger and carrier, yet the relative duties of the parties depend upon the kind of carriage contracted for. Plaintiff knew that she was contracting for a swift ride down a steep incline in a boat which bounced violently when it struck the water at the bottom. Her contract of carriage was subject to the dangers incident to the experience. She testified that she took the ride to receive the thrill caused by such dangers. The factor of danger was one of the things she contracted for.

In Pointer v. Mountain Ry. Const. Co., 269 Mo. 104, where the passenger was injured upon a scenic railway, the court said that he “knew he was making no contract for a Pullman car upon the level tracks of a steam railroad,” but contracted for the peculiar carriage offered.

In Carlin v. Krout, 142 Md. 140, a passenger was injured while riding on the “Ocean Wave.” The evidence showed that the device was in perfect condition and operated according to its design, and it was held that the injuries were not caused by any breach of duty charged against the proprietor with reference to ordinary conditions represented or understood to be safe, “but to those existing in an unusual device which was intended to be used only by persons who desired to assume the risks which its use clearly involved.”

In Sullivan v. Ridgway Const. Co., 236 Mass. 75, where an amusement device was operated in its usual manner, it was held that defendant was not liable for injuries received by a patron, and in Lumsden v. L. A. Thompson Scenic R. Co., 130 N. Y. App. Div. 209, where the passenger was injured while riding on a scenic railway, the court in reversing a judgment obtained by plaintiff said: “The plaintiff knew the general nature of the ride that she was about to take. She selected her own seat, and voluntarily placed herself in a position in the car from which she was thrown, and she assumed the risk of being thrown from the car by reason of its usual operation. The car necessarily gave a lurch as it started down the incline. So far as appears, there was nothing unusual or extraordinary about the motion of the car; nor was there the slightest evidence that the car was out of order, or that anything happened upon this trip that was not the usual occurrence made necessary by the motion of the car.”

This language is applicable to the instant situation. We are not influenced to the contrary by the decisions in Carlin v. Smith (Md.), 130 Atl. 340, or Stickel v. Riverview Sharpshooters Park Co., 250 Ill. 452. In the former case it was held that the injury arose from a defect in the device or in its operation. In the latter case, the “Katzenjammer Castle” was a complicated affair with only on© exit, a chute, down which the protesting plaintiff was forced by an attendant, and certain agencies for the safety of patrons were absent from their customary places. In O’Callaghan v. Dellwood Park Co., 242 Ill. 336, the cars running on a scenic railway for some unexplained reason were suddenly checked, throwing the passenger out.

In the present case the evidence did not tend to show any defect in construction or operation. The device operated as it always had operated and as plaintiff expected it to operate. There was nothing to charge the defendant with actionable liability. The peremptory instruction was correct, and the judgment is affirmed.

Affirmede

Hatchett and Johnston, JJ., concur.


text:
    Phillips F. Jarvis, Appellant, v. Joy Machine Company and State Bank of Chicago, Garnishee, Appellees.
    Gen. No. 30,988.

      Garnishment — liability' of acceptor of cheek payable to judgment debtor where payment not due under terms of acceptance and instrument not in hands of payee. In view of Cahill’s St. ch. 62, fl 15, the acceptor of a check, who has undertaken its payment “when properly indorsed,” is properly discharged as garnishee in an action against the payee of such check, where it appears that the check never came into, the hands of such payee and was never indorsed by It.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Philip J. Finnegan, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed October 11, 1926.
    Rehearing denied October 25, 1926.

      Henry M. Hagan, for appellant.
    George E. Fink, for State Bank of Chicago, appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from a judgment discharging certain garnishees in an attachment suit brought against the Joy Machine Company on the ground of non-residence. He argues only that the court improperly discharged the garnishee, State Bank of Chicago.

March 12, 1925, the plaintiff obtained a check for $8,100 drawn on the State Bank of Chicago by the Binkley Coal Company to the order of the Joy Machine Company. Pursuant to an appointment with plaintiff, Mary L. Halla, an employee of his attorney, went to the office of the coal company on March 13 and there obtained the check from plaintiff, and on the same day took the check to the State Bank of Chicago, where it was certified by the bank as follows:

“Accepted for $8,100 and 00 cts. March 13,1925.
Payable through Chicago Clearing House when properly endorsed.
STATE BANK OF CHICAGO,
S. J. Nelson, Teller.”

From the bank Miss Halla went to the office of plaintiff’s attorney, who took her to the bailiff’s office of the municipal court, where the attachment writ was served upon her. She and the Binkley Coal Company and the State Bank of Chicago were served as garnishees.

Miss Halla filed an answer admitting that she still had the check in her possession. The Binkley Coal Company answered, stating that nothing in its possession belonged to the Joy Machine Company at the time of service of garnishee summons. The State Bank of Chicago answered, denying that it had anything .belonging to the defendant, and by supplemental answer set forth the certification of the check, alleged that the same was a negotiable instrument, was not due in the hands of the defendant, and that said garnishee had been notified that neither the check nor the proceeds thereof were the property of the defendant. Plaintiff obtained leave to contest the answers of the garnishees and upon the trial introduced evidence. The First National Bank of Pittsburg filed an intervening petition alleging that the check and the proceeds thereof were its property and not the property of the Joy Machine Company. After hearing the evidence the court discharged the garnishees but made no finding on the intervening petition.

It is necessary to notice only one point, which is decisive. Section 15 of the Garnishment Act [Cahill’s St. ch. 62, [¶] 15] provides that:

“No person shall be liable as a garnishee by reason of having drawn, accepted, made or endorsed any negotiable instrument, when the same is not due, in the hands of the defendant at the time of service of the garnishee summons, or the rendition of the judgment.”

The check was payable to the order of the Joy Machine Company and by its acceptance the State Bank of Chicago undertook to pay the same through the Chicago Clearing House “when properly endorsed.” It is undisputed that the check never came into the hands of the Joy Machine Company, the payee, and was never indorsed by it. It therefore was not due and was not in the hands of the defendant either at the time of the service of the writ or the rendition of the judgment. It was an outstanding negotiable instrument, not then due, and the garnishment against the State Bank of Chicago could not be sustained. Wright v. MacCarty, 92 Ill. App. 120; Auten v. Crahan, 81 Ill. App. 502.

Other meritorious points are presented in support of the judgment, upon which we make no comment. Plaintiff’s attorney suggests that the court should have appointed a receiver. We are not aware that the statute gives the municipal court the power to appoint a receiver. In any event, no such motion was made.

In his argument plaintiff’s attorney contends that the court refused proper evidence, but no such point is made in his brief. However, the evidence presented and objected to was clearly incompetent.

The judgment is affirmed.

Affirmed.

Hatchett and Johnston, JJ., concur.


text:
    Jacob Shapiro, Appellee, v. M. U. Masor, Appellant.
    Gen. No. 31,009.
    1. Landlord and tenant — admissibility of parol evidence to show intent of parties as to scope of term “appurtenances” in demise thereof to tenant. On a motion to vacate a judgment for rent entered by confession under power of attorney in a written lease which demised to the defendant certain premises and “appurtenances,” defendant claiming to have been evicted from the premises by being deprived of the use of a certain shed thereon, parol evidence was admissible to show what was intended by the parties to be included under the term “appurtenances” in the lease.
    2. Judgments — sufficiency of affidavit supporting motion to vacate judgment by confession to show existence of issue of fact. A motion to vacate a judgment for rent entered by confession under power of attorney in a written lease which demised to the defendant certain premises was erroneously denied where the affidavit supporting such motion sufficiently presented a question of fact, to wit, whether the acts of the landlord therein stated amounted to an eviction of the defendant as of the date when the rent for which judgment was entered began to accrue.

      Appeal by defendant from the Municipal Court of Chicago; the Hon. T. F. Ehler, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed October 11, 1926.
    Brown & Alschuler, for appellant; Jesse H. Brown, of counsel.
    Max Krauss, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant appeals from an order overruling his motion to vacate a judgment against him for $1,361.20 entered by confession under power of attorney in a written lease from plaintiff to defendant. The lease was for a period beginning July 1, 1923, and ending June 30, 1933. Defendant vacated the premises October 1,1925, claiming an eviction by the landlord. Judgment was for rental after that date.

Whether or not there was an eviction depends upon the premises demised by the lease, in which they are described as:

“The store floor only of building known as 7640-42 North Paulina Street, otherwise meaning the north double store of new building at above address, to be occupied for the sale of drugs and such other merchandise as is usually handled by a high grade drug store.”

The lease contained the further provision that:

“Lessee shall share the pro rata part of all water rates levied or charged upon the building in which said demised premises are situated, and in case said water rates shall not be paid when due, lessor shall have the right to pay the same, which amount so paid, together with any sums paid by lessor to keep said premises and their appurtenances in a clean and healthy condition, as hereinbefore specified, are hereby declared to be so much additional rent and shall be due and payable with the next installment of rent due thereafter under this lease.”

Defendant’s affidavit supporting his motion to vacate the judgment sets forth:

“That he took possession of the said premises on or about the said date and that the said premises consisted of a store with a shed built in the rear of said premises for the use of the tenant of said store as a storage room wherein to store his merchandise and coal and that he so used the said premises and said shed until about the 1st day of June, A. D. 1925, upon which said last mentioned date the plaintiff caused said shed to be entirely removed against the will and without the consent of the defendant, and erected thereon a garage which he rented to other tenants and said plaintiff then and there promised and agreed to proceed immediately to provide this affiant with other storage facilities, and although often requested so to do, said plaintiff failed and refused to provide said facilities and it became necessary for this affiant to vacate said premises on account thereof, and he did vacate said premises on the 1st day of October, A. D. 1925.”

Parol evidence may be received for the purpose of determining what premises pass under a lease. This is not for the purpose of varying the terms of a written instrument, but of arriving at the intention of the parties with reference to the subject matter of the lease. Previous conversations and circumstances may be shown to ascertain whether certain things were included as appurtenances. Parish v. Vance, 110 Ill. App. 57; Thomas v. Wiggers, 41 Ill. 470; Cleverly v. Cleverly, 124 Mass. 314; Swett v. Shumway, 102 Mass. 365.

An appurtenance is “a thing used with, and related to or dependent upon, another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant.” (2 Amer. & Eng. Encyc. of Law, 2d Ed., 521.) Jarvis v. Seele Milling Co., 173 Ill. 192. It is not necessary in order that appurtenances will pass thereby that the grant of conveyance contain the word “appurtenances.” Shelby v. Chicago & E. I. R. Co., 143 Ill. 385.

In the instant case the lease contains the word “appurtenances,” and it is proper to show by parol what was intended by the parties to be included as an appurtenance.

Whether the act of the landlord in removing the shed was an eviction was a question of fact. 16 R. C. L. “Landlord and Tenant,” sec. 174; Patterson v. Graham, 140 Ill. 531; Rubens v. Hill, 213 Ill. 523.

We are of the opinion that the affidavit presented a question of fact which defendant was entitled to have tried by a jury, and that the court was in error in denying his motion to vacate the judgment. The judgment is therefore reversed and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

Matohett and Johnston, JJ., concur.


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    W. C. Handley, Appellee, v. James Wilson and John T. Wilson, Appellants.
    Gen. No. 31,057.
    1. Judgments — sufficiency of affidavit supporting notion to vacate judgment by confession to raise issue of fact warranting granting of notion. A motion to vacate a judgment entered by confession upon a judgment note against the infant maker thereof, and another who was alleged to have guaranteed payment of the note by indorsement thereof, was erroneously denied where the power of attorney to confess judgment was concededly void as to the infant maker, and the affidavit of the defendant held as indorser denied that he indorsed or signed the note and that the signature on the back thereof was his.

      2. Judgments — when motion to vacate judgment by confession not barred by laches. One against whom judgment by confession has been entered upon a judgment note which he was alleged to have signed as indorser and guarantor was not guilty of such laches in moving to vacate the judgment as to warrant denial of his motion where his supporting affidavit alleged that the purported signature of his name on such note was a forgery, and that he had no knowledge of the entry of the judgment against him until 20 days thereafter, when he received notice that his property was to be offered for sale in satisfaction of such judgment, and his motion to vacate was made on that day.
    3. Judgments — discretion of court as to vacation of judgment entered by confession under power of attorney. A motion to vacate a judgment entered by confession is one addressed to the sound discretion of the court, and calls for the exercise of the equitable power of the court over its own judgments.
    4. Judgments — right of judgment debtor to relief from* judgment entered by confession under void power of attorney. A judgment entered by an unauthorized power of attorney to confess judgment is void for want of power to confess it, and a defendant injured thereby may have the judgment set aside on motion.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed October 11, 1926.
    William E. Rodriguez, for appellants; Elmer C. Anderson, of counsel.
    Nuttall & Chism, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal defendants seek the reversal of an order denying their motion to vacate and set aside a judgment for $592.54 entered against them by confession on a judgment note, and for leave to defend against the action.

The affidavit in support of the motion alleges that James Wilson, the maker of the note in question, was at the time of its execution a minor, namely, 19 years of age; that the note was given in part payment for an automobile which was not a necessity to him and which he returned to the seller the day after the execution of the note, In the eyes of the law, he was an infant, and while his note or contract of purchase of the automobile was voidable, his power of attorney to confess judgment was void. Cole v. Pennoyer, 14 Ill. 160; Lewis v. Conrad Seipp Brewing Co., 63 Ill. App. 349; Fuqua v. Sholem, 60 Ill. App. 140. The judgment must therefore be reversed as to him.

This seems to be conceded by plaintiff, who' says that as the judgment is severable it is good as to John T. Wilson, who guaranteed the payment of the note by indorsement. By his affidavit John T. Wilson denies that he indorsed or signed the note in any manner, and says that the signature on the back of the note is not his. This presented a vital question of fact which he was entitled to have tried and his motion should have been allowed.

It was not necessary to allege that the note was indorsed without his authority. Evidence that the indorsement is not in the handwriting of the purported indorser is prima facie proof that it is a forgery and the indorsement invalid. Hamlin’s Wizard Oil Co. v. United States Express Co., 265 Ill. 156; Foster v. Graf, 287 Ill. 559. The burden of showing the authority of a person to sign another person’s name to a note or check is upon the person claiming such authority. Commercial Nat. Bank of Chicago v. Lincoln Fuel Co., 67 Ill. App. 166; First Nat. Bank of Morrison v. Bressler, 38 Ill. App. 499.

It is.suggested that John T. Wilson is guilty of laches. The judgment was entered August 8,1925. By his affidavit he says that the first notice he received that the judgment had been entered against him was October 8, 1925, when he received notice from the bailiff of the municipal court that his property would be offered for sale on October 28, 1925. The motion was on that day. We do not think the interval of 20 days amounted to laches. Schmalhausen v. Zukowski, 183 Ill. App. 305; Fiedler v. Bishop, 198 Ill. App. 558.

The application to set aside a judgment entered by confession is addressed to the sound discretion of the court and calls for the exercise of the equitable power of the court over its own judgment. If a judgment so entered was not confessed by authority of the defendant, it will be void for want of power to confess it, and a defendant who is injured by it may have it set aside upon motion. Stein v. Good, 115 Ill. 93; Whitney v. Bohlen, 157 Ill. 571; Blake v. State Bank of Freeport, 178 Ill. 182.

Defendants are entitled to a trial. For the reasons above indicated the order denying the motion to vacate the judgment is reversed as to both defendants and the cause is remanded for further proceedings.

Reversed amd remanded.

Matchett and Johxstox, JJ., concur.