text:
    Fred Beck, Appellee, v. Baltimore & Ohio Railroad Company, Appellant.
    1. Master and servant — need of proof of due care by injured workman of interstate railway. In an action for damages for personal injuries suffered by a workman engaged in interstate commerce for a railway company, under the Employers’ Liability Act he need not prove due care on his part.
    2. Master and servant — contributory negligence of injured workman for interstate railway as affecting damages. Any contributory negligence of a workman for personal injuries suffered by him while engaged in interstate commerce for a railway company should be considered by the jury in fixing whatever damages he may be entitled to in his action therefor.
    3. Pleading — one good count as sustaining general verdict. Under Cahill’s St. eh. 110, H 78, providing a general verdict shall not be set aside because one of several counts of a declaration is defective, a general verdict will be sustained if there are one or more good counts to sustain it.
    4. Master and servant — where burden of proof lies to establish assumed risk against employee injured in interstate commerce. Under the Employers ’ Liability Act the. burden of proof is upon the employer who relies on assumed risk to establish it on the part of the employee suing for personal injuries sustained while engaged in interstate commerce.
    5. Master and servant — when workman in interstate commerce need not exercise care to discover danger. Under Section 1 of the Federal Employers’ Liability Act, an employee is not obliged to exercise care to discover danger which results from the employer’s negligence to entitle him to recover in an action for damages for personal injuries sustained while engaged in interstate commerce.

      6. Master and servant — what decisions govern construction of Federal Liability Act. The State courts are governed in their construction, application, and interpretation of the Federal Liability Act by the decisions of the Federal courts.
    7. Master and servant — danger of appliance to employees i/n interstate commerce as jury question. Whether an appliance used by a workman in interstate commerce was allowed to become in such condition by the employer as to endanger the employee was in the instant case a fact question for the jury in the employee’s action for injuries sustained while so employed.
    8. Master and servant — whether employer should Tsnow danger of appliance used in interstate commerce as jury question. Whether the dangerous condition of an appliance used by a workman in interstate commerce was so obvious that the employer knew or should have known thereof, is a fact question for the jury in the employee’s action for injuries sustained while so employed.
    9. Master and servant — when negligence question for jury. Whether a cotter pin was permitted to stick up so as to be likely to catch the clothing of a workman, and whether that condition was so obvious that it was known or should have been known to the employer, were questions for the jury.
    10. Master and servant — when jury finding of employer’s negligence will not be disturbed on appeal. The finding of a jury that an employer was negligent in using an appliance in a dangerous condition will not be disturbed on appeal unless against the manifest weight of the evidence in an action by the employee for personal injuries suffered thereby while engaged in interstate commerce.
    11. Saving questions for review- — failure to object to evidence as waiving admission of other to same effect over objection. Appellant is not entitled to object to admission of evidence by the trial court over his objection on a point on which he allowed a witness to testify to the same effect without objection.
    12. Damages — when amount of verdict does not show jury’s prejudice. A -verdict for $3,250, while large is not so excessive as to indicate the passion and prejudice in the jury which would warrant setting it aside in the case of a workman engaged in interstate commerce for a railway and injured by the employer’s use of a dangerous appliance to the extent of a fractured coccyx bone, bruises and scratches, a knot on the head, and at the time of the trial an inability to grip with the right hand or lift that arm without difficulty.
    Appeal by defendant from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding.
    Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.

      Kramer, Kramer & Campbell, for appellant; Morison R. Waite and William A. Eggers, of counsel.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellee against appellant in the city court of East St. Louis.

The declaration consists of three counts. The first count alleges that appellant was engaged in interstate commerce, with an interstate railroad extending through the county of St. Clair and elsewhere, and that appellee was employed by appellant as a track repairer, etc., on said railroad; that appellant kept and operated a certain motor car, propelled by gasoline power, for the purpose of conveying its employees to the various places where they were to be employed; that said motor car was operated by and in charge of appellant’s foreman; that appellant negligently permitted the sharp ends of a cotter pin to project above the outer surface of a revolving hub and axle in one of the wheels of said motor car, making it dangerous for appellant’s employees to get on and off of said car, which said dangerous condition was known to appellant, or with the exercise of due care and caution should have been known to it, and was wholly unknown to appellee; that while appellee, for the purpose of being conveyed to his place of work, was about to get on said motor car, and as a direct result of appellant’s negligence as above stated, appellee’s clothing was caught by the projecting cotter pin and said revolving wheel, thereby throwing appellee to the ground, dragging him, etc., and alleging the damages for the recovery of which this suit was instituted. The second count is based on the alleged negligence of appellant in failing to equip said car with a self-starter, otherwise its allegations are practically the same as those of the first, with an allegation of due care and caution on the part of appellee for his own safety, just prior to and at the time of his injury. The third count is practically the same as the first, except that it alleges due care on the part of appellee.

To said declaration, appellant filed a plea of the general issue. A trial was had at the September term, 1926, of said court, resulting in a verdict and judgment in favor of appellee for the sum of $3,250. To reverse said judgment, this appeal is prosecuted.

It is practically conceded that both appellant and appellee were engaged in interstate commerce at the time said injury occurred. Appellee was in the employ of appellant as a section hand, and had been so employed for some two and one-half years previous to his injury.

It had been the custom for the section men to report for duty at Casevville, and to be conveyed from there to their place of work on the motor car in question, or on a similar one. Said motor car was not provided with a crank or self-starter, but in order to start the same the foreman took his seat and operated the controls, while some members of the gang pushed the car until it commenced firing. When it began firing, the men so pushing the car had to get on it while it was in motion. The record further discloses that the men pushing the car had no particular place from which to push it, but would take hold of the car for that purpose where it would seem most convenient. The evidence is to the effect that motor cars of this character have one wheel that revolves freely upon the axle, commonly called a loose wheel, and that is so in order that the car may be more easily handled. This loose wheel is held on the axle by a nut and this nut is held in place by a cotter pin through the axle.

On the day in question the foreman, John Higgins, took his seat on the car, and appellee and other of the section men were pushing the same in order to start the motor. While so doing, appellee’s overcoat was caught by the cotter pin, and he was thrown to the ground and dragged some 10 or 15 feet before the car was stopped. Appellee’s injuries, here sued on, resulted from this accident.

Two instructions were given on behalf of appellee, and 14 instructions were given on behalf of appellant. It is contended by counsel for appellant that the court erred in giving appellee’s instruction designated “A”. This instruction is as follows:

“The Court instructs the jury that the plaintiff is not required by law to prove his case beyond reasonable doubt; it is sufficient if he proves his case by a preponderance of the evidence only.”

It is first contended that it was error to give this instruction for the reason that the first count of the declaration fails to allege the exercise of due care on the part of appellee. The parties hereto being engaged in interstate conimerce and this being a suit under the Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., it was not necessary for appellee to prove due care. His contributory negligence, if any, should be taken into consideration by the jury in fixing the amount of the damages, in the event of a recovery by him. Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 49; Brant v. Chicago & A. R. Co., 294 Ill. 606-616.

It is next insisted that said instruction should not have been given because it is contended that the second count of the declaration does not state a good cause of action, being based on the failure of appellant to equip said car with a self-starter or crank to start the same. No demurrer was filed to the declaration, and whether or not the second count states a good cause of action, the first and third counts do. A general verdict will be sustained if there are one or more good counts in the declaration on which to base the same. Cahill’s St. ch. 110, ¶ 78; Chicago & V. Coal Co. v. Moran, 210 Ill. 9; Klofski v. Railroad Supply Co., 235 Ill. 146-149; Scott v. Parlin & Orendorff Co., 245 Ill. 460-465.

It is also contended that the instruction should not have been given because the declaration did not negative the defense of assumed risk. The burden of proof under the Federal Employers’ Liability Act is on the employer, if the defense of assumed risk is relied on. Fisher v. Chicago, R. I. & P. R. Co., supra, 56; Brant v. Chicago & A. R. Co., supra; Kanawha & M. R. Co. v. Kerse, 239 U. S. 576-581, 60 L. Ed. 448-451; Central Vermont Ry. Co. v. White, 238 U. S. 507-512, 59 L. Ed. 1433-1437.

Instructions of this character have been frequently approved by our Supreme and Appellate Courts. Taylor v. Felsing, 164 Ill. 331; Chicago City R. Co. v. Bundy, 210 Ill. 39; Chicago City R. Co. v. Nelson, 215 Ill. 436; Chicago Consol. Traction Co. v. Schritter, 222 Ill 364; Pierson v. Lyon & Healy, 243 Ill. 370-378; Riordan v. Chicago City Ry. Co., 178 Ill. App. 323-330.

It is also insisted by appellant that there can be no recovery in this case for the reason that appellee assumed the risk incident to the use of said car as above set forth, and that there could be no recovery for the injury here sued for.

Section 1 of the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 (U. S. Comp. St. 1918, § 8657) provides:

“Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of sneh employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.”

Under the provisions of said statute, an employee is not obliged to exercise care to discover danger which results from the employer’s negligence. Moore v. Wabash R. Co., 299 Ill. 596-605; Brant v. Chicago & A. R. Co., supra, 617; Pennsylvania R. Co., v. Gavin, 234 Ill. App. 28; Texas & P. R. Co. v. Archibald, 170 U. S. 665-713; Gila Valley G. & N. Ry. Co. v. Hall, 232 U. S. 101; Chesapeake & O. Ry. Co. v. Proffitt, 241 U. S. 468.

In Gila Valley G. & N. Ry. Co. v. Hall, supra, the court at page 100 says:

The motion for direction of a verdict seems to have been rested upon the additional ground that the alleged defect was so obvious that its existence must have been known to the plaintiff, and that he therefore assumed the risk. There was no direct evidence that he knew of the defect, and it does not appear to have been a part of his duties to inspect the machine or the wheel, or to look after their condition. He had been employed for only three or four days in work that required him to ride upon the car, and at the utmost it was a question for the jury whether the defective condition of the wheel was so patent that he should be presumed to have known of it. And then, the question whether the defect was such as to render the use of the car dangerous was in dispute at the trial; hence, it could not be properly held that the risk was indisputably obvious, even to one who knew of the defect. * * * An employee is not charged by law with the assumption of á risk arising out of defective appliances provided by his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the dangers incident to the use of such appliances. * * * An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. But the employee has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to.the employer’s negligence it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.” Citing Union Pac. Ry. Co. v. O’Brien, 161 U. S. 451-457; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64-68; Texas & P. R. Co. v. Swearingen, 196 U. S. 51-62.

■ In Texas & P. R. Co. v. Archibald, supra, the court, at page 674 in discussing this question says, quoting from Missouri Pac. Ry. Co. v. Lehmberg, 75 Tex. 67:

“ ‘Without now considering the question whether the rule in this respect charges an employee with knowledge of defects, except with regard to such- appliances or instruments as he is engaged himself in using, we think it sufficient to say that the law does not, under any circumstances, exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation. Beyond that he has the right to presume, without inquiry or investigation, that his employer has discharged his duty of furnishing him with safe and proper instruments and appliances.’ ”

The State courts are governed in their construction, application and interpretation of the Federal Liability Act by the decision of the Federal courts. Brant v. Chicago & A. R. Co. surpa, 606; Walker v. Iowa Cent. Ry. Co. 241 Fed. 395; Central Vermont Ry. Co. v. White, supra.

It is conceded, and the evidence conclusively discloses, that the car in question was under the control of Higgins, the foreman of appellant, and that appellee had nothing whatever to do with the car, except to assist in starting the same as above set forth.

Appellee testified: “The foreman of the gang operated this motor car. I did not have anything to do with its operation. * * * We pushed the car in the usual way, by the foreman’s orders. Higgins was my foreman. * * * When I pushed the car and was about ready to jump on after the engine started firing, my coat got caught on the wheel or caught on something on there, and wrapped around and throwed me down on the tires, dragging me over the ties. * * * It seems as though the wheel caught it, but afterwards I found out it was the cotter pin had caught it. After the car had stopped, my coat was still hanging on to it.”

Joseph Hill, a witness on behalf of appellant, testified: “I saw Mr. Beck at the time; he was pushing the motor car. * * * He had his overcoat on and it caught on this cotter key and wound around between the cotter key and the nut, until it threw him down. * * * The coat caught on the cotter key first. I could see that from where I sat. It wrapped around the wheel after it had thrown him down; you could see where it caught and kept winding. I saw it get caught. ’ ’

The witness Joe Lutz testified with reference to the condition of the cotter pin: “I seen the key through the wheel with the ends of it turned up toward the head. I judge the key to be about the size of a lead pencil. We call that a cotter pin, and was through the nut with both ends turned around like that, and then on that particular afternoon of the accident I remember seeing it, and took my foot and pushed it down. ’ ’ This latter statement was stricken on appellant’s motion. However, on re-examination said witness testified : “After the accident a man called me down there and I put my foot up against it and pushed it back. One of the ends of the cotter pin was pulled out from the nut.” This testimony was not objected to and is in the record.

Under the evidence in this record, it was a question ■of fact for the jury as to whether or not the cotter pin in question was allowed to stick up so as to be likely to catch on the clothing of the workmen, and as to whether that condition was so obvious that its condition was known to the defendant or by the exercise of due care should have been known to it. If it were so known, or by the exercise of reasonable care should have been known, then it was for the jury to say whether or not appellant was negligent in, using the car in that condition in carrying its employees to and from their work. Their finding in that regard should not be disturbed unless against the manifest weight of the evidence, and we hold that it was not against such weight.

It is next contended by appellant that the court erred in allowing certain of the witnesses to testify to the effect that appellant at the time of the trial had a car which was started with a crank.

While objection was made to the testimony of appellee and the witness Joe Lutz in this connection, the witness Joseph Hill testified, without that objection: “They (appellant) have two motor cars for the purpose of carrying the section men. The other car they got lately; they start it with a crank. They have to turn the crank just the same as you would a Ford. You don’t have to push that new one.” This being the state of the record, appellant is not in a position to urge this objection.

Lastly, it is contended by appellant that the verdict of the jury is excessive. Dr. Little, a witness on behalf of appellee, testified that he examined appellee after the injury, and found that the coccyx bone was fractured; that his shoulder was bruised, and scratched ; and that he had a large knot on the right side of his head. He was placed in a plaster cast for some four or five weeks, and at the time of the trial was still unable to grip with his right hand or to raise his right arm without difficulty. While the verdict is rather large, it is not so excessive as to indicate that the jury were governed by prejudice and passion. That being true, we would not be warranted in reversing the judgment on account of the size of the verdict.

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

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    J. B. Margolies Grocery Company, Appellant, v. I. L. Kopman et al., Appellees.
    1. Negotiable instruments — placing burden of proof on one suing on note as reversible error. After plaintiff had made a prima facie case by introducing the note sued on and defendants had advanced the affirmative defense that the note was without consideration, an instruction that the burden was upon the plaintiff to establish its case by the greater weight of evidence is so erroneous as to warrant reversal.
    2. Instructions — how erroneous instruction directing verdict cannot be cured. The giving of an erroneous and prejudicial instruction which directs a verdict cannot be cured by giving - other instructions which correctly state the law.

      3. Negotiable instruments — where burden of proving defense, that note was without consideration, lies. The trial court should instruct that an affirmative defense to an action on a note, that it was without consideration, places the burden of proving that defense upon the defendant.
    4. Instructions — what matters in issue should he included in instruction directing verdict. An instruction is erroneous which directs a verdict and does not include all the matters in issue which should be considered by the jury before they would be entitled to return a verdict for one party or the other.
    Appeal by plaintiff from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.
    Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed May 14, 1927.
    J. J. Bullington and Felsen & Kane, for appellant.
    Louis P. Zerweck, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.

Judgment by confession was entered in the city court of East St. Louis at the September, 1926, term thereof, for the sum of $3,309.73, in favor of appellant and against appellees. Shortly thereafter, appellees entered a motion, supported by affidavits, to vacate said judgment and for leave to plead. This motion'was allowed. Thereupon, appellees filed a plea of the general issue and a special plea, setting forth that there was no consideration for the execution of the note on which judgment was taken. To said special plea a replication was filed, traversing the allegations thereof. A trial by jury was had, and a verdict was returned finding the issues for the defendants. Thereupon, judgment was rendered against appellant, in bar of action and for costs. To reverse said judgment, this appeal is prosecuted.

The undisputed evidence in the record discloses that in the early part of 1924 appellee S. W. Kopman and his brother M. It. Kopman were engaged in the gasoline and oil business in East St. Louis, and in connection therewith had a storage house at 1300 Walnut Street and a filling station at 3800 State Street, and had leases on a filling station on Fifth Street, one in Madison and one in Venice. Appellee I. L. Kopman is the father and Ida Kopman is the mother of said S. W. Kopman and M. R. Kopman.

In the late summer or early fall of 1924, J. B. Margolies and S. A. Prywitch, officers in appellant grocery company, entered into an agreement with S. W. and M. R. Kopman, in and by which they were to become half owners in said gasoline and oil business. Margolies and Prywitch were to pay into said company so to be formed the sum of $5,000, and were to be equal partners with the Kopmans in said business, while the Kopmans were to have the active control and management thereof. Shortly after the formation of said partnership, there was a sharp drop in the price of gasoline, and some rather severe losses were sustained by said partnership. As to what occurred thereafter, the evidence is conflicting.

The evidence on the part of appellant is to the effect that an agreement was entered into between Margolies and Prywitch with the Kopmans, to the effect that Margolies and Prywitch would withdraw from said business, upon the Kopmans reimbursing them for the amount of money which they had paid into or expended in said business; that the Kopmans did not have the funds with which to make a cash payment, but executed their note, with I. L. Kopman joining them, in the sum of $4,800, dated October 1, 1924, due 15 months after date, payable to the order of J. B. Margolies and S. A. Prywitch, and secured by a chattel mortgage on the property in question. Thereafter some question was raised by the Kopmans as to whether or not Margolies and Prywitch had paid in the sum of $4,800, and the books and accounts were gone over, and after Margolies and Prywitch allowed certain credits, the Kopmans paid $750 to Margolies and Prywitch, and gave them the note here involved, being for $3,309.73, dated December 19, 1925, and signed by “Perfect Motor Fuel Co.,” S. W. Kopman, M. B. Kopman, I. L. Kopman and Ida A. Kopman, and the note for $4,800 was canceled or delivered up. That, in consideration of the making of said notes, Margolies and Prywitch withdrew from said firm and turned over the business and the assets thereof to the Kopmans.

On the other hand, appellees, while conceding that Margolies and Prywitch had paid into said business practically $4,800, and while admitting the making of said $4,800 note and the accounting thereafter to ascertain how much in fact had been paid by said Margolies and Prywitch, and admitting that certain credits were allowed them and that they paid. $750 in cash to Margolies and Prywitch and executed the note here involved as above stated — yet they deny that in so doing they were buying out the interests of Margolies and Prywitch in said business. Appellees insist' that they executed said notes at the request of Margolies and Prywitch, in order to show how much had been paid into said business by Margolies and Prywitch for the purpose of its operation. The testimony of appellees is to the effect that the gasoline and oil were received in carload lots, and as the cars came in, they would procure the money from Margolies to cash the draft accompanying the bills of lading, and that in so furnishing said funds, Margolies had advanced practically $4,800.

S. W. Kopman testified in reference to the transaction involved at the time of giving the note sued on: “We settled it and he (Margolies) told me to give him a new note and new mortgage for the balance that I owed him to be paid in two years after the date of the mortgage. That was done. Neither he nor anyone for the J. B. Margolies Grocery Company paid any money for the note, or for the original note. I paid off the original note and reached the balance.”

The principal ground relied on by counsel for appellant for a reversal of said judgment is the ruling of the court on the instructions. It is seriously contended that appellee’s first given instruction was erroneous, and was of such prejudicial character as to require a reversal of said cause. Said instruction is as follows:

“The Court instructs the jury that the burden rests on the plaintiff to prove its case by a greater weight of the evidence, and unless the plaintiff has proven its case as charged in its declaration by a greater weight of the evidence in the case, you should find for the defendant. If, after a fair and impartial consideration of all the evidence in the case, you do not believe that the plaintiff has established its case as charged in its declaration by a greater weight of the evidence, or if you believe that the evidence in the case is evenly balanced, then you should find the issue for the defendants.”

Counsel for appellees in their brief state: “The issues in the case * * * consisted simply of the one question, whether or not the note was given in return or as evidence for the money paid into the partnership by Margolies and Prywitch, or whether it was given in settlement of their partnership accounts.”

This being the issue, and the evidence being sharply conflicting, it ivas important that the instructions given by the court to the jury should correctly state the law governing the same.

The introduction of the note sued on made the case of the appellant, and, unless some affirmative defense was established, would warrant a verdict in its favor. Appellees admitted the execution of said note on the trial, but insisted that no recovery should be had against them, for the alleged reason that the giving of said note was without consideration. This was an affirmative defense, and raised the only issue in the case. We are therefore of the opinion and hold that the court erred in giving this instruction. Rich v. Naffziger, 248 Ill. 455; Cutter v. Pardridge, 182 Ill. App. 350-353.

Rich v. Naffziger, supra, was an action guare clausum fregit. The plaintiff had made out a record title in himself, and the defendants were claiming said premises under a plea setting up the 20-Year Statute of Limitations. The trial court, at the request of the defendants, gave the following instruction:

“You are further instructed that one of the material allegations of the declaration is that the plaintiff was, at the time of the commencement of said suit, the owner of the close, soil and freehold in question, and the burden of proving such allegation is upon the plaintiff, and it is incumbent upon the plaintiff to prove such allegation by the greater weight of the evidence before you can lawfully find that said allegation is proved. If, upon considering the evidence upon this question, you find that the evidence is equally balanced or that it preponderates in favor of the defendants, however slight, then upon this question your verdict should be for the defendants.”

Discussing the propriety of the giving of said instruction, the court at page 461 said:

“The jury would understand from this instruction that plaintiff was required to prove, by a preponderance of the evidence, in order to establish his ownership and title, that defendant Christian Naffziger and his predecessor in title had not had adverse possession of the premises for the period of twenty years. By their plea defendants claimed title, and it was incumbent upon them to establish that title to the. strip of land in controversy by the greater weight of testimony. Plaintiff met the requirements of the law, under the allegations of his declaration, when he proved record title to the premises. He was not required to disprove the claim of title of Christian Naffziger by adverse possession by a preponderance of the evidence. ’ ’

The court held the giving of said instruction “so erroneous as to require a reversal of the judgment.”

In Cutler v. Pardridge, supra, the court at page 352 in discussing a like question says:

“Plaintiff’s case consisted of proof of the individual transactions engaged in at defendant’s request. Defendant did not deny that they took place, or that the plaintiff was his authorized agent. He relied upon affirmative defenses, and the burden of proving them unquestionably rested upon him. Pelouze v. Slaughter, 241 Ill. 215; Richelieu, Hotel Co. v. Military Encampment Co., 140 Ill. 248; Cothran v. Ellis, 125 Ill. 496; Clews v. Jamieson, 182 U. S. 461. The case, therefore, as tried and submitted to the jury, presented no contention as to plaintiff’s case, whether the transactions he relied on took place and were authorized, but simply whether defendant had established his affirmative defenses, or either of them, that such transactions were invalid and closed out in violation of a contract for credit.”

Counsel for appellees practically concede that said instruction should not have been given, but insist that, inasmuch as two instructions were given on behalf of appellant which correctly stated the law on this issue, the giving of those instructions corrected the error in the giving of the instruction in question. The instruction complained of, given on behalf of appellees, directed a verdict. That being true, and the instruction being erroneous and of a prejudicial character, it would not be cured by other instructions correctly stating the law. American Strawboard Co. v. Chicago & A. R. Co., 177 Ill. 513-523; Illinois Iron & Metal Co. v. Weber, 196 Ill. 526-531; Cromer v. Borders Coal Co., 246 Ill. 451-457; Cantwell v. Harding, 249 Ill. 354-358; Lindberg v. Chicago City Ry. Co., 83 Ill. App. 433-435 ; Cutler v. Pardridge, supra.

It is also contended by appellant that the court erred in giving Instructions 2, 3, 4 and 5, given on behalf of appellees.

It is contended that Instruction 2 is erroneous in failing to require the defense of no consideration to be proven by a preponderance of the evidence. While this objection is not serious, we think the instruction should be so modified.

We have examined Instructions 3 and 4, and are of the opinion that they state correct principles of law, and the court did not err in giving the same.

Instruction 5 directs a verdict. It is insisted by counsel for appellant that it is erroneous in not including all the matters in issue which should be considered by the jury before they would be entitled to return a verdict for one party or the other. We hold this point is well taken, and that the court erred in giving this instruction, for the reasons. stated.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


author: Mr. Justice Higbee

text:
    Bertha Walsh, Appellant, v. E. E. Moore and Lulu E. Moore, Appellees.
    1. Highways and stbeets — when instruction that guest injured in automobile must exercise ordinary care is error. An instruction that an invited guest in an automobile, engaged with the driver in a common enterprise, must exercise ordinary care to avoid injury to herself, without any charge in the declaration that there was a common enterprise or proof thereof, was erroneous.
    ' 2. Highways and Stbeets — when instruction on relative care of driver of automobile and guest is error. An instruction is erroneous which may easily be construed by the jury trying an action for personal injuries alleged due to negligent driving of an automobile to mean that the invited guest, who was injured, and the driver of the car must exercise the same sort of care to avoid injury.
    3. Highways and streets — negligence of automobile driver in injuring guest as jury question. An instruction that there was no legal presumption that a driver of an automobile was negligent in driving when an invited guest was injured, is erroneous in view of the fact that the question of negligence on the part of a defendant in a personal injury ease is for the jury to determine, taking into consideration the nature of the accident.
    4. Highways and streets — assumed rislc not defense against invited guest injured in automobile. An instruction that an invited guest in an automobile assumes the risk of whatever condition the car is in and that the driver need only take care not to increase that risk, is erroneous in treating assumed risk as arising from other than a contractual relation and in stating incorrectly the relation between an automobile driver and his invited guest.
    Appeal by plaintiff from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding.
    Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed May 14, 1927.
    Louis Beasley and Edward C. Zulley, for appellant.
    Kramer, Kramer & Campbell and R. E. Costello, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Bertha Walsh, appellant, sued E. E. Moore and Lulu E. Moore, appellees, in the city court of East St. Louis to recover damages for injuries sustained by her while riding in an automobile owned by appellees and driven by Lulu E. Moore. The first count of the declaration charges that while appellant was riding in said automobile “as a guest of the said defendants, the said defendant, Lulu E. Moore, negligently, improperly and carelessly operated, managed and drove said automobile” so as to cause it to collide with a tree. The second count also charged that the brakes of the automobile were in a defective condition, and that this fact was known to appellees. Appellees filed the general issue and appellee E. E. Moore also filed a special plea in which he stated that at the time in question the automobile was under the sole management and control of appellee Lulu E. Moore and that she was not acting as his agent, servant or employee.

A verdict was returned in favor of appellees and from the judgment entered against appellant this ap-. peal has been perfected. No evidence was offered on the trial by appellees. From the record it appears that for several years prior to the time the injuries complained of by appellant were received, appellees had roomed and boarded with appellant in the city of East St. Louis. On May 30, 1925, appellant and her son went with Mrs. Moore to Hillsboro and brought back a Mr. Richardson and his wife, who spent the remainder of the day and that night visiting appellees at the home of appellant. On May 31, appellee E. E. Moore asked appellant if she would go with Mrs. Moore to take the Richardsons back to their home at Hillsboro. Mrs. Moore also testified that she invited appellant to accompany her. On the way back, just after they had passed through Greenville, and while travelling on a gravel road the car swerved from the road. Mrs. Moore who was driving was unable to stop or control it and there was a head-on collision with a tree. Appellant was thrown out of the back seat where she was riding and received certain injuries. Mrs. Moore, who was called as a witness by appellant, testified that at the time they were going down a hill and that her foot brake did not work; that she had known for several days her foot brake was out of repair; that she could have stopped the car by using the emergency brake and that she should have done so.

The argument of appellant is devoted almost wholly to presenting alleged errors on the part of the trial court in giving instructions in behalf of appellees. The first instruction given in behalf of appellees reads as follows: “The Court instructs the jury that even though you may believe from the evidence that the plaintiff was an invited guest of the defendant, and that she was engaged with the defendant at the time in the machine of the defendant in a common enterprise or purpose, yet, even under such circumstances the plaintiff would not be excused from the exercise of ordinary care to avoid injury to herself.” There was no charge in the declaration that appellant and appellees were engaged in a common enterprise nor was there any proof that this was so. From this instruction the jury might well understand that the rule of law as to the diligence required of appellees would be the same whether appellant was in the automobile as a guest of appellees or whether appellant arid appellee Lulu E. Moore were engaged in a common enterprise or purpose. The rule of law as to the diligence required by the driver of an automobile in regard to a person riding as an invited guest and in regard to one riding with another upon a common or joint enterprise or purpose is entirely different as is also the rule of due care and caution required of one riding as an invited guest and one riding as a participant in a joint enterprise with the driver. (Barnett v. Levy, 213 Ill. App. 129.) The instruction was misleading and should not have been given.

Instruction 3 given in behalf of appellant is as follows: “The Court instructs the jury that under the circumstances in this case, under the law it was as much the duty of the plaintiff, if she had the opportunity to do so, as it was the duty of the defendant to learn of danger and to avoid it if practicable, and if you believe from the evidence in this case that the plaintiff, by using her faculties with ordinary and reasonable care in looking out for danger and in determining whether or not the automobile was defective, could have avoided injury to herself upon the occasion in question, and if you further believe from the evidence that plaintiff did not use such faculties with ordinary and reasonable care in looking out for danger, then the plaintiff cannot r'ecover in this case and your verdict should be one finding the defendant not guilty.” We do not understand that it is as much the duty of an invited guest riding with the owner and driver of an automobile to learn of danger and to avoid it as it is of the driver. The evidence in this case shows that appellant was riding on the rear seat and was having nothing to do with the driving of the automobile. The Appellate Court of the first district in the case of Christensen.v. Johnston, 207 Ill. App. 209, quoted with approval the following language from Clarke v. Connecticut Co., 83 Conn. 219.

“What conduct on the passenger’s part is necessary to comply "with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported, manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.” This instruction might readily be construed by jurors as requiring the same rule of conduct in regard to exercising due care of appellant as of the driver of the car.

Instruction 6 in behalf of appellee advised the jury that there was no presumption in law that Mrs. Moore was negligent or careless in the driving, managing or operation of the automobile in question. This instruction is misleading and has been condemned. The question of negligence on the part of a defendant in a personal injury case is one of fact for the jury to determine, and the nature of the accident may be considered by them in determining that question, and due regard given thereto. (Cohen v. Weinstein, 231 Ill. App. 84; West Chicago St. R. Co. v. Petters, 196 Ill. 298.)

By instruction No. 8 the court advised the jury that if the evidence showed appellant was riding in the automobile as the guest of appellee and by “his” invitation then appellant assumed the risk of the condition the automobile was then in, and the only duty on the part of appellee towards appellant would be to exercise ordinary care so as not to increase the danger of the undertaking or to create a new danger to the plaintiff. This instruction was clearly erroneous. The doctrine of assumed risk applies only where there is a contractual relation between the parties. (Mueller v. Phelps, 252 Ill. 630; O’Rourke v. Sproul, 241 Ill. 576; Conrad v. Springfield Consol. R. Co., 240 Ill. 12; Shoninger Co. v. Mann, 219 Ill. 242.) This.instruction also fails to state the correct rule of law as to the duty owed by appellees to appellant, who was riding as the invited guest. Barnett v. Levy, supra.

The instructions herein pointed out as erroneous and misleading constitute reversible error and it follows that this judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Charles J. Schiele, Administrator de bonis non of the Estate of Anna Schlensker, Deceased, Appellee, v. Phena Dehn, Executrix of the Last Will and Testament of Louis Dehn, Deceased, et al. Henry C. Schlensker and Irene Schlensker, Appellants.
    Appeal and error — to what court the approval of an administrator’s final report should not he talcen. Where from an examination of the whole record and the appeal bond it appears that the appeal was not taken from an order to sell land to pay debts but from approval of an administrator’s de honis non final report, the appeal, which should have been taken to the circuit court under Cahill’s St. eh. 3, 1126, will be dismissed in the Appellate Court.

      Appeal by defendants from the Probate Court of St. Clair county; the Hon. C. E. Chamberlain, Judge, presiding.
    Heard in this court at the March term, 1927.
    Appeal dismissed.
    Opinion filed May 14, 1927.
    W. E. Knowles, for appellants.
    James O. Miller and W. R. Weber, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

It appears from the statements of counsel that Charles J. Schiele, administrator de bonis non of the estate of Anna Schlensker, deceased, filed two petitions to sell real estate to pay debts in the county court of St. Clair county, and that sales were had and reports thereof made to the court. However, the proceedings under only one of the petitions are incorporated in this record, this being the petition filed October 14, 1924, upon which a decree was entered on May 21,1925. On November 18, 1926, the administrator filed his final report purporting to make distribution of all the estate including the proceeds from both sales of real estate. On December 8, 1926, Irene Schlensker, the only heir-at-law, and Henry C. Schlensker, the surviving husband of Anna Schlensker, deceased, plaintiffs in error, filed objections to the approval of this final report, and also filed a petition to modify the decree entered May 21,1925, by striking from the decree certain directions to appellee to pay from the proceeds of the sale, costs of administration including attorney’s fee, certain tax liens and the amount of several mortgages. On December 9, 1926, appellee filed an amended final report to which appellants again -filed objections. Appellee moved to strike appellants ’ motion to amend the decree entered May 21, 1925.

Upon motion of appellee the court on January 6, 1927, struck appellants’ motion to modify the decree from the files and also overruled their-objections to appellee’s final report and entered an order approving the same.

The record shows that said Henry C. Schlensker and Irene Schlensker prayed an appeal from this order of the county court to the circuit court of St. Clair county which was allowed upon the execution of an appeal bond; that this appeal bond was filed and the clerk directed to certify all orders of the probate court to the circuit court. The record further shows that appellants also prayed an appeal to this court which was allowed and an appeal bond filed. This appeal bond recites among other things, that whereas, on the 21st of May, 1925, a certain decree was entered on petition of appellee in said probate court, and whereas certain other orders were made concerning the distribution of the proceeds derived from the sale of certain real estate under said decree and including the overruling of appellants’ objections to the amended final report of appellee and “from which said decree and all other orders entered in said cause” appellants have prayed for and obtained an appeal to this court, etc. From an examination of this entire record and the recital of appellants’ bond filed herein it clearly appears that this must be treated not as an appeal from an order to sell lands to pay debts, but as an appeal from an order of the county court approving appellee’s final report as administrator de bonis non, and should have been taken to the circuit court as provided by section 124 of the Administrator’s Act, Cahill’s St. ch. 3, ¶ 126, where a trial de novo could have resulted. This court is therefore without jurisdiction to entertain this appeal and the same must be dismissed.

Appeal dismissed.


author: Mr. Presiding Justice Barry

text:
    St. Louis Union Trust Company, Appellee, v. Wabash, Chester & Western Railroad Company. John M. Dillavou and Jesse Dimond, Jr., Appellants.
    1. Railroads — diligence and a meritorious defense in setting aside foreclosure default. A railroad company must show due diligence and a meritorious defense to warrant setting aside a default entered against it on foreclosure of a mortgage.
    2. Railroads — diligence and a meritorious defense in setting aside foreclosure default by stockholders. Stockholders of a railroad company which has been defaulted on foreclosure of a mortgage must show due diligence and a meritorious defense to re-open a default.
    3. Appeal and error — what errors to appear in abstract. An abstract must present every error relied on for a reversal.
    4. Railroads — lack of diligence in petitioning to open foreclosure default. Stockholders of a railroad company, which was defaulted on foreclosure, were guilty of lack of due diligence in not petitioning to open the default until after 18 months therefrom.
    5. Railroads — defects in pleadings as defense to open a foreclosure default. A mere technical defense based on a defect in pleading, is not a meritorious defense on the part of stockholders that will authorize the re-opening of the default of a railroad in foreclosure proceedings.
    6. Railroads — validity of contract compromising foreclosure suit and renewing the debt. A contract between a railroad company and its bondholders to renew a bond and mortgage debt is not invalid because it seeks to compromise and get rid of a foreclosure suit and the receiver therein appointed.
    7. Corporations — assignee of stock suing on transaction assented to by the assignor. An assignee of stock cannot maintain a suit in regard to transactions with the corporation assented to by his assignor.
    8. Railroads — appeal on contract claiming invalidity without evidence on trial thereon. Stockholders of railroad company seeking to open its foreclosure default cannot claim on appeal that a contract between the company and bondholders to renew a bond debt was invalid as without consent of the public utilities commission, after failing to produce evidence thereon at the hearing.
    9. Railroads — renewing-railroad mortgage by directors representing total stock. Authorization of a contract renewing a mortgage against a railroad company by directors representing practically all the stock of the company is the same in legal effect as that of stockholders in a meeting held for the purpose.

      10. Railroads — informal renewal of mortgage as equitable mortgage. A contract for the renewal of a mortgage on railroad property even though not operating as a renewal for lack of formal requirements, may be regarded as an equitable mortgage.
    11. Railroads — defense of improper framing of foreclosure bill under petition to open default. A claim of a railway stockholder that a bill of foreclosure was not framed on the theory of an equitable mortgage is not a meritorious defense which will enable him to open default taken against the railway company under the bill.
    12. Foreclosure — when not barred by limitations. The right to foreclose a mortgage is not barred by Limitations Act, § 11, Cahill’s St. eh. 83, % 11, where, after foreclosure proceedings had been instituted they were compromised under an agreement by which the mortgagee consented that the mortgage debt should continue in force as a binding obligation and was to be paid according to its original terms.
    13. Foreign corporations — foreclosing mortgage mide before license requirements against. A company appointed trustee in a mortgage made before the State requirement that foreign corporations doing business in this State must have a license, may foreclose the mortgage thereafter though without such license.
    14. Railroads — effect of excessive debt beyond assets on stockholders’ interest in foreclosure. With fair cash value of the entire assets of a railroad company only a quarter that of the debts and liabilities, the stockholders have no financial interest in the result of a foreclosure of the railway property.
    Appeal by defendants from the Circuit Court of Randolph county; tho Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed July 12, 1927.
    Rehearing denied August 16, 1927.
    West & Eckhart, for appellants; William L. Bourland, John Neal Campbell and Louis C. Jesseph, of counsel.
    Geo. B. Gillespie, for appellee; Gillespie & Gillespie and Hugh J. Dobbs, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The Wabash, Chester & Western Railroad Company (hereinafter called the Wabash Company), on September 19, 1888, executed a mortgage on its property to secure bonds to the amount of $300,000. On December 23, 1892, it executed another mortgage covering the same property together with other properties acquired from two other railroad companies to secure a bond issue of $1,000,000, containing a recital that one of the purposes for which the mortgage was given was to retire, or take up the first mortgage. Upon the execution of said second mortgage $390,000 of the bonds secured thereby were issued and sold.

In 1914 all of the bonds secured by the first mortgage were still outstanding and had not been exchanged for second mortgage bonds. In July, 1914, a bill was filed to foreclose both mortgages, the first for the full amount thereof and the second for $390,000 together with the interest then due. A decree of foreclosure was entered on June 30,1916, but there has never been a sale thereunder. On April 17, 1920, a contract was entered into between the holders of the first mortgage bonds, the Wabash Company and the Southern Gem Coal Corporation by the terms of which the first mortgage bonds were exchanged for $300,000 of the bonds secured by the second mortgage, and the second mortgage bonds were to be paid by the Wabash Company according to their terms, with interest from May 1, 1920. The execution of that contract by the officers of the Wabash Company was duly authorized by the board of directors. Thereafter, on March 10, 1922, an order was entered in the said foreclosure suit as follows: “It is further ordered that this cause be removed-from the docket as all matters between the complainants and the defendant railroad company are shown to have been amicably settled.”

On June 3, 1924, a bill was filed to foreclose the second mortgage for the amount of-the bonds which had been issued, viz: $690,000.00 and interest thereon, and for the appointment of a receiver. The Wabash Company, by its president, waived notice' of an application for the appointment of a receiver and a receiver was appointed on J anuary 4,1924. On J anuary 13, 1924, a second bill was filed for the foreclosure of the same mortgage in which additional averments were made and on March 4, 1924, the two cases were consolidated and the appointment of the receiver was confirmed by the court. By the same order the Wabash Company was defaulted and the bills taken as confessed.

Appellant, Jesse Dimond, Jr., as a stockholder of the Wabash Company, filed a petition in September, 1926, asking that the default of the Wabash Company be set aside and that he and all other stockholders who cared to do so might be allowed to intervene and to plead, answer or demur to the bills of complaint. The petition is too lengthy to set out in this opinion, 21 reasons being assigned therein for the granting thereof. As to the petition of appellant, John M. Dillavou, the abstract simply contains the following statement: “Motion and petition of John M. Dillavou, a stockholder of the Wabash, Chester & Western Railroad Company for himself and such other stockholders as may care to join with him in his motion and petition, the motion and petition being grounded upon the same matters set forth in the motion and petition of Jesse Dimond, Jr., and the same are therefore not again abstracted.”

The court denied the petitions and petitioners appealed. If the Wabash Company were asking that the default be set aside and for leave to plead, it would be required to show due diligence and that it had a meritorious defense. Nitsche v. City of Chicago, 280 Ill. 268. Appellants concede that the same rule applies to them. Mr. Dimond did not verify his petition, but the affidavit of Mr. Dillavou is attached thereto in which he states that knowledge of the facts set out in the petition first came to Mr. Dimond on or about September 29, 1926. That was purely hearsay and there was no other showing as to when Mr. Dimond learned the facts. The abstract of the record fails to show that the petition of Mr. Dillavou was verified by anyone or when he acquired knowledge of the facts. An abstract must be sufficient to present every error relied upon as the court will not search the record to find errors not disclosed by the abstract. People v. Armour, 307 Ill. 234. The Wabash Company had been defaulted more than eighteen (18) months before the petitions were filed. We would not be warranted in holding that the court erred in its conclusion that appellants failed to show due diligence in asking to have the default set aside.

It is argued that the bonds and mortgage in question were merged in the decree of foreclosure of June 30, 1916, and Wayman v. Cochrane, 35 Ill. 152; Jocelyn v. White, 201 Ill. 16, and similar cases are cited in support of that contention. Those cases are to the effect that if a judgment has been taken upon a note secured by mortgage, the note becomes merged in the judgment and the mortgage no longer stands as security for the note but for the judgment, and to authorize the inclusion of the amount of the judgment in the foreclosure decree the judgment should be declared upon in the bill. It is apparent, therefore,. that this point is merely technical, simply pertaining to a matter of pleading and does not amount to a meritorious defense.

It is argued that the contract of April 17, 1920, is void because it was executed while the property of the Wabash Company was in the hands of a receiver. The contract was made for the purpose of compromising and getting rid of the foreclosure suit and the receiver and we know of no rule of law that would warrant us in holding the contract invalid on that ground. It is argued that the contract is void because the resolution of the board of directors authorizing its execution was passed by the voters of the Coles whose interests were antagonistic to those of the other stockholders. It is a fair inference from the record that appellants did not become stockholders of the Wabash Company until after the execution of the contract and that those from whom they procured their stock had authorized or ratified the execution of said contract. An assignee of shares of stock in a corporation acquires no greater rights than his assignor, as he holds by the same title and subject to the same liability, and he cannot maintain a suit in regard to transactions with the corporation done or assented to by his assignor. Babcock v. Farwell, 245 Ill. 14.

The record discloses that appellants clearly understood that the contract of April 17,1920, was intended to revive the mortgage and the bonds secured thereby and to make the bonds payable according to their terms. This is shown by the minutes of a meeting of the stockholders of the Wabash Company held on September 29, 1920, called for the purpose of giving consideration to the settlement of the first foreclosure proceedings. At that meeting 12,417 shares of the 12,500 shares of the capital stock of the company were represented. Mr. Dillavou was present in his own behalf and held a proxy to represent Mr. Dimond. The stock of both appellants was then and there voted by Mr. Dillavou in favor of a resolution, the preamble to which reads as follows: “Whereas, the holders of the bonds of the Wabash, Chester & Western Railroad Company have settled the foreclosure proceedings that have been pending in their behalf in the Circuit Court of Randolph County, Illinois, and said proceedings are to be dismissed; and one of.the provisions of the compromise is that the second mortgage so sought to be foreclosed should remain in full force to secure the outstanding bonds, issued and to be issued, but that the clause therein providing that six months shall elapse after any default of the mortgagor before steps for foreclosure may be taken should be abrogated.”

It is argued that the contract did not revive the bonds and mortgage because the reissuance or revival of a former bond issue requires the consent of the Public Utilities Commission. That contention was not specifically set forth in the petitions. The nearest approach thereto was that “The contract of April 17, 1920, was void as to the defendant railroad company, because there was no compliance by the railroad company with the provisions of the Act of the State of Illinois relating to Public Utilities.” It will be observed that nothing is thereby suggested indicating that appellants were claiming that the consent of the Public Utilities Commission should be obtained in order to revive the bonds and mortgage. Appellants offered evidence in support of their petitions, but they offered no evidence upon the subject now under consideration. For that reason they are in no position to urge that question in this court. In any event, there was no new bond issue, but simply an exchange of bonds secured by the first mortgage for bonds of the second bond issue. All parties knew and understood that the second mortgage was to continue in full force and effect for the security of $690,000 of the bonds secured thereby.

.It is argued that the mortgage was not legally revived because the revival was not authorized at a stockholders ’ meeting with the concurrence of the holders of two-thirds (2/3) of the capital stock. The directors who authorized the execution of the contract which revived the mortgage were the owners of all, or practically all of the stock of the Wabash Company and their action was in legal effect that of the stockholders the same as if the latter had acted at a regular meeting for the purpose. Thomas v. Citizens’ Horse Ry. Co., 104 Ill. 462. It is argued that a mortgage can only be revived by an instrument having all the formalities necessary to create a valid mortgage. Even if it could be said that the contract of April 17, 1920, did not operate as a revival of the mortgage, at law, yet it would certainly operate as an eq3iiiable_mortgage. Peckham v. Haddock, 36 Ill. 38. But appellants say that the bill should be framed on the theory that it was for the foreclosure of an equitable mortgage. But if that contention is sound it simply presents a question of pleadings and not a meritorious defense.

It is argued that the right to foreclose the mortgage in question is barred by section 11 of the Limitations Act, Cahill’s St. ch. 83, 11. As long as the mortgage indebtedness exists as a binding obligation on the mortgagor, the mortgage may be foreclosed upon the mortgaged premises. Richey v. Sinclair, 167 Ill. 184. We think it fully appears that the Wabash Company and appellants consented that the mortgage debt should continue in force as a binding obligation and that it was to be paid according to its original terms. The bonds do not mature until January 1, 1928.

It is argued that St. Louis Union Trust Company, trustee, in the mortgage, was a foreign corporation doing business in this State and did not have a license at the time of the institution of the suit and that by reason thereof it cannot maintain its suit. Farmers’ Loan & Trust Co. v. Lake St. El. R. Co., 173 Ill. 439, and similar cases are cited in support of that contention. We do not think those cases applicable, and are of the opinion that the suit may be maintained under Richardson v. United States Mortgage & Trust Co., 194 Ill. 259.

Some other contentions are insisted upon by appellants. We have given them due consideration and do not deem it necessary to further extend this opinion by discussing each of them. We find that nothing is presented in the way of a meritorious defense.

Appellants stipulated, in the trial court, that the bonded indebtedness and current liabilities of the Wabash Company exceeded $2,000,000 and that the fair cash value of the entire assets of that company do not exceed $500,000. It is quite apparent, therefore, that appellants, as stockholders, have no financial in- j terest in the result of this foreclosure proceeding. / From their own admission their stock is utterly worthless. It is a fair inference that in asking that the default of the Wabash Company be set aside and for leave to plead, etc., they could not have been prompted by a desire to protect their interestsriis stockholders) in the corporation. In any event, appellants failed to show due diligence and a meritorious defense and for that reason the court did not err in denying their petitions. The decree is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    Homer A. Pfeiffer et al., Complainants and Appellees, v. Richard G. Kemper et al., Defendants, on Appeal of Richard G. Kemper, Appellant. Separate Appeal of Church Extension Board of the Presbytery of Chicago, Intervening Petitioner and Appellant.
    Gen. Nos. 31,634 and 31,635.
    1. Partition — proper order to be appealed from by interveners. Interveners in a partition proceeding properly appealed from the final order of partition and not from an interlocutory order refusing them permission to file their intervening petitions.
    2. Partition — contract right in decedent’s estate as ground for intervention. Under Cahill ?s St. ch. 106, Tf 14, providing that those having an interest in property may intervene by petition in proceedings to partition it, those named by a husband to be made beneficiaries in his wife’s will under contract that she would so do in case she survived him, which she did, had such interest in the decedent wife’s property as entitled them to file intervening petitions in a proceeding for partition thereof.
    3. Wills — when contract to devise will be enforced. A person owning property may contract to dispose of it by will in a particular way and such contract if'based on sufficient consideration and clearly established will be enforced in equity.
    4. Wills — consideration for contract for mutual wills. A contract under seal between husband and wife reciting that certain property was conveyed to them in joint tenancy “for family peace and harmony” and containing the promise of each to make a certain described will in return for the like promise of the other, depending on which one survives, shows a good consideration between the parties.
    5. Wills — when beneficiaries need not be named in contract to devise. A contract by the owner of property to dispose of it by will is not invalid as not naming the beneficiaries if the contract points out the beneficiaries shall be those named by another party who in fact did so name them by a written instrument.
    6. Partition — what entitles party to appeal from decree giving all he ashed. One who has had dismissed in partition proceedings his cross-bill in which he properly asked that other persons be brought in and it be determined whether they had an interest in the property and to what extent, has suffered from an adverse decree to the extent that he may appeal therefrom although the trial court gave him all the share of the property that he claimed.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed June 7, 1927.
    Henry B. Spurlock and Edward H. S. Martin, for Richard S. Kemper, appellant.
    Hoover & Cody, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

. In proceedings for partition of certain improved premises in Cook county, commenced by the filing of appellees’ bill on May 19, 1925, a decree was entered on June 25,1926, ordering partition as prayed. From this decree separate appeals were perfected in the Supreme Court — one by Bichard G. Kemper, a defendant to the bill, and the other by the Church Extension Board of the Presbytery of Chicago, a religious corporation (hereinafter called the Church Board), which, with three other similar corporations, had asked leave (by intervening petition) to be made parties defendant to the bill and to file an answer, etc., and which leave the circuit court had denied. After the two appeal causes had been consolidated in the Supreme Court, it there was ordered, on December 23, 1926, that they be transferred to this Appellate Court, upon the ground that the Supreme Court had no jurisdiction thereof, as a freehold was not involved. (Pfeiffer v. Kemper, 323 Ill. 622.)

In the bill it is alleged inter alia that the premises sought to be partitioned are owned by complainants and defendants in the following proportions: Christina A. Ermeling, Margaret Baltz and Richard Gr. Kemper an undivided one-fourth each, and Homer A. Pfeiffer, Sadie Parsons, Florence M. Friedl, Dorothy A. Plunder and Frank W. Pfunder an undivided one-twentieth each; and that they acquired their title by inheritance from Anna K. Kruse, alias Katherine A. Kruse, who died intestate on March 26, 1924, and who became the owner of the premises on September 4, 1920, upon the death of her husband, Henry F. Kruse, with whom she had held the premises in joint tenancy.

In the amended answer of Richard Gr. Kemper and wife, which admitted all allegations of the bill as to title and heirship, it is alleged that there was recorded in the recorder’s office of Cook county on April 21, 1925, an agreement under seal (copy set out in the answer), dated and acknowledged May 1, 1914, between Anna K. and Henry F. Kruse, in which it was provided that, immediately upon the death of either, the survivor should make a will providing for the sale of the premises at the survivor’s death, and that one-third of the proceeds of her estate if she should be the survivor, or two-thirds of the proceeds of his estate if he should be the survivor, after paying all debts and expenses, should go to such beneficiaries as should in writing have been specified by the first decedent; that certain corporations (including the appellant Church Board) and certain persons claim that Henry F. Kruse, during his lifetime on July 21, 1914, executed in writing and delivered to Anna K. Kruse a written instrument (copy set ont in the answer) specifying them as beneficiaries to be given legacies by her will, to be paid out of one-third of the net proceeds of the sale of the premises; that said corporations and persons always have claimed, and do now claim, that the instruments constitute a charge upon the premises or upon the proceeds of the sale thereof, but said claims are “unfounded in law and in fact,” yet they nevertheless “constitute a cloud upon the title of these defendants and complainants”; that unless the beneficiaries are made defendants to the bill and brought before the court, so that their claims can be passed upon, the price to be realized at any partition sale will be one-third less than it otherwise would be; and that the beneficiaries are necessary parties, and, on account of the failure to make them parties, complainants are not entitled to the relief as prayed. The written instrument of July 21, 1914, signed by Henry F. Kruse and addressed to his wife, is in part as follows:

“Under an agreement executed by both of us bearing date on or about May 1,1914,1 hereby specify the following beneficiaries to be given legacies by you in your will to be executed in case you survive me and to be paid out of the one-third of the net proceeds of the sale (after payment of debts and all other allowable expenses) of the property where we now live known as,” etc. (Here follows a description of the premises):
“To said beneficiaries I request you, by your will, to leave legacies as follows, and I specify them as follows:
“To the Church Extension Board of the Presbytery of Chicago, a religious corporation, $200;
“To the Church of the Covenant in Chicago, $500;
“To the Presbyterian Home, in Chicago, a corporation, $200;
“To the Board of Missions for Freedmen of the Presbyterian Church in the United States, a corporation, $100;”
“ (To eight persons, named and otherwise described, various sums, aggregating $1400.)
“In case the said net proceeds of the sale of said premises shall not be sufficient to pay all said legacies in full, then said legacies to be paid pro rata.”

Kemper and wife also filed an amended cross-bill, containing substantially the same allegations as their answer, and making as cross-defendants all parties to the original bill except themselves, and also all those corporations and living persons claiming to be beneficiaries by virtue of said agreement and written instrument. The prayer is that said instruments be construed, etc., and be adjudged to be a cloud upon the title of Richard Gi. Kemper and the other heirs of Anna K. Kruse, and that partition be decreed, etc. Complainants demurred to the cross-bill and filed exceptions to the answer. On February 9, 1926, the court sustained the demurrer and the exceptions, dismissed the cross-bill for want of equity, and further ordered that Kemper and wife plead to the original bill instant er, and, they refusing so to do, further ordered that they be considered in default for want of an answer and that the original bill stand as confessed as to them. Although the Church Board, and said other three religious corporations, had not been made parties to the original bill, the court included all of them in the default order. On February 13, 1926, the Church Board and two of said three religious corporations appeared and moved the vacation of the order of February 9th, which motion was continued. On April 19, 1926, on motion of Kemper and wife, the default order of February 9th, as against them (but not as against the Church Board and said other religious corporations) was vacated, and they were given leave to file an amended answer, which they did, and, after a hearing upon complainants’ exceptions thereto, the court sustained the exceptions, and again defaulted Kemper and wife for want of an answer — they having elected to stand by their amended answer. On the same day (April 19th) the Church Board and said other religious corporations appeared and asked leave to file their intervening petition, in which they alleged substantially the same facts as set forth in the amended answer of Kemper and wife. The prayer was in substance that they be made parties to the original bill and be allowed to file an answer; that complainants and defendants and all other interested parties answer the petition; that the premises be sold pursuant to the provisions of said written agreement of May 1, 1914, and said subsequent written specification of beneficiaries made by Henry F. Kruse; and that petitioners and all other specified beneficiaries may be decreed to have such an interest respectively in the proceeds of such partition sale, and be paid out of said proceeds such amounts respectively, as directed by said written agreement and written specification of beneficiaries. After a hearing the court denied leave to petitioners to file their petition. On Junó 25, 1926, the court entered the decree for partition, etc., in which, after setting forth the names of the several owners of the premises and their fractional interests as alleged in the bill, and how they acquired title, etc., the court found that “said real estate and premises are the only real estate owned in common by said parties,” and “no other person or persons than those named have any interest in or title to the same, in possession, remainder, reversion or otherwise” ; that the premises are improved with a 3-story stone and brick building, consisting of three flats, and that the same be partitioned, etc. And, after naming the commissioners, the court decreed inter alia that, if they found that a division of the premises could not be made without manifest prejudice to the parties in interest, they should appraise the value of the same, etc., and make report, etc.

As to the separate appeal of the Church Board from said final decree of June 25, 1926, appellees’ counsel contend that it has appealed from the wrong order or decree, and that it should have appealed from the order of April 19,1926, wherein the court refused to allow it (and the other three religious corporations) to file their intervening petition. We cannot agree with the contention. The record discloses that on February 9, 1926, the court not only defaulted Kemper and wife for want of an answer, but also the Church Board and said other religious corporations, and, as to them, it does not appear that such order ever was vacated. That order of default was interlocutory (Jenkins & Reynolds Co. v. Wells, 220 Ill. 452, 454), as was the portion of the order dismissing the cross-bill of Kemper and wife (McMahon v. Quinn, 140 Ill. 199, 201). And, in view of the fact that the final decree for partition had not been entered when leave to file said intervening petition was denied by the court on April 19th, it could not then be determined whether such denial would be prejudicial to the Church Board. In Young v. Matthiessen & Hegeler Zinc Co., 105 Ill. 26, an appeal from an order of the trial court refusing to allow appellants to become parties defendant to a bill in chancery filed against other parties was dismissed by the Supreme Court. In the opinion (p. 27) it is said: “No final decree has been entered in the case, and until such decree is entered how can it possibly be known that this refusal has prejudiced appellants’ rights? It may be that the decree will accomplish, without appellants’ intervention, precisely what they claim ought to be done. The order is clearly interlocutory, and therefore not the subject of an appeal.”

As to the merits of the consolidated appeals, it is contended in substance on behalf of appellant, Kemper, that, because of the provisions of the agreement of May 1,1914, between Anna K. and Henry F. Kruse, and the latter’s specification of beneficiaries (in conformity with said agreement) by the written instrument of July 21, 1914, the court erred in sustaining exceptions to the Kempers ’ answer, and in dismissing the Kempers ’ cross-bill and in entering the final partition decree without having made said specified beneficiaries parties defendant to complainants’ bill and having adjudicated as to their claimed rights. And it is contended in substance on behalf of appellant, the Church Board, that, because of said written instruments, the court erred in refusing to allow it (and the other three religious corporations, designated beneficiaries) to intervene and become parties defendant to the bill and set forth their claimed interests in the proceeds of the proposed partition sale of the premises, and have their rights and interests (whatever they be) protected by the partition decree. After considering the present record we are of the opinion that both contentions are well founded. Because of said written instruments, we think that, under the provisions of sections 5, 6, 14 and 39 of the Partition Act, Cahill’s St. ch. 106, ¶¶ 5, 6, 14 and 39, said Church Board, as well as the other designated beneficiaries, had such an interest in the partition proceedings as made them necessary parties defendant. In section 6 of the act, Cahill’s St. ch. 106, ¶¶ 6, it is provided that “Every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition.” In section 39 of the act, Cahill’s St. ch. 106, ¶ 39, it is provided in part that in all partition suits “the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds,” etc. (See Hurlbut v. Talbot, 273 Ill. 356, 363 et seq.; Plummer v. Worthington, 321 Ill. 450, 459.) In section 14 of the act, Cahill’s St. ch. 106, ¶ 14, it is provided that, during the pendency of a partition suit, “any person claiming to be interested in the premises to be assigned or aparted may appear * * * and assert his rights by way of interpleader; and the court shall decide upon the rights of all persons appearing as aforesaid, as though they had been made parties in the first instance.” Under this section 14 we think that the Church Board, or any of the other designated beneficiaries, could properly file an intervening petition and be made a party defendant to the bill and set up its rights, particularly so as none was made a party defendant to the bill. (See Wightman v. Evanston Yaryan Co., 217 Ill. 371, 376.)

As to the agreement of May 1, 1914, between Anna K. and Henry F. Kruse, followed by said written designation of beneficiaries by the latter, we understand it to be the established rule in this State that it is competent for a person owning property to make a contract to dispose of it by will in a particular way, and that such a contract, when based upon a sufficient consideration and clearly established, will be enforced in equity. (Oswald v. Nehls, 233 Ill. 438, 443; Whiton v. Whiton, 179 Ill. 32, 54; Klussman v. Wessling, 238 Ill. 568, 571.) In the Klussman case it is stated: “The theory upon which the courts proceed is to construe such an agreement (unless void under the Statute of Frauds or for other reasons) to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisee and to enforce such trust against the heirs and personal representatives of the deceased.” But it is contended by counsel for appellees that this rule should not be applied in the present case because (1) it does not appear that said agreement of May 1,1914, is based upon any consideration, and (2) the names of the beneficiaries do not appear therein. We do not think that either contention is meritorious. As to the first it is to be noticed (a) that the agreement is under seal; (b) that it recites on its face a consideration, viz, that of a deed from one Bryan, conveying the premises to Anna K. and Henry F. Kruse in joint tenancy and “for family peace and harmony”; and (c) that it contains the promise of each party to make the designated will in consideration of a like promise by the .other, and depending upon which will be the survivor. In other words there is a “promise for a promise,” and such is “a good consideration everywhere.” (Funk v. Hough, 29 Ill. 145, 148; Bishop v. Busse, 69 Ill. 403, 407.) As to the second contention, that the names of the beneficiaries do not appear in the agreement of May 1, 1914, it is to be noticed that it is provided therein that if Anna survive Henry “she shall at once, after his death, make a last will and testament (which as alleged she did not do), directing and providing for the sale of said premises at her death and that one-third of the net proceeds of her estate, after payment of debts and all other allowable expenses, shall go to such beneficiaries as shall in writing have been specified by said Henry.”. In conformity with said agreement it appears that Henry (by the written instrument of July 21, 1914, delivered to Anna) specified as beneficiaries the Church Board and said other religious corporations and persons. By these two written instruments the beneficiaries could definitely be ascertained. And we think that the principle, as stated in First Nat. Bank of Elgin v. Schween, 127 Ill. 573, 580, is applicable, viz: “It is not essential to the validity of a deed of trust that the beneficiaries should appear therein by name. It will be sufficient if they are so described or designated that they may be ascertained and distinguished.”

As to the appeal of Kemper, appellees’ counsel contend that the partition decree is in his favor in that he was awarded an undivided one-fourth interest in the premises sought to be partitioned, etc., and that he cannot complain of a decree in his own favor. But in those portions of his answer to which exceptions were sustained, and in his cross-bill which was dismissed, he demanded (properly we think under the circumstances) that before a partition be decreed the said beneficiaries be made parties to the litigation, their rights be adjudicated, and their claims be removed if possible as clouds, etc. The court refused these demands and in this respect we think that the decree is adverse to him and that he properly has appealed.

Our conclusion is that the partition decree appealed from be reversed and that the cause be remanded to the circuit court with directions to overrule the exceptions to the amended answer of Kemper and wife' to complainants’ bill, overrule complainants’ demurrer to the Kempers ’ amended cross-bill and allow the intervening petition of the Church Board and the other three religious corporations to be filed, etc., and that the claimed rights of the Church Board, and the other beneficiaries named in the written instrument of July 21, 1914, be considered and adjudicated, etc., and that such further proceedings be had, not inconsistent with the views herein expressed, as to equity may appertain.

Reversed and remanded with directions„

Fitch and Barnes, JJ., concur.


author: Mr. Justice Barnes

text:
    The People of the State of Illinois, Appellee, v. Leon Simon and Louis Asher, on Appeal of Louis Asher, Appellant.
    Gen. No. 31,492.
    1. Criminal procedure — record as not impeachable by a judge’s recollections. The record in a criminal ease containing amplified orders therein may not be varied, impeached or explained by the recollection of judges as to what actually took place in the case.
    2. Bail — collateral attack on order vacating bail bond forfeiture. An order vacating a bail bond forfeiture cannot be collaterally attacked.

      3. Bail — how sureties may he released from a hail hond forfeiture. Under Cahill’s St. ch. 38, K 643, providing for exoneration of sureties on surrender of their principal, unless prevented by an act of God as mentioned in paragraph 651, the sureties must surrender their principal before default on the bond or recognizance to be exonerated or have the forfeiture set aside as provided in paragraph 649.
    4. Bail — discharge of defendant as not exonerating his hail. If bail was not expressly discharged or exoneration sought, the mere fact that the defendant in a criminal ease surrendered himself for trial and was discharged does not operate to exonerate the bail from liability under a previous forfeiture.
    5. Bail — when order setting aside hail hond forfeiture does not release sureties. An order, which has been vacated by an order not void on its face and never reviewed and not reviewable in an action on a bail bond, setting aside a forfeiture of the bond, has no effect on the sureties ’ liability.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. James J. O’Toole, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed June 7, 1927.
    John J. McMahon, for appellant; L. M. Fine, of counsel.
    Robert E. Crowe, State’s Attorney, for appellee; Henry T. Chace, Jr., William B. Walrath and Frank Peska, Assistant State’s Attorneys, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an action of debt brought on a recognizance entered into on April 21, 1925, by defendants, in the sum of $2,500, conditioned for the appearance of Leon Simon to answer a criminal charge brought in the municipal court of Chicago. The case was heard before the court without a jury, resulting in a judgment for $2,500, against Louis Asher, surety on the bond, from which he appeals.

In defense he denies that there was a forfeiture in the case, but alleges that a forfeiture previously entered was vacated on January 7, 1926, and that the cause was then dismissed for want of prosecution, and defendant Simon discharged.

Plaintiff introduced the bond and the “half sheet” showing the proceedings in the criminal case, and defendant introduced the record of the case as shown by the amplified orders. In rebuttal plaintiff called the two judges who had entered such orders, to give their recollection concerning the same. Such evidence was inadmissible to vary, impeach or explain the record. Disregarding the same, as it may be assumed was done by the trial court, the merits of the case rest upon the effect of the orders as recited in their amplified form.

From them it appears that on April 22, 1925, the complaint against Simon came on for hearing and was postponed to the next day on his motion, when the recognizance in question was forfeited in default of his appearance or that of his surety; that a motion of defendant Simon made May 6, to vacate the forfeiture, was continued until June 2, when, neither he nor his surety appearing in court, the recognizance was again forfeited and a scire facias ordered. The record then discloses that on August 12, defendant Simon appeared and moved that the default and forfeiture entered April- 23 be set aside. The motion was continued until September 1, and again on that date to November 18, 1925, when for some reason not disclosed by the record, the court set aside the orders of August 12 and September 1, and Simon and his surety not appearing the recognizance was again declared forfeited and a writ of scire facias again ordered. This suit was begun December 7, 1925. Afterwards, as shown by the record, to wit, on January 7, 1926, before another judge, defendant Simon appeared and moved to vacate the forfeiture of November 18, 1925. The order of that date recites that the motion was sustained, and the cause coming on for trial it was dismissed for want of prosecution, and defendant Simon discharged. The record then discloses that on February 3, 1926, the order of January 7, vacating the bond and dismissing the cause and discharging the defendant, was vacated and set aside.

This action is predicated upon the forfeiture entered April 23,1925. The forfeitures of June 2 and November 18 were entirely superfluous. That of April 23 was still in force. The motion to vacate it was never passed upon, unless by the order of January 7. While there was an intimation in the incompetent testimony of the judge who entered the last two orders that no such order in fact was directed on January 7, and no such proceedings had, yet we must assume that the order speaks the truth. It cannot be attacked collaterally. It was vacated, however, within the period of the court’s jurisdiction of the case, on what grounds does not appear, and could not be inquired into in this proceeding. The real question is what was the legal effect of these last two orders on the liability of the surety under the forfeiture.

The order of January 7 does not purport to have been made on a motion to exonerate or discharge the surety on the bond. Section 11, Div. III of the Criminal Code, Cahill’s St. ch. 38, ft 643, provides that “sureties or any of them may, at any time before default upon the bond or recognizance, surrender the principal in their exoneration.” Construing this section the Supreme Court in Hangsleben v. People, 89 Ill. 164, 170, held that under the statute as it now exists, except where the surrender is prevented by the act of God (as provided for in section 19, Div. III, Cahill’s St. ch. 38, ¶ 651), the sureties must make the surrender before “default upon the bond or recognizance,” or else procure the forfeiture to be set aside as provided for in section 17, Div. III, Cahill’s St. ch, 38, ft 649. It does not appear from the record that exoneration was sought under any one of these sections or that the hail was expressly discharged. Whatever effect the order of January 7 had upon the status of the criminal case the mere fact that the defendant therein apparently surrendered himself for trial and was discharged did not operate to exonerate the bail from liability under a previous forfeiture. If the surety was discharged from the recognizance it was by reason of setting aside the forfeiture of November 18. Whether or not the order of January 7, which sets aside the latter forfeiture, could be construed as setting aside the forfeiture of April 23, need not be considered, for said order of January 7 was vacated by an order not void upon its face that does not appear to have been reviewed and is not subject to review in this proceeding. We must hold, therefore, that the order of January 7 constituted no defense to this action on the recognizance.

Affirmed.

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