text:
    Chicago Title & Trust Company, Appellee, v. Walter B. Prendergast, Appellant.
    Gen. No. 32,845.

      Opinion filed November 7, 1928.
    Rehearing denied November 23, 1928.
    Charles P. R. Macaulay, for appellant.
    Sherman C. Spitzer, Norbert B. Tyrrell and Cassius A. Scranton, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The bill of complaint in the circuit court charges that the Chicago Title and Trust Company is the owner of a principal note designated as Note C and interest notes designated as C9 and CIO, the last two being for interest due on the principal Note C; charges that the notes were made by one Metzen and his wife and are overdue and unpaid and are secured by a certain trust deed to complainant as trustee; charges that the trust deed in question was foreclosed in the superior court of Cook county by one Bussell who was the owner of two principal notes known as A and B and which were secured by the same trust deed as that involved in this litigation; charges that the complainant appeared in the superior court and set up the fact of its ownership of Note C and that the cause was referred to a master in chancery and that, thereupon, the superior court entered a decree by which $1,796.03 was found due to Bussell and $162.30 was found due to the complainant here, Chicago Title and Trust Company; charges that by virtue of said decree the property was ordered sold and that at the sale the defendant and all persons claiming through them be barred from all equity of redemption or claim to the premises ; charges that prior to the filing of the bill in the superior court by the said Bussell, the parties among themselves agreed that the lien of Note C should be superior to the other notes secured by the trust deed; charges further that before the master it was stipulated and found that the Chicago Title and Trust Company had expended the sum of $162.30 for solicitors’ and stenographers’ fees by reason of being made a party to said proceeding; charges that Note C was not being foreclosed under said proceeding and that the master’s report so found and was approved by the chancellor in the superior court; charges, that the property was sold under the decree but that the purchaser Prendergast learned from an examination of the master’s report in the circuit court that it was not the intention of the parties to foreclose the trust deed Note C; charges that at the sale the master announced to the bidders that the premises were being sold subject to the lien of the complainants by reason of their being the owners of Note C and the interest coupons hereinbefore referred to; charges that the sale was reported back to the court and that there it was insisted that the sale should be confirmed because of the fact that Note C was due and in default and that Prendergast should receive his deed so that he might pay off that indebtedness; charges that Prendergast acknowledged complainant’s lien; that the sale was confirmed and a deed issued to Prendergast but that said deed omitted to recite therein that the premises were sold subject to the lien of Note C; that Prendergast, by his conduct, caused the court to believe that he did not intend to take the property free from the lien of the note in question; that he is therefore es-topped to deny that the property purchased by him is subject to the lien of Note C. The bill asks foreclosure of the trust deed by virtue of the default of the payment of Note C and the interest coupons thereon in order to satisfy said note and interest due.

Defendant filed his certain plea in said cause, alleging that the superior court in its decree found the equities with Bussell and that the premises were sold pursuant to said decree and that the Chicago Title and Trust Company, complainant, after the approval of the sale by the superior court, took its share of the proceeds of said sale, viz., the sum of $162.30, and that the report of sale contains nothing to the effect that the premises were sold subject to any lien, but, on the contrary, declares that the property was sold according to the terms of the decree.

The defendant filed his answer in support of said plea, alleging that, from an examination of the records in the cause pending in the superior court, it appeared to him, the defendant, that the foreclosure was for the entire indebtedness secured by the trust deed and that it should be sold free and clear of all'claims and that he was not influenced in purchasing the property by anything stated by the master, but solely by consideration of the fact that the decree stated that it was a foreclosure sale without reservations.

From the facts it appears that the property was approximately of the value of $8,000, and that the amount found due by the decree was $3,120.97, plus cost of the proceedings, which amounted to $373.37. The property was bid in by the defendant Prendergast for the sum of $3,100 and the master recommended that the sale be approved, and, in the order approving the sale in the superior court, it was found that the sale was conducted according to law and in accordance with the terms of said decree and was fairly made and the master was directed to deliver a deed to the premises to said Prendergast and to distribute the proceeds of the sale in accordance with the terms of the decree. The master’s deed, dated January 15,1926, recites that the premises were sold by him pursuant tó the decree of the superior court to Walter B. Prendergast and the master conveyed said premises to said Prendergast in accordance with the decree.

There is evidence in the record to the effect that the defendant, or his counsel on his behalf, examined the proceedings in the superior court before bidding for the property and also made an actual examination of the premises and that, at the sale, defendant and his counsel discussed with the attorney for the complainant, Chicago Title and Trust Company, the lien claimed by complainant and that, the master announced that he was selling the property subject to the complainant’s prior lien.

After the sale had been made by the master to the defendant, there is testimony to the effect that complainant’s solicitor talked with defendant’s solicitor and was told that the defendant would make some arrangement for it, evidently meaning the lien of Note C, and would take a week or so 'to examine into it. Counsel for the complainant in the case in the superior court testified that at the hearing on the motion to confirm the sale, he told the attorney for the defendant Prendergast that the attorney for the Chicago Title and Trust Company had been pressing him since April, when the mortgage matured, and that he had been “stalling” along in order to see what might be done and that Macaulay had said to him, “You can urge that to the court for one of the grounds for having the sale confirmed.” He testified further that he could not be sure whether Macaulay advised him that he intended to pay this Note C, but that Macaulay had made no objection to paying it. Macaulay testified that he only told complainant’s solicitor that he would examine the record.

The theory of complainant’s bill appears to be based upon the proposition that the defendant, by certain equitable principles, is estopped to deny the lien of Note C against said property and that complainant is entitled to foreclose in this proceeding in the circuit court as if Note C had been specifically designated as a lien upon the property and the premises subject thereto.

Counsel for the defendant insist that the decree of the superior court is final and should be given every full intendment as to the matters therein contained and that it directly decrees that the property shall be sold free and clear of any liens and that the master’s deed so conveyed it and that there was nothing in his conduct which would create an estoppel; that he had a right to rely upon the decree and purchase the property in conformity therewith and not in accordance with any statement made at the sale by the master.

From the record in the cause it appears that Prendergast was in no way concerned nor interested in the foreclosure suit in the circuit court and did not appear until he appeared as a purchaser at the sale. On the other hand, the Chicago Title and Trust Company, complainant herein, was a party defendant in the foreclosure suit in the circuit court, and, as such, fully advised as to all the proceedings that took place in said cause. Representing, as it did, the interest involved in the ownership of Note C, it was incumbent upon it to see that its rights were protected and an examination of the final decree in said cause would have disclosed the .fact that, by said decree, any rights it had by reason of the ownership of Note C were forfeited and disposed of. The decree provided that upon the sale the defendant and all persons claiming under it shall be forever barred and foreclosed from any and all equity of redemption and claim in and to said premises and every part thereof. It is unquestioned that if the purchase had been made at the sale by an innocent purchaser and no mention made by the master, as claimed, that it was being sold subject to Note C, that any rights of the complainant herein would have been finally disposed of by the decree and sale. It is insisted, however, that the purchaser, Prendergast, knew of the fact that it had been stipulated before the master that Note 0 was not to be included in the foreclosure proceeding and that, therefore, he was es-topped, by reason of that fact and subsequent statements, from bidding in the property without also assuming the obligation of subjecting the property, under his purchase, to the lien of Note C. This placed upon the purchaser a greater obligation than it did upon the holder of Note C. Complainant had an opportunity to correct the decree in order to protect its rights and also had full opportunity after the sale to have had the master’s report on sale conform to the facts as claimed.

The rule is, the order of confirmation is conclusive as to all matters upon which the court might have been called to pass had the parties chosen to have them brought forward as objections to the confirmation. A judicial sale is dependent upon the decree under which the sale is made and full faith and credit must be given to said decree and to the deed issued pursuant thereto. Every presumption must be indulged in for the purpose of maintaining the integrity of the decree and sale, otherwise, judicial sales would be subject to attack in any collateral proceeding. The Supreme Court of this State in the case of Speck v. Pullman Palace Car Co., 121 Ill. 33, in its opinion says:

(Freeman on Co-tenancy and Partition, sec. 548.) And the rule is, that the order of confirmation is conclusive as to all matters upon which the court might have been called upon to pass, had the parties chosen to have brought them forward as objections to the confirmation. Freeman on Void Judicial Sales, sec. 44. See, also, authorities cited in note three. ’ ’

Upon foreclosure of a trust deed in the nature of a mortgage, the cause of action is merged in the foreclosure and sale and all rights and liabilities growing out of the trust deed are merged in the decree and enforced according to its provisions. Lightcap v. Bradley, 186 Ill. 510.

In the case at bar, Note C was part of the trust-deed being foreclosed and, by the decree, the rights and liabilities arising thereunder were merged in the decree.

It is a well-settled principle of law that one court of equity has no authority to exercise a revisory jurisdiction over the decrees of another court of equity by correcting error or setting aside or reversing a decree. Simmons v. Hefter, 308 Ill. 292.

It is insisted on behalf of complainant that this proceeding is not for the purpose of setting aside or revising the decree of the superior court, and it contends that the decree is proper but, by the conduct of the defendant at the sale, the defendant is estopped to deny the validity of the lien of Note C and the foreclosure brought under this proceeding. By virtue of this position counsel cannot urge fraud on the part of the defendant because, if there was fraud the relief would be a bill of review in the superior court to review the decree; consequently, the sole reliance of complainant is based upon the conduct of the defendant and not upon fraud in the procurement of the deed.

We are cited a number of cases to the effect that a purchaser of real estate who bargains therefor at a price fixed by deducting the amount of the apparent liens and incumbrances from the real value of the land is, thereafter, estopped to deny the validity of such liens and incumbrances. In support of said contention there is cited a number of instances of transfers between individuals. In most of these cases, it appears that the deed of conveyance contained a provision that the sale was subject to such a lien or incumbrance.

The case of Gibson v. Lyon, 115 U. S. 439, cited by counsel for the complainant as an illustration of estoppel arising under a judicial sale, was a case where the deed of conveyance contained a clause to the effect that the sale was subject to a mortgage.

The case of Crooks v. Douglass, 56 Pa. St. 51, was a sale under an execution.

We believe there is a clear line of distinction between the cases cited and the case at bar. In the pending action, the decree itself, while it announced that the master’s report was approved, proceeded to declare the amount due under the foreclosure proceedings and to announce that a sale of the premises would be free and clear of any liens or incumbrances. The master’s report of sale contained nothing to the effect that the purchaser was bidding subject to. a liability under Note 0. The master’s deed, executed in conformity to an order of the superior court, was a conveyance of all right and title in and to the premises without any reservation as to the Note C involved in this action. If the superior court spoke the truth by its decree and its approval of the master’s report of sale and its order that the premises be sold in conformity with the decree, then every presumption should be indulged in to the effect that the court had so spoken the truth and intended to do exactly what the decree provided should be done. The master has no power to sell other than in the manner provided for in the decree and a purchaser has no obligation other than to examine the decree. He has a right to rely upon it as the basis of his purchase. The action of the owners of Note C, in'permitting the decree to be entered without protest and the property to be sold in conformity with that decree, would be sufficient to preclude them in our opinion from later questioning the sale or attempting to claim an estoppel by reason of the action of the defendant in purchasing the same under the circumstances in this case. The purchaser had a right to rely upon the decree and was not bound by the statement of the master, if any, during the course of the sale. It may be true that the actions of the purchaser in this regard may have been of such a character as not to meet with the approval of a court of equity, but, as it is not charged or claimed that he was guilty of fraud, this court is of the opinion that it is not sufficient conduct upon which it can or should overthrow the decree of the superior court after indulging every intendment in favor of the fact that the chancellor of the superior court was fully consonant of the action which it took in entering the decree of sale.

For the reasons stated in this opinion the decree of the trial court is reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.

Holdom, P. J., and Ryner, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    Calumet National Bank, Appellee, v. Friendship Building and Loan Association, Appellant.
    Gen. No. 32,908.

      Opinion filed November 7, 1928.
    Rosenthal, Hamill & Wormser, for appellant; Willard L. King and Irving B. Goldsmith, of counsel.
    Knapp & Campbell, for appellee; Kemper K. Knapp and John H. Hershberger, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The complainant, Calumet National Bank, filed its bill in the circuit court of Cook county, charging that it was duly incorporated under and by virtue of the laws of the United States relating to national banks and was engaged in business in the city of Chicago; further charges that the defendant, Friendship Building and Loan Association, is a corporation organized and existing under and by virtue of the laws of the State of Illinois and engaged in business in the city of Chicago; charges further that on the 19th day of August, 1927, the said defendant commenced suit against said complainant in the circuit court of Cook county and filed its declaration therein, consisting of the common counts and three special counts, charges that the special counts in effect set out that the defendant here, Friendship Building and Loan Association, had deposited with the complainant Calumet National Bank certain moneys as deposits and that the balance due the Friendship Building and Loan Association on said deposits amounted to the sum of $140,276.50. The said special counts further allege that the Friendship Building and Loan Association, defendant herein and plaintiff in the common-law action, drew certain checks or orders on its said account, payable to certain persons named in said cheeks or orders, or upon the order of such persons named therein, and that it was the duty of the complainant Calumet National Bank, defendant in said common-law action, to pay the amounts of said checks only to the persons named therein, but that the said Calumet National Bank wrongfully paid said sums named in said checks to persons other than the said payees.

The bill further charges that the court entered an order in said cause directing said association to file a bill of particulars and that from said bill of particulars it appears that the list of checks bore various dates from August 9, 1920, to November 1, 1926, and aggregated the sum of $121,927.56. The bill further charges that each check was payable to the drawer who was paid by the complainant in the regular course of business and known by the drawer or maker to be fictitious or nonexistent; charges further that the name of the payee in said check was indorsed upon said check and further charges that one Gallistel was secretary of the defendant association and general agent for said association in the transaction of all business and authorized to keep records and collect moneys and to receive notes and securities of the association; that he was also engaged in the real estate business on his own personal account and that the meetings of the directors and stockholders of the association were held in his real estate office and that all the checks bore his name as secretary and that he was authorized to deliver the same and that each of said checks was delivered by the said Gfallistel and that the name of the payee was indorsed on the back thereof; charges further that said Gallistel was a man of extravagant habits and lived in luxury and used the funds of the association for his private purposes and was short in his accounts and was in the habit of indorsing the names of the payees on the back of the checks and that the officers and directors of the association knew of this practice and that many of the checks in question were paid by the complainant after the officers and directors had such knowledge; charges further that the bill of particulars shows that many of said checks were dated more than five years before the commencement of the action by the association in the common-law suit and that many were paid by the bank to the association; charges that many of the persons named as payees received the benefit of said checks or of the amount represented therein either directly or through the release of their obligations to the said association or otherwise; charges that the bank is unable to obtain the precise facts in that regard without an examination of the books and records of the association, which has been refused; charges further that the claim of the said association is so complicated, intricate and involved that a jury in a court of law could not adequately understand the issues, nor arrive at a proper verdict; charges that said checks, with a few exceptions, were drawn to different persons and paid on different days; charges that the defendant association was negligent in not giving information to the bank which it should have had, and that some of the checks are outlawed by reason of the statute of limitations, Cahill’s St. ch. 83; prays that the defendant be enjoined from proceeding with its action in the common-law suit in the circuit court and offers to pay whatever, if any, amount may be found due and asks for such relief as may be decreed in the cause in favor of the complainant.

The demurrer of the defendant association was filed and overruled.

On motion of complainant a temporary injunction issued restraining the defendant association from proceeding with the common-law action. From this order this interlocutory appeal has been perfected.

From the facts before us, as presented by the pleadings, it would appear that one G-allistel, an agent of the defendant, had been guilty of having forged the names of payees to certain checks and collected the amounts which, in turn, were charged by the complainant bank to the account of the defendant. It is insisted that these transactions of said G-allistel extended over a period of time, and that the defendant was precluded from recovery in some instances by reason of the running of the statute of limitations; that the defendant association was guilty of negligence in not having advised the bank of any knowledge it may have had of said transactions and continuing to permit Gtallistel to act in the capacity of its agent. It is further insisted that the entire transaction involved the question of the right to collect the 211 checks and that, in some instances, the payees in said checks did, in fact, receive the money or its equivalent. It is charged in the bill of complaint that the entire transaction constituted one which was intricate and involved and that therefore a court of equity should take jurisdiction.

There is no charge in the bill of fraud nor is there any charge that a fiduciary relationship existed between the parties. The law is well settled that both equity and law have concurrent jurisdiction of cases of account, but, in equity, in order that it may take jurisdiction the account must be complicated and involved. A further rule of law well recognized is that where the jurisdiction of equity and law is concurrent, the court obtaining jurisdiction in the first place shall retain it. The only exception to this is in matters of accounting where a fiduciary relationship existed between the parties, or the bill charges fraud, or discovery is sought, or where, as is claimed in the present case, the account is so intricate, complicated and involved that it would be impossible for a court of law and a jury to pass upon the issues by reason of the complexity of the situation.

In the case at bar there are no mutual accounts between the parties. The complainant does not claim that the defendant owes it anything, but, on the other hand, the only liability, if any, that exists is that of the complainant to the defendant so that, strictly speaking, it is not a matter of account. A court of equity is a great deal more loath to take jurisdiction of a cause where jurisdiction has already been had by a court empowered to hear such a proceeding. For that reason, it becomes necessary to indulge every intendment in favor of the person seeking to have his cause of action heard at law, rather than to divest him of that right.

The rule is well stated in Pomeroy’s Equity Jurisprudence, 3rd Ed., section 179, as follows:

“§179. Cognizance First Taken by a Law Court.— In further limitation upon the power of equity to interfere where the primary rights, interests, or estates are legal, the doctrine is well settled that when the jurisdictions of law and of equity are concurrent, the one which first takes actual cognizance of any particular controversy ordinarily becomes thereby exclusive. If, therefore, the subject-matter or primary right or interest, although legal, is one of a class which may come within the concurrent jurisdiction or equity, and an action at law has already been commenced, a court of equity will not, unless some definite and sufficient ground of equitable interference exists, entertain a suit over the same subject-matter even for the purpose of granting reliefs peculiar to itself, such as cancellation, injunction, and much less to grant the same kind of relief which can be obtained by the judgment at law. The grounds which will ordinarily prevent the application of this doctrine, and will permit the exercise of the equitable jurisdiction in such cases, are the existence of some distinctively equitable feature of the controversy which cannot be determined by a court of law, or some fraudulent or otherwise irregular incidents of the legal proceedings sufficient to warrant their being enjoined, or the necessity of a discovery, either of which grounds would render the legal remedy inadequate. This rule results in part, in the United States, from the provisions of the national and state constitutions securing the right to a jury trial which belongs especially to the machinery of legal actions.”

To the same effect see Church v. Anti-Kalsomine Co., 118 Mich. 219; Vannatta v. Lindley, 198 Ill. 40.

The fact that 211 checks are involved in the proceeding does not necessarily, of itself, constitute an action so complicated and involved that it can not be tried at law. The issues are not involved. The principal question appears to be what checks, if any, bore a forged indorsement of the payee and were they paid by the bank upon said forged indorsement. Is the defendant association precluded' from recovery by reason of the running of the statute of limitations as to certain checks, and is the defendant association estopped from recovery by reason of negligence on its part after having received statements from the bank?

The number of checks involved does not of itself constitute nor create a complicated account. Field v. Brown, 146 Ind. 293; Nashville, C. & St. L. R. Co. v. T. S. Jenkins & Sons, 155 Tenn. 605.

We have examined the cases cited by counsel for complainant and find that the case of Forster, Waterbury & Co. v. Webster Mfg. Co., 108 Ill. App. 41, was an action on a contract between certain parties wherein the price to be paid was predicated upon the cost of raw material, overhead expenses, etc., and asked for a discovery because the evidence was peculiarly within the province and control of the defendant.

The case of Billboard Pub. Co. v. McCarahan, 151 Ill. App. 227, was an action between employer and employee and one for mutual accounts between the parties and for discovery. In this case the bill also charged that the defendant was guilty of fraud and also stated a fiduciary relationship between the parties.

In the case of Mayr v. Nelson Chesman & Co., 195 Ill. App. 587, the bill charged that a fiduciary relationship existed between the parties and that the defendant was guilty of fraud.

The case of Ely v. King-Richardson Co., 265 Ill. 148, was an action between principal and agent and was started in the first instance in equity.

From the facts as disclosed by the pleadings, we fail to see why the issues cannot be fully, completely and fairly disposed of in law and we find no such involved, intricate matters of account as required the intervention of a court of equity.

The defendant association having elected to proceed at law against the defendant, and to have said cause tried by a jury, should be entitled to proceed in the manner and form which it has elected. Some of the matters of defense are peculiarly matters which a jury is particularly well qualified to pass upon. The bill does not set out such facts as entitled it to the intervention of equity and the mere allegation that the claim of the defendant association is complicated and involved does not necessarily make it such but, on the other hand, is a mere conclusion of the pleader. As already stated, the action had already been commenced at law and there is no question involved which would give equity jurisdiction of the action except the bare allegation that the claim is complicated, intricate and involved.

For the reasons stated in this opinion the order of the chancellor of the circuit court granting the temporary injunction will be reversed.

Order reversed.

Holdom, P. J., concurs.

Taylor, J., not participating,


author: Mr. Presiding Justice O’Connor

text:
    The Pennsylvania Company, Appellant, v. Roberts and Schaefer Company, Appellee.
    Gen. No. 32,682.

      Opinion filed November 19, 1928.
    Loesch, Scofield, Loesch & Richards, for appellant.
    Church, Haft, Robertson & Crowe, for appellee; Burt A. Crowe, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover damages in the sum of $35,000 which it claimed it had paid to one of its firemen on account of injuries he had sustained through the negligence of defendant. The jury found the issues in favor of the, defendant, judgment was entered on the verdict and plaintiff appeals.

On a former appeal of the case to this court it was held that the declaration stated a cause of action; that the court erred in sustaining the defendant’s demurrer to it, and the judgment of the trial court was reversed and the cause remanded. 244 Ill. App. 646 (not reported).

The record discloses that the defendant corporation was engaged in building a sanding plant for plaintiff at Conemaugh, Pennsylvania, which was to be used by plaintiff in sanding its locomotives; that about two weeks prior to February 7,1924, defendant had nearly completed the plant and advised plaintiff that the plant might be used for sanding its locomotives, and thereupon plaintiff began using the plant; that the process is to place a locomotive under a spout attached to the plant, lower the spout over the sand dome of the locomotive, pull a rope which opens a sand valve, and the dry sand pours into the dome by force of gravity. There is a counterweight arm which closes the valve •and shuts off the sand. Attached to this arm, and suspended about 24 feet above the ground, is a counterweight weighing about 32 pounds and attached to the arm by means of a set screw. It further appears that at about 9 o’clock on the evening of February 7, 1924, one of plaintiff’s locomotives was being sanded; that the fireman and the locomotive engineer, who were to take the locomotive and a train belonging to plaintiff on a regular trip over its railroad, came to the place for this purpose; that about this time two other employees of plaintiff were on top of the locomotive sanding it, and as the fireman passed beneath the counterweight attached to the arm, it slipped off the arm, fell and struck him on the head, injuring him severely. The fireman afterwards brought suit against the plaintiff to recover damages for the injuries he had sustained, of which fact plaintiff notified defendant but defendant refused to defend the case. Afterwards the plaintiff settled with the fireman by paying him a substantial sum of money, the exact amount not appearing from the record, and it is to recover the amount it thus paid to the fireman that it instituted the instant suit.

There is little if any dispute in the evidence, and from it the following appears: That about two weeks prior to the date the fireman was injured, as above stated, the defendant had completed the sanding plant but that it had not been turned over and accepted by plaintiff, as there were some slight adjustments to be made, until about March 1, 1924; that plaintiff had been using the plant for sanding its locomotives; that on the evening in question an employee of plaintiff endeavored to sand a locomotive, but was unable to open the valve by pulling the rope; that he called another of plaintiff’s employees who was nearby and the latter got on top of the locomotive, pulled the rope hard, and the counterweight slipped off the arm and fell, striking the fireman. It further appears that upon examination of the counterweight it was found that the set screw was screwed in as far as it would go, and there was a mark on the counterweight arm made by the set screw as the weight slipped off the arm.

Testimony was offered on behalf of the defendant showing that when its employees attached the counterweight to the arm the set screw had been screwed in firmly and after this was done the employee struck the counterweight with a hammer to ascertain whether it was firmly attached to the arm. The set screw in the counterweight came in contact with the arm about nine inches from the end of the arm. When the sand valve was closed the end of the arm to which the weight was attached would be slightly below a horizontal position. There was further evidence as to the nature of the fireman’s injuries and the expense incurred for hospital and doctor bills.

Considerable is said in the brief of plaintiff to the effect that the evidence discloses that the sand plant had not been accepted by it until after the accident, but we think this question is not of much importance because it appears from the evidence that the counterweight was insecurely attached to the arm by the defendant; the set screw was too short. In these circumstances the defendant would be liable even if the plant had been turned over to the plaintiff and accepted prior to the time the fireman was injured.

Plaintiff contends that the court erred in giving instructions 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21, at defendant’s request.

By instruction 10 the jury was told “that it is the law that there is no contribution between joint tort feasors, and you are further instructed that if you find from the preponderance or greater weight of the evideuce in this case and under the instructions of the court as given herein that both the plaintiff * * * and the defendant * * * were guilty of negligence which proximately caused the injury to (the fireman), then you should find the defendant not guilty even though you believe that the plaintiff * * * paid money as damages” to the fireman. On the former' appeal of this case we held that from the allegations; of the declaration plaintiff and defendant were not! in pari delicto, and we think the evidence sustained I the allegations of the declaration and there is no evidence to the contrary. The plaintiff and defendant not being in pari delicto, the rule of law which prevents contribution or indemnity between joint tort-feasors does not apply, and the instruction was wrong. Chicago Rys. Co. v. R. F. Conway Co., 219 Ill. App. 220; Lowell v. Boston & L. R. Corp., 23 Pick. (Mass.) 24; Washington Gaslight Co. v. District of Columbia, 161 U. S. 316; Union Stock Yards Co. of Omaha v. Chicago, B. & Q. R. Co., 196 U. S. 217. In the Union Stock Yards Co. case, where it was sought to invoke the rule that there was no right of indemnity between tortfeasors, it was held that the rule applied where both-wrongdoers were guilty of a like neglect, but that the rule did not apply where this was not the fact. A number of authorities on this question are there analyzed and discussed. The court there quotes from the case of Gray v. Boston Gaslight Co., 114 Mass. 149, where it appeared that the gas company fastened a wire to Gray’s chimney without his consent. The weight of the wire pulled the chimney over into the street, injuring a passer-by, who brought an action against the property owner for damages. The property owner gave notice to the gas company, but the latter refused to defend the suit, whereupon the property owner settled the damages with the plaintiff, the injured man, and then brought suit against the gas company to recover the amount he had paid. It is there said (p. 226):

“When two parties, acting together, commit an illegal or wrongful act, the party who is held responsible * * * for the act cannot have indemnity or contribution from the other, because both are equally culpable or particeps criminis, and the damage results. from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such case the parties are not in pari delicto as to each other, though, as to third persons, either may be held liable.”

After this quotation and some further discussion, the Supreme Court of the United States in that case say (p. 227):

“The case then stands in this wise: The railroad company and the terminal company have been guilty of a like neglect of duty in failing to properly inspect the car before putting it in use by those who might be injured thereby. * * * It is not like the case of the one who creates a nuisance in the public streets; or who furnishes a defective dock” (referring to the case of Oceanic Steam Nav. Co., Ltd. v. Compania Transatlantic Espanola, 134 N. Y. 461, which the court had already discussed in the opinion); and continuing: “In all these cases the wrongful act of the one held finally liable created the unsafe or dangerous condition from which the injury resulted. The principal and moving cause, resulting in the injury sustained, was the act of the first wrongdoer, and the other has been held liable to third persons for failing to discover or correct the defect caused by the positive act of the other.”

We think it appears from the evidence in the instant case that the fireman was injured through the faulty manner in which the counterweight was attached to the arm by the defendant. It “created the unsafe or dangerous condition from which the injury resulted.” This was the positive act of the defendant, and the plaintiff was liable to the injured fireman, as we held on the former appeal, because it failed to furnish him a reasonably safe place in which to do his work.

In the New York case (134 N. Y. 461) cited by the United States Supreme Court above, where the plaintiff, who had leased a dock from the city of New York and sublet it to the defendant, and a third person was injured through the negligence of the subtenant, the injured person bringing suit against the plaintiff to recover damages for the injuries he had sustained, notice being given to the subtenant to defend the suit, which he failed and refused to do, and the injured man had judgment against the plaintiff, it was held that plaintiff might maintain an action against the subtenant and recover, because the latter was the one who was primarily liable.

Instruction No. 11 is complained of because it told the jury that if they were unable to say that plaintiff had proved by the greater weight of the evidence that the injuries sustained by the fireman were caused by the negligence of the defendant, as charged in the declaration, then they should find for the defendant. It is contended that the instruction is bad because it did not tell the jury what the material facts plaintiff was required to prove were, but only referred them to the declaration. We do not think this instruction is subject to the objection made. Central Ry. Co. v. Bannister, 195 Ill. 48; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544.

Since there must be a retrial of the case, we think instruction 12 ought not contain the phrase “on the occasion in question,” as it might tend to mislead the jury. This can be readily obviated.

Instructions 13,17 and 20 told the jury in effect that the mere happening of the accident by which the fireman was injured raised no presumption of negligence on the part of the defendant. We think these instructions were erroneous because the evidence was to the contrary. There was no evidence upon which to base them.

It is said that the instructions were wrong because they ignored the fact that the sanding plant had not been accepted by the plaintiff, and, further, that since the plaintiff filed but the general issue, the operation and control of the plant was admitted to be in the defendant and therefore the doctrine of res ipsa loquitur applied. We think neither of these contentions can be sustained.

“The phrase ‘res ipsa loquitur,’ which, literally translated, means that ‘the thing speaks for itself,’ is merely a short way of saying that the circumstances attendant upon an accident are, of themselves, of such a character as to justify a jury in inferring negligence as the cause of that accident.” Words and Phrases Judicially Defined, vol. 7, p. 6137; see also section 15, vol. 1, Thompson on Negligence. In the section cited from Thompson the author says: “The principle is generally expressed in the Latin formula res ipsa loquitur, ‘the thing itself speaks.’ The meaning is thus expressed by Erie, J., in giving his judgment in a noted case: ‘Where the thing is. shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.’ This definition has met with general approval at the hands of judges in subsequent cases, and has become, so to speak, a legal classic.” This rule has many times been announced by our Supreme Court. West Chicago St. R. Co. v. Martin, 154 Ill. 523. But in the instant case there is no room to indulge in the presumption of negligence because the evidence is clear as to how the accident occurred, and where there is specific evidence as to how the accident - occurred, no presumption will be indulged. Since the doctrine of res ipsa loquitur applies only in cases where the negligence is presumed, it is inapt here.

As to the other contention, since all the evidence shows the circumstances under which the locomotive was being sanded, and since this evidence was introduced without objection, the'presumption that the sand plant was under control of the defendant because it had filed only the plea of general issue is not applicable. Hallagan v. Myles, 231 Ill. App. 606.

The complaint made against instruction 14 can be readily obviated on a new trial.

We think instruction 15, by which the jury were told that plaintiff was required to prove its case by preponderance and greater weight of evidence, is not objectionable. Moreover, plaintiff is not in a position to complain because instruction No. 5, given at its request, is substantially the same.

What we have heretofore said in reference to the doctrine of res ipsa loquitur disposes of the objóction made to instruction No. 16.

We think instruction 19 was erroneous. By it the jury were told that if they believed from the evidence the sanding plant had been completed, and while it was being used by plaintiff a condition arose in and about the mechanism of the plant which the defendant could not have reasonably foreseen or anticipated, then they should find the defendant not guilty. If the defendant was guilty of faulty construction, as the evidence tended to show, then'it could not relieve itself from liability for the injuries sustained by the fireman on the ground that it could not have reasonably foreseen or anticipated that such an accident would have occurred.

What we have said in reference to No. 10 is applicable to No. 21, therefore the latter instruction should not have been given.

We think we ought to say that upon a retrial of the case an instruction ought to be given to the jury on the question of damages. They ought not to be left without any instruction on this point, as was the situation on the trial.

The judgment of the circuit court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Matchett and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Roy Miller, by William Miller, Appellant, v. Sears, Roebuck & Company of Illinois, Appellee.
    Gen No. 32,554.

      Opinion filed November 19, 1928.
    Rathje & Connor and Charles C. Spencer, for appellant.
    Adler, Lederer & Kahn, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, a minor, bringing suit to recover damages for personal injuries received by him, upon trial suffered an adverse verdict upon a peremptory instruction by the court. From the judgment entered thereon he appeals.

The declaration alleged, in substance, that in August, 1925, defendant was a retail dealer in merchandise in Chicago, Illinois, and sold its merchandise by mail orders; that it wrongfully, carelessly and negligently advertised for sale a certain toy pistol called a “Ron-son Repeater” for use by children arid wrongfully represented that such toy pistol was harmless and that it complied with the law of every State. Plaintiff avers that said toy pistol was, in fact, dangerous arid likely to set fire, when discharged, to inflammable substances, all of which was known to the defendant; that plaintiff’s mother, induced by the advertisement, purchased said toy pistol from the defendant for the use of plaintiff; that said toy pistol was delivered in a package in which it was stated to be “absolutely harmless.”

Plaintiff further averred that he resided on a farm near Naperville, Illinois, and that certain quantities of gasoline were located on the farm according to an almost universal custom among farmers who kept gasoline for use on such farms; that when the toy pistol was received by plaintiff’s mother by mail, plaintiff used it by shooting the same in the manner in which it was intended to be used and that while he was so shooting it the pistol set fire to certain quantities of gasoline on the farm where plaintiff resided, whereby plaintiff was burned and suffered great pain and was rendered a permanent cripple:

Upon the trial it was shown that defendant’s catalogue was in the home of plaintiff’s parents. The plaintiff at that time was 8 years and 11 months of age. After seeing the defendant’s advertisement of the toy pistol plaintiff’s mother agreed with plaintiff that he might purchase the toy pistol, and to that end plaintiff gave his mother money he had earned by doing chores on the farm. Plaintiff’s mother took the money and gave it to the mail carrier with instructions for him to purchase a money order and forward it to the defendant. Mrs. Miller signed her husband.’s name, “William C. Miller,” to the order; thus the order contained nothing more than the request that defendant ship to William C. Miller a Eonson toy pistol. The pistol was accordingly sent by defendant to William C. Miller and received by plaintiff’s mother, who opened the package and took from it the pistol which she later gave to plaintiff. Plaintiff had never used a toy pistol before, and when he received this one he commenced to shoot it promiscuously in the house and also out of doors. His little sisters were with him all the time, and while he was shooting the pistol its flashes did not set fire to anything and did no harm.

In the afternoon he was sent by his mother to the oil house, in which were kept quantities of gasoline and kerosene used in and about the farm, with a 5-gallon can to draw gasoline from a 50-gallon tank. This oil house was a small wooden house about 7 by 8 feet square. It contained four 50-gallon tanks raised from the floor so the gasoline could be drawn through a faucet into the 5-gallon can. This can had no cover but opened at the top. Plaintiff partially filled the can with gasoline; at the same time he held the toy pistol about five inches from the opening of the spout of the 5-gallon can and shot off the pistol. He shot three or four times while in the oil house. At the last shot he saw that the gun was on fire and then that his clothes were on fire. He ran out of the oil house, threw away the pistol and jumped into a water tank and extinguished the flames. He was badly burned.

The pistol, which is in evidence as an exhibit, is in appearance somewhat"similar to a real automatic gun. It is made of steel, is four and one-half inches long and its shipping weight is about six ounces. It has a trigger but no hammer. It does not shoot ammunition, nor does anything come out of the muzzle when it is discharged except sparks caused by friction of a file-like piece of metal with what is called pyrophoric alloy which is contained within the metal framework. The mechanical operation of the toy pistol is similar to that of a cigar lighter.

A chemist testified that he made experiments with this pyrophoric alloy by rubbing it with a file and by shooting the toy pistol near a small quantity of gasoline. Each time he tried the experiment the gasoline and air mixture ignited. He further testified, in substance, that the explosive condition was produced by a mixture of the gasoline vapors with the surrounding air; that gasoline itself is not inflammable but when its vapor penetrates the air in a certain proportion the mixture becomes inflammable; that in his opinion the sparks from the pistol would ignite this mixture of gasoline vapor and oxygen.

It was in evidence that the only similarity of the toy pistol to a real gun was in its appearance; that the sparks were harmless to any person; that they could be discharged directly upon the hands or face or upon any kind of clothing without any danger or burning. Plaintiff’s mother testified that she saw the plaintiff shooting the pistol around the house at about everything he could see and that the sparks did not do any harm to anything.

Defendant argues that the evidence failed to prove that plaintiff was entitled to maintain his action against it for the reason that there was no contractual relation between them; that the only thing of which the defendant was informed was that it received an order for a toy pistol from William C. Miller and that the pistol was sent by mail to him.

Both parties rely in this court upon the decision in Davidson v. Montgomery Ward & Co., 171 Ill. App. 355, where it was held that a vendor is not liable to third parties who have no contractual relation to him. This case held properly that there were three exceptions to this general rule of liability: (1) Where the act of negligence of the person sought to be held liable is with reference to some article imminently dangerous; (2) where the act of negligence consists in the manufacture or sale of an article defective in construction; and (3) where the act of negligence of the person sought to be held consists of a fraudulent or deceitful statement or representation. Does the evidence show that the instant claim comes within any of these exceptions'?

It cannot be said that a toy pistol which does not discharge a missile is imminently dangerous. The evidence abundantly proves that the pistol in question could be discharged against any person or object with impunity. While it resembled a pistol in appearance, it was in fact simply a toy discharging harmless sparks produced by friction. While at most any innocent article might under some extraordinary circumstances injure a person, yet, this does not render the article itself inherently and imminently dangerous. Articles like poison, gunpowder, a torpedo, a spring gun, a loaded rifle and the like have been held in and of themselves to be dangerous. Loop v. Litchfield, 42 N. Y. 351. It was well said in this case that there is scarcely an object in art and nature from which an injury may not occur under some circumstances, but that is not the test as to whether a thing is inherently and imminently dangerous. Other cases touching this point are Longmeid v. Holliday, 6 Exch. 761, commented upon with approval in Bragdon v. Perkins-Campbell Co., 87 Fed. 109; Cadillac Motor Car Co. v. Johnson, 221 Fed. 801.

Here the unfortunate accident happened because of the unusual circumstances of gasoline exposed in a small closed room, with sufficient lapse of time to cause just the proper combination between the gasoline vapors and the oxygen in the air which would ignite from the slightest cause and which did ignite when the sparks from the pistol were discharged into this inflammable atmosphere.

It is not alleged in the declaration nor is there any proof that the toy pistol was defective in construction. Therefore cases dealing with accidents occurring through defective construction of an article are not in point.

Plaintiff’s declaration did not allege that the defendant fraudulently or deceitfully misrepresented the toy pistol to be harmless when it was in fact dangerous, nor was there any evidence in the record tending to show this to be the fact. Fraud and deceit, like any other fact, must be affirmatively shown, and to make out such a case there must be proof of knowledge and intent to deceive- on the part of the one making the representations, and this knowledge and intent must rest upon the fact- that the article in question is otherwise than as represented. The evidence shows that the toy pistol was harmless when used as an ordinary toy pistol would be used. There are many ways in which the pistol might be used to inflict injury, as by throwing it at some one or striking some one with it, or other unusual uses. The representation that the pistol was harmless referred to the ordinary and usual uses of a toy pistol under reasonable conditions. The danger was in the highly inflammable mixture of the gasoline and air, which might readily become ignited through a variety of causes not connected with the toy pistol.

We are of the opinion that upon the record the instruction of the trial court that the jury should return a verdict of not guilty was proper, and the judgment thereon will not be disturbed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.


text:
    George H. Shank, Appellee, v. Gerrard Wire Tying Machines Company, Inc., Appellant.
    Gen. No. 32,634.

      Opinion filed November 19, 1928.
    Frank Schofield and David K. Tone, for appellant.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellee; Henry S. Moser, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, by an action in assumpsit, sought to recover the amount of certain fire insurance premiums paid by him and which he claims defendant agreed to repay under the provisions of a certain lease wherein plaintiff is landlord and defendant is tenant. Defendant filed amended and supplemental affidavits of merits which were stricken by the trial court and judgment was entered against it for $6,362.97, from which it appeals.

Only one question is involved, namely, When was defendant to pay plaintiff these insurance premiums 1 Plaintiff’s declaration alleged the lease between the parties for a term commencing May 1,1920, and ending April 30,1930, at a specified rental payable in monthly instalments in advance. The clause in controversy is:

“Second, in addition to the rental hereinabove specified, the party of the second part agrees to pay the Fire Insurance premiums on $140,000.00 insurance on the building herein demised during the term of this lease.”

The declaration alleged the payment by plaintiff, the landlord, of certain premiums for fire insurance and claimed that under this provision of the lease defendant was obligated to repay the same to plaintiff. Defendant asserted that it is not now liable to plaintiff for these premiums and will not become indebted for the same until the expiration of the term of the lease, namely, April 30,1930. It will be noted that there are no times specified in the insurance provision nor elsewhere in the lease for the payment of the premiums by the tenant. The question then is whether under a proper construction of this provision plaintiff is entitled to recover these premiums from the tenant as soon as he, the landlord, has bought the insurance, or must he, as defendant claims, wait until the lease has expired.

All of the cases cited by defendant in support of its contention are cases involving rent, where it is held that, where there is no provision in a lease for the time of payment of rent, it is due at the end of the term, no custom or usage to the contrary being shown.

The rule that rent, unless otherwise determined, is payable at the end of the period seems to have had its rise in leases of land for cultivation, the theory being that since rent is a part of the profits of the land, it is not payable until it has been earned by the tenant’s enjoyment of the premises. That reason does not apply to the obligation of a. lessee to insure, which is in the nature of security for the benefit of both landlord and tenant.

The clause under consideration negatives that the agreement to pay fire insurance premiums is an agreement to pay additional rent. The language is, “in addition to the rental hereinabove specified. ’ ’

Nor are the cases cited by plaintiff in point. All of them can be readily distinguished from the instant situation, as has been done in defendant’s reply brief. In the limited time we had to search beyond the briefs, we did not find any reported case precisely in point.

The provision, then, must be construed as a simple agreement by the tenant to pay whatever fire insurance premiums the landlord might pay “during the term of this lease” for a certain specified amount of insurance. It follows that the provision calls for the application of the general rule that, when one party agrees to pay money to another, no time being specified for such payment, there is an agreement to pay on demand or within a reasonable time. That this is the general rule applicable to obligations to pay money cannot reasonably be disputed.

Applying this to the instant question, we hold that the obligation of the tenant to repay the insurance premiums to the landlord matured when the landlord paid the same to the insurance company or companies. As evidently these payments were made some considerable time before suit was brought, the question of reasonable time is not involved.

It follows that the trial court was correct in holding, in effect, that the suit was not prematurely brought and in entering judgment for the plaintiff, which is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.


text:
    Edna M. Pribyl, Appellee, v. Hugo V. Pribyl, Appellant.
    Gen. No. 32,678.

      Opinion filed November 19, 1928.
    David J. Bentall, for appellant.
    Hash & Ahern, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant, who has been divorced from complainant, filed a petition praying for a reduction in the amount of alimony, which petition was denied and from this order of denial defendant appeals.

July 14, 1925, the original decree, of divorce was entered and complainant was awarded $150 a month for the support of herself and her minor child. Subsequently, January 18, 1927, on motion and petition of the defendant, this amount was reduced to monthly payments of $100.. By June, 1927, there had accrued and were unpaid under the decree sums aggregating $8,895.35, which amount had been previously reduced to a judgment. On June 20, 1927, complainant accepted $3,500 in settlement of this debt under an order of the court approving the settlement, which order also provided for an increase in the monthly payments of alimony from $100 to $150, which increase, as appears from the record, was in the nature of a consideration to the complainant for accepting a settlement of her judgment against defendant for approximately $5,000 less than the judgment debt. From this order entered June 20, 1927, defendant did not appeal. The present petition, filed November 28, 1927, prays for a reduction of the amount awarded in this order of June 20th.

It will serve no good purpose to narrate in detail the evidence of the respective parties. Defendant introduced evidence indicating that his income was materially smaller than it was in 1925 when the original decree of divorce was entered; that his medical practice had become less and his health impaired, thus decreasing his earning capacity. On the other hand, matters were adduced which might well cause the chancellor to question the credibility of defendant’s representations as to his inability to pay the alimony awarded.

It is well settled that, where a chancellor hears and sees all of the witnesses, his decree, will not be reversed unless it is clearly apparent that there is palpable error and the evidence manifestly preponderates in favor of the defeated party. Doyle v. Doyle, 268 Ill. 96.

One consideration alone is sufficient to call for an affirmance of the decree, and that is that the evidence discloses no change in the income, earning capacity or health of the defendant since the entry of the order of June 20, 1927, which was not appealed from. The case for defendant has been presented as if the question related to the change of conditions since the entry of the decree in July, 1925. That is not before us. The last order fixing the alimony was made on June 20, 1927, from which the defendant did not appeal. He cannot, a few months thereafter, obtain an order reducing the amount of alimony based upon a comparison of present conditions with conditions which obtained long prior to the last order fixing the amount of alimony. Cole v. Cole, 142 Ill. 19. Defendant testified that for July, August, September and October, 1927, his income totaled $1,316, and for the months of February, March, April and May, 1927, $1,223. Thus for a period of four months immediately preceding the filing of his petition of November 18, 1927, his income exceeded that for the four months immediately preceding the order of June 20, 1927.

Defendant’s testimony regarding his health shows that his physical condition has been the same for a period of two years prior to the hearing on the instant motion and therefore was the same as it was ■ at the time of the entry of the order of June 20th. It is not even argued that the condition of the defendant, either financially or physically, has in any manner changed since the order of June 20, 1927. As was said in Cole v. Cole, 142 Ill. 19, that by the statute authorizing the interposition of the court where the circumstances of the parties have changed since the former order, “It is not intended to continue the right to alter or modify the allowance upon the state of case existing when the decree. was entered, or to review the action of the chancellor therein.”

It was likewise held in Helkelkia v. Sonsinski, 223 Ill. App. 30, that the statute does not contemplate that the court may sit in review of its decree with the right to alter or modify a decree for alimony upon the facts existing at the time of its entry. See also Craig v. Craig, 163 Ill. 176.

When defendant accepted the order of June 20,1927, fixing the alimony, he was barred from any subsequent modification of that order based upon conditions then existing. The order of the chancellor wás proper and is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur..


text:
    Max Levy & Company, Inc., Appellant, v. Frank Kartz, Trading as Illinois Cullet Company, not Inc., Appellee.
    Gen. No. 32,773.
    Opinion filed November 19, 1928.
    Joshua R. H. Potts and Helen T. West, for appellant.
    Ephraim Banning, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainant filed its bill claiming the exclusive right to the use of the word “eullet” in connection with its business and seeking to have the defendant enjoined from using this word in connection with his business. An answer and a replication were filed and upon hearing by the court it was ordered that the bill be dismissed for want of equity. Complainant appeals.

There is little controversy as to the facts. Sometime before January 1, 1895, Max Levy started his jobbing and brokerage business in broken glass and adopted the word “cullet” to describe this commodity. This word was used on his letterheads, on trucks and signs and on labels or shipping tags. December 9, 1913, he registered the word “cullet” as a trade-mark for broken glass in the United States Patent Office under the 10-year proviso of the Federal Trade-Mark Act of February 20, 1905. About January 13, 1917, the ■ complainant was incorporated under the laws of Illinois and Levy transferred to the corporation all his interest in the business, together with the trade-mark and good will. The word “cullet” has been used and advertised in connection with complainant’s business, which has become large. The word was registered with the Secretary of State for Illinois on November 3, 1926.

In 1916 or 1917 one John Hessler started in business in Chicago buying and selling broken glass under the name of Illinois Cullet Company, not Inc. Complainant notified Hessler of its claim to the exclusive use of the word “cullet.” No suit, however, was brought seeking to restrain Hessler from using this name and he continued to do so. In 1924 the defendant Kartz took over the business of Hessler and has continued doing business under the name of Illinois Cullet Company, not Inc., since that time. Defendant uses the name Illinois Cullet Company on his signs, trucks and letterheads. It also appears in the classified telephone directory under the heading “Cullet, Jobbers and Brokers,” as also appears complainant’s name under the same heading.

There is no evidence that the defendant ever used the word “cullet” as a trade-mark or that the word was ever displayed in a similar manner to that employed by the complainant. The issue centers upon the use of the word 1 ‘ cullet. ’ ’ Defendant asserts that ‘1 cullet ’ ’ is a generic word or a word merely descriptive of broken glass, and hence cannot be employed by any one as a trade-mark and that no one can acquire the right to the exclusive use of it.

There was a mass of evidence tending to show that the word “cullet,” meaning broken glass, was and has been in general use in the trade for a considerable length of time. In a list of dictionaries, beginning with Knights Mechanical Dictionary of 1880, the word “cullet” appears and is defined as broken or refuse glass for remelting. In a number of printed publications beginning in 1866 and continuously thereafter the word appears to describe broken glass; also in a number of advertisements in trade periodicals. For instance, in the National Glass Budget published in May, 1897, is an advertisement of another concern using the word “cullet.” This advertisement with the use of this word was reproduced weekly throughout 1897 and a portion of 1898. Again, in the same trade journal of July, 1902, a St. Louis concern advertised itself as dealing in “cullet.” This advertisement was reproduced some 16 times in the years 1902 and 1903 in this trade journal. In this same journal is also a “cullet” advertisement by the complainant. In the Chicago business directory of 1903 defendant’s business was listed under the head of “cullet” as were others in the same line of business. This word to designate this line of business seems to have been in general use continuously over a long period of time. The American Glass Review of January 15, 1927, contains advertisements under the heading of “cullet,” under which is listed a concern of St. Louis and also the complainant. To detail all the places in which the word “cullet” is used as a descriptive term to indicate broken glass or refuse glass for remelting would unduly extend this opinion. Although there was negative testimony of certain witnesses who said they had never heard the word, yet in view of the great amount of documentary evidence adduced, it was clearly established that the word “cullet” is a generic or descriptive word.

As a general proposition, a generic name, or one merely descriptive of an article of trade, cannot be employed as a trade-mark and the exclusive use of it be entitled to legal protection. Canal Co. v. Clark, 13 Wall. (80 U. S.) 311. As was said in Trinidad Asphalt Mfg. Co. v. Standard Paint Co., 163 Fed. 977:

“All must submit to the competition which comes alone from the fair and truthful employment of generic names and terms descriptive of the qualities and characteristics of articles of trade and commerce, unaccompanied by other acts designed to induce confusion and error in the mind of the public.”

Complainant does not claim that the word “cullet” was used deceptively or that the defendant imitated complainant’s use of it. The true name and description of goods may be used and such use will not be enjoined. 38 Cyc. pp. 801, 824; Florence Mfg. Co. v. Dowd, 171 Fed. 122; Hopkins on Trade Marks, sec. 46, p. 94. In Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127, it was held that the use of the words “Elgin,” “butter” and “creamery” could not be enjoined in the absence of any artifice to mislead dealers. In Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598, after a thorough discussion of the principle it'was held that names which were merely descriptive of a class of goods cannot be exclusively appropriated by anyone. See also Brown Chemical Co. v. Meyer, 139 U. S. 540.

There is some suggestion that complainant originated the spelling of the word “cullet” as used by complainant and defendant, but this finds no support whatever in the record. The evidence is conclusive that the proper spelling of the word has always been c-u-l-l-e-t.

Complainant invokes the Federal registration of the word “cullet” as a trade-mark. The 10-year clause of the Trade-Mark Act of February 20, 1905, as amended, provides that one may register any mark used by the applicant “which was in actual and exclusive use as a trade mark of the applicant * * * for ten years next preceding February 20, 1905.” Such registration has been held to be merely prima facie evidence of ownership, but this evidence may be contradicted in court and the apparent right of the registering party shown not to exist. Thomas G. Carroll & Son Co. v. McIlvaine & Baldwin, Inc., 171 Fed. 125; Coca-Cola Co. v. Stevenson, 276 Fed. 1010; Andrew Jergens Co. v. Woodbury, Inc., 273 Fed. 952. The evidence heretofore referred to shows conclusively that complainant did not, exclusive of others, use the word “cullet” to describe its business for 10 years prior to 1905. Under such circumstances the word could not have acquired a secondary meaning and be regarded as meaning the complainant’s commodities only.

Defendant asserts that in any event complainant is not entitled to the relief sought because it has been guilty of laches. We deem the point well taken. It appears that Hessler originated defendant’s business sometime in 1916 or 1917, and complainant bought cullet from him. Hessler did business under the name Illinois Cullet Company. Levy, complainant’s president, testified that they did not interfere with Hessler’s use of the word “cullet” in his business as he had been a good customer and was sick for quite a while ; “anyway, we didn’t bother him. We did not bring suit nor did we bother him in any way, except to serve him with notice on two occasions, I believe.” Hessler thereafter conducted his business as the Illinois Cullet Company until his death in 1924, when this business passed into the hands of the defendant Kartz. It was not until October, 1926, that complainant made any complaint of the use of the word “cullet” in defendant’s business name. We hold that the delay of over 10 years, with knowledge on the part of complainant, without any legal interference, must be held as constituting laches by complainant in asserting any exclusive right to the use of the word. Tending to support our conclusion is the decision in George B. Graff Co. v. H. C. Cook Co., 2 Fed. (2d) 938, where the delay in asserting complainant’s rights was 8 years. In Lane & Bodley Co. v. Locke, 150 U. S. 193, acquiescence for 12 years was -held to be laches. See also Valvoline Oil Co. v. Havoline Oil Co., 211 Fed. 189, and George J. Meyer Mfg. Co. v. Miller Mfg. Co., 24 Fed. (2d) 505, in which cases it was held that by ’unconscionable delay in so doing, the complainant es-topped himself from asserting alleged rights.

Upon either the merits of the case or upon the ground of laches, the decree of the chancellor was right and it is affirmed.

Affirmed.

O’Connor, P, J,, and Matchett, J., concur.


text:
    Stanislaw Chalkowski, Administrator of the Estate of Katarzyna Chalkowski, Deceased, Appellant, v. Michael Szafranski and Stanislawa Szafranski, Appellees.
    Gen. No. 32,792.
    Opinion filed November 19, 1928,
    Stedman, Dingle & Leitch and William C. Hartray, for appellant; Frank E. Dingle, of counsel.
    McMahon & Graber, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal plaintiff seeks the reversal of an adverse judgment entered upon the verdict of a jury in an action wherein plaintiff sought to recover upon a principal note of $3,000 made by the defendants.

The brief for plaintiff does not comply with rule 19 of this court.

We gather from the statement of facts that the defendants about December 15, 1924, signed the note in question and interest notes in the Sherman Park State Bank'with which they were negotiating a loan; that the notes and the accompanying trust deed were sold by the bank to Katarzyna Chalkowski; that she died May 29, 1925; that the notes were found among her effects and an administrator of her estate was duly appointed who brought this action to recover upon the principal note of $3,000. Defendants filed two pleas, one, the general issue, the other, a special plea alleging that the execution of the note was obtained by fraud and circumvention, relying-on section 10 of the Negotiable Instruments Act, Cahill’s St. ch. 98, 11.

Plaintiff argues that this plea is not sufficient in law, in that it failed to allege facts showing that defendants were free from negligence in the execution of the note. The plea was demurrable, but no demurrer was filed and the parties proceeded to trial on the issue of fraud and circumvention presented to the jury by instructions and otherwise. It is a well-recognized practice that after verdict no question as to insufficient pleading may be raised which might properly have been raised by a special demurrer.

The same rule obtains with reference to an insufficient affidavit of merits or where, as here, one of the defendants did not sign the affidavit of merits. Where the plaintiff takes issue on the plea and goes to trial without any affidavit of merits, the filing of an affidavit is considered, waived. Lahiv v. Fleishman, 165 Ill. App. 312; Peerless Pattern Co. v, Silverbloom Dry Goods Co., 211 Ill. App. 194.

The competency of the defendant Michael Szafranski to testify is questioned, as the action is brought by the administrator. By section 2, chapter 51 on evidence, Cahill’s St. ch. 51, If 2, it is provided that no person directly interested shall be allowed to testify therein “of his own motion, or in his own behalf” when any adverse party sues as an administrator of any deceased person, “unless when called as a witness by such adverse party so suing.” Upon the trial, after the plaintiff had proven his appointment as administrator and the possession of the notes, he called Michael Szafranski to identify the signatures and indorsements. This was to meet the objection made by defendants’ counsel that the signatures were not proven. Michael Szafranski was asked only as to these signatures and testified that they were made by himself and his wife. Subsequently he took the stand to testify on his own behalf and over the objection of plaintiff was allowed to testify at length about the details of the transaction connected with the execution of the notes, which it is claimed proved the defense of fraud and circumvention. As there must be another trial because of the incompetency of this testimony, we shall refrain from narrating it or commenting thereon.

It is argued by the defendants that because plaintiff had called Michael Szafranski in the first instance, the door was open to permit him to testify to the entire transaction as part of his defense. In so holding the trial court was in error. Defendant was placed on the stand not for the purpose of testifying to the transaction, but only for the purpose of identifying the signatures and for no other purpose whatever. We do not construe the evidence statute as meaning that, if a witness is called by the adverse party to testify as to one fact, the disqualification to testify of his own motion and in his own behalf is waived or removed, thereby rendering him competent to testify on all the issues involved in the case. When defendant was called by plaintiff he was not asked to testify “in his own behalf.” His testimony identifying the signatures was against his interest.

In Grace v. Grace, 270 Ill. 558, one of the defendant witnesses was called to testify on behalf of the plaintiff as to what property the decedent owned. On cross-examination the adverse party desired to show by this witness the condition of the deceased’s mind. It was held that she was not rendered a competent witness on her own behalf as to all the issues in the case by the mere fact that she had been called by the other party to testify as to one fact.

In Garrus v. Davis, 234 Ill. 326, at the instance of complainants, two defendants were called to testify as to certain signatures. On cross-examination the defendants were permitted to testify generally about the case. There, as here, it was contended that they were competent witnesses for the reason that they were called by the opposite party to testify and they thereby became competent witnesses for all purposes upon any issue involved. The court held to the contrary, saying, among other things:

“In testifying as to the genuineness of these letters the witnesses were not testifying in their own behalf but were testifying against their own interest. * * * If it were the fact * * * that their genuineness could not be proven by any one but the supposed writers, appellants were confronted with the situation that they must either make this proof by the writers of the letters or be denied the benefit of them as testimony in the case. If the rule contended for by appellees is to be followed, these witnesses, when called for the purpose of making that proof by appellants, would have been thereby rendered competent to testify upon all the issues in the case upon their own behalf, even if they had denied that they had written the letters. To so apply the law would seem both unreasonable and unjust.” See also Pennington v. Rowley Bros. Co., 241 Ill. App. 58.

Following what is held in these eases, we hold that Michael Szafranski was an incompetent witness to testify on his own behalf and that the objection to his testimony should have been sustained.

Something is said concerning the sufficiency of the objection, but it was sufficient.

Plaintiff argues earnestly that we enter judgment against defendants in this court on the ground that the facts fail to make out a case of fraud and circumvention. There are two reasons why we do not do this: (1) Fraud and circumvention is generally a question of fact to be determined by the jury; and, (2) there is no competent evidence in the record showing the facts. It is hardly consistent for plaintiff to ask judgment based upon the facts of the transaction testified to by one of the witnesses and at the same time object, and properly, to the competency of the evidence presenting these facts. Whether or not the defendants can produce other evidence tending to support their plea upon another trial, we cannot tell. If, however, there should be no other evidence than that of the defendants themselves as to the transaction, it would be the duty of the trial court to instruct for the plaintiff.

The court improperly permitted defendants to testify that they received no consideration for the notes. The defense of no consideration was not in issue.

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed and remamded.

O’Connor, P. J., and Matchett, J., concur.


text:
    John Stamas, by Gust Stamas, Appellee, v. George H. Waskow, Appellant.
    Gen. No. 32,800.
    Opinion filed November 19, 1928.
    Rehearing denied December 3, 1928,
    Kirkland, Fleming, Green & Martin, for appellant; Weymouth Kirkland, Jay Fred Reeve and William H. Symmes, of counsel.
    Finn & Miller, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

In an action to recover damages for personal injuries received when struck by defendant’s truck, plaintiff had a verdict for $5,000. From the judgment thereon defendant appeals.

The declaration alleged generally the negligent operation of defendant’s truck by one of his servants and the violation of the Motor Vehicles Act, Cahill’s St. ch. 95a, with reference to speed. Defendant filed the general issue.

The accident happened in Chicago shortly after two o’clock in the afternoon of June 25, 1926, as plaintiff was going eastward on the north side of Harrison Street, which runs east and west, across the entrance of an alley which runs north from Harrison. This alley is about opposite the entrance of Morgan Street where it comes from the south into Harrison Street. There is a jog in Morgan Street and the alley continues northward from Harrison Street. There are streetcar tracks on Harrison and immediately west of the alley, fronting south on Harrison, is a grocery store.

Defendant’s truck, going north, was moving into the alley from Harrison Street when the left front fender of the truck hit the plaintiff and the left front wheel passed over his leg. The truck was an autocar of two and a half tons capacity and had a load of from 75 to 80 tubs of butter weighing about 72 pounds each. There were no side curtains. The driver, Fandre, was 35 years old and had been driving a truck for 15 or 20 years. When the accident occurred the truck turned eastward and the right front wheel hit the edge of the curb on the east side of the sidewalk and stopped there. There is some evidence that it struck a post which was about 6 feet in the alley.

It was the theory of the defense that the plaintiff was teasing some chickens which were in a coop in front of the grocery store adjacent to the alley, and the owner coming out of the store chased plaintiff and another boy who was with him; that plaintiff ran quickly eastward directly into the approaching truck.

There, was conflicting testimony as to the speed of the truck as it crossed Harrison Street. One witness for the plaintiff testified that it was going about 15 or 20 miles an hour. The driver of the auto testified that he came north on Morgan Street into Harrison; that he then stopped his truck to allow a street car on Harrison Street to pass to the east; that he then started his truck and crossed the tracks, sounding his horn; that he saw two children playing with the chicken coop on the sidewalk on the northwest corner of the alley in front of the grocery store; that, as he was crossing the street-car tracks he was going about 2 miles, an hour and that after he had crossed the north track he was going from 5 to 7 miles an hour and that this was his speed as he went into the alley across the crosswalk.

A witness, who was disinterested, gave testimony tending to confirm that of the driver. This witness also gave definite testimony that two boys were teasing the chickens in front of the grocery store and the owner of the store came out and chased them away; that one of the boys ran to the west and the other to the east and was struck by defendant’s truck. Defendant’s driver also testified that he saw the man come out of his store and chase the two boys away from the chicken coop; that one of them, the plaintiff, ran to the east and the driver in attempting to avoid him turned to the east and pulled his emergency brake, stopping with his bumper within one foot of the building line. A number of witnesses testified that after the accident the truck was virtually at or near the entrance to the alley.'

It is not without significance that plaintiff, who was 7 years old at the time of the accident and 9 years, old at the time of the trial, did not testify although present in court.

The case was a close one on the facts. There was impressive testimony tending to support defendant’s version that plaintiff, in avoiding the pursuing, storekeeper who was chasing him from the chickens, ran quickly into the pathway of the truck and that defendant’s driver did all that was reasonably possible to avoid the accident.

In a close case it is necessary that the instructions given to the jury should not have a tendency to mislead it. At the request of the plaintiff instruction No. 1 was given to the jury, which incorporated the language of the Motor Vehicles Act (Cahill’s St. ch. 95a, ¶ 23):

“The court instructs the jury that at the time and place in question there was then and there in force a certain statute of the State of Illinois, which is as follows :
“ ‘No person shall drive a motor vehicle or motor bicycle upon any public highway in this State at a speed greater than is reasonable and proper, having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any motor vehicle or motor bicycle operated upon any public highway in this State where the same passes through the closely built up business portions of any incorporated city, town or village exceeds ten (10) miles an hour, such rate of speed shall be prima facie evidence that the person operating such motor vehicle or motor bicycle is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the way, or so as to endanger the life or limb or injure the property of any person.’ ”

The giving of this instruction has been held to be erroneous. Stansfield v. Wood, 231 Ill. App. 586. We are in accord with what is said in this opinion as to the tendency of this instruction to mislead the jury into concluding that, if it believed that the speed of the vehicle exceeds 10 miles an hour, it must find, regardless of the surrounding circumstances, that the plaintiff has proved the charge of operation of the vehicle at a rate of speed greater than is reasonable and proper.

“What speed is improper and dangerous is left for the courts to determine from the evidence in each particular case.” Morrison v. Flowers, 308 Ill. 189.

In Stansfield v. Wood, 231 Ill. App. 586, it is said:

“The rule as to what constitutes prima facie evidence as found in this statute is a rule of law for the guidance of the court and not a rule in the law of evidence to be given to the jury. (Chamberlyne on Evidence 994.) ”

This division of this court has also held the giving of this instruction reversible error in Harris v. Piggly Wiggly Stores, Inc., 236 Ill. App. 392.

Where a case does not turn on the question of speed, or where the facts, regardless of any instruction, show an absolute liability, we would not reverse solely on the ground that this erroneous instruction was given. Such a case seems to have been under consideration in Leideck v. City of Chicago, 248 Ill. App. 545, where the court said that the evidence was so conclusive of negligence that the jury could not have been misled by the instruction, but it has been held in Gossage v. Litchfield Creamery Co., 232 Ill. App. 643, that in a case in which the evidence did not show an absolute liability, the giving of this instruction was reversible error.

We have considered the able brief written by counsel for the plaintiff and the cases cited therein upon this point, but they do not dissuade us from the opinion that in a case like the instant one, which turns almost solely upon the question of the speed of the vehicle, the giving of the instruction in question is reversible error.

For the reasons above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

O’Connor, P. J., and Matchett, J., concur.


text:
    George Metz, Appellant, v. Sophia E. Dionne, Appellee.
    Gen. No. 32,825.
    Opinion filed November 19, 1928.
    Peden, Kahn & Murphy, for appellant; Gerald Ryan, of counsel.

      Irving B. Campbell and John T. Richards, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainant filed his bill to foreclose a purchase-money mortgage for $4,000, made by the defendant. The cause proceeded to a decree and sale with a deficiency of $1,054.46, for which complainant asked a personal judgment against the defendant. The chancellor denied this, holding that by certain acts of the complainant the defendant had been released from personal liability on her note. Complainant appeals to this court for reversal of this order.

May, 1925, complainant was the owner of real estate which he sold to defendant for $6,500, terms $1,500 cash, defendant’s note for $4,000 secured by a second mortgage and subject to a prior mortgage of $1,000. This sale was negotiated by L. J. Carroll, a real estate broker.

Later defendant sold the property for $7,000 to James and Ruth Vail, who took possession. Apparently they fell behind in their payments due defendant, and Carroll arranged with the South Shore State Bank to make a new first mortgage for $3,000 to the Vails, who signed the application, notes and trust deed and paid Carroll a commission. The bank would not pay out the money until an agreement was obtained from complainant that the $4,000 mortgage of defendant held by him should be subordinated to the new $3,000 Vail mortgage held by the bank. To this end a contract was drawn and Carroll gave it to complainant to sign. Complainant afterwards executed this subordination agreement and took it to the Chicago Title & Trust Company where he met Carroll and a representative of the bank, and delivered it. The bank then paid out the money on the $3,000 Vail mortgage, paying the first mortgage of $1,000, and after paying expenses and commissions paid the balance to the defendant on account of the indebtedness from the Vails to her. The matter then stood that the bank, by virtue' of the subordination agreement of the complainant, held a first mortgage for $3,000 made by the Vails, complainant held a second mortgage (the one made by the defendant) for $4,000, and the Vails were in possession of the property. Subsequently they defaulted on the second mortgage and this bill was filed to foreclose it.

The defendant asserted that she was released from personal liability on her note by the act of complainant in subordinating the mortgage made by her to the $3,000 Vail mortgage held by the bank. The master in chancery and the chancellor agreed with this contention and so held.

Complainant urges that Carroll, in securing the mortgage for the Vails and the subordination agreement from complainant, was acting as the agent of and on behalf of the defendant. The evidence does not substantiate this claim. The defendant testified that Hie did not ask Carroll to procure the $3,000 mortgage and she did not know how the Vails arranged to raise the money. The Vails paid Carroll a commission for negotiating the transaction. Complainant was told when he delivered the subordination agreement that “Mrs. Dionne (the defendant) was going to get out.” It is evident that Carroll was acting for the Vails so as to make it possible for them to carry the property.

There is some suggestion that Carroll deceived complainant when he procured his signature to the subordination agreement, but the evidence as to this is not definite. In any event, as Carroll was acting for the Vails and not for the defendant, nothing that he did can be charged against her.

Did the agreement by complainant to subordinate the $4,000 mortgage made by defendant to the new $3,000 mortgage made by the Vails release the defendant from personal liability on her note? No decided cases precisely in point as to the facts have been presented. The case calls, however, for the application of the general principle that, where the holder of a mortgagor’s notes makes a contract with the mortgagor’s grantee, which changes the original obligation of the mortgagor, such an agreement releases the original obligor or mortgagor. That this is the rule seems too well settled to require citation of authority. It has been applied in some cases (the decisions are not in harmony) where the mortgagee makes an extension agreement with the mortgagor’s grantee. See Albee v. Gross, 250 Ill. App. 98, where that question is discussed at length with a large list of decided cases. See also In re Roth, 272 Fed. 516, with a large number of cases. The general rule is there stated that, if the mortgagee sees fit to enter into contractual relations with the grantee of the mortgagor, then the mortgagee “makes himself a party thereto, and must in so contracting and henceforward deal with the parties in view of that changed relationship. This imposes upon him no hardship, and does not against his will alter his original contract. If he by this contract with the grantee * * * alters the terms of the original obligation, no good reason is perceived why the rule applicable as between principal and surety should not be applied to him.”

Applying this general rule to the facts before us, we have little difficulty in arriving at the conclusion that the defendant was released from personal liability upon her notes. She agreed to pay $4,000, subject to a prior incumbrance of only $1,000. By the subordination agreement she became obligated to pay $4,000, subject to a prior incumbrance of $3,000. We know of no rule that would permit a debtor’s obligation to be so adversely altered by the creditor without the debtor’s consent.

The property was sold to complainant at the foreclosure sale for $3,500, subject to the $3,000 mortgage made by the Vails. It is self-evident that property sold at foreclosure of a second mortgage subject to a prior mortgage of $3,000, would not bring as much as at a sale subject to a prior mortgage of $1,000. It is reasonable to conclude that if there had been no subordination, there would have been no deficiency.

Complainant urges that he is entitled to a personal judgment upon the general equities presented — balancing the alleged gains of one party against the losses of the other — but .the right to a personal judgment in foreclosure proceedings does not rest on general equity principles but upon the legal obligation of the maker of the note.

We hold that the chancellor properly denied the application for a personal judgment and the order is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.