author: Mr. Presiding Justice Niehaus

text:
    William F. Newman, Plaintiff in Error, v. New York Life Insurance Company, Defendant in Error.
    Gen. No. 8,748.

      Opinion filed January 12, 1934.
    Lemon & Jordan, Louis 0. Williams and Emerson M. Williams, for plaintiff in error; Louis 0. Williams and Emerson M. Williams, of counsel.
    Scott, MacLeish & Falk and Herrick & Herrick, for defendant in error; Homer H. Cooper, Wendell J. Brown and John F. McCarthy, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

W. F. Newman, the plaintiff in» error,' sued the defendant in error, New York Life Insurance Company, in the circuit court of DeWitt county to recover the sum of $1,000 and interest alleged to he due him according to the terms of an insurance policy issued by the defendant in error company which the insured received from the company May 3, 1929. The policy was made payable to the husband of the insured, who is the plaiiltiff in error herein. The insured died on July 3, 1929; and the defendant in error refused to pay on the ground that the first premium payable on the policy had not been paid during the lifetime of the insured, as required by the provisions of the policy; and because the insured had consulted a physician; and had been treated by him since the medical examination which was made at the time of her application for the insurance.

It is contended by the defendant in error that the policy was invalidated because of the foregoing’ facts.

The plaintiff in error makes the following statement of undisputed facts, in the chronological order of their occurrence, with reference to the issuance of the policy in question:

“On the 15th day of March, 1929, Charles H. Leas, an agent for the Defendant in Error corporation, visited the home of the plaintiff and his then wife, who is now deceased, at their farm home between Kenney and Maroa, Illinois, and solicited them to each make application for a policy of insurance in the Defendant in Error corporation which each of them did.

“On March 30, 1929, the decedent, Sudie M. Newman, was examined by Dr. Blome at his office in Kenney at the request of the agent for the Defendant in Error, Mr. Leas. The doctor, as a part of the examination, made a urinalysis, and found a slight trace of albumin in the urine. The report of this examination was forwarded by Dr. Blome to Mr. Leas, the agent for the insurance company at Decatur, Illinois, and by him forwarded to the Home Office of the Defendant in Error in New York City.

“At the time Mrs. Newman made application for the insurance, at her nearest birthday she was 35 years old. Upon examination of the application by the medical examiner for the defendant corporation at the home office, she was classified as a sub-standard risk, and her age was ‘ rated-up ’ or advanced seven years for the purpose of determining the amount of the premium on the policy which she should pay; that is, she was required to pay the same premium that she would have paid at the age of forty-two years by reason of the fact that under her medical examination she was classified as a sub-normal risk. After the examination of the report of the local medical examiner by the company at the home office the premium on the policy of Mrs. Newman was advanced in the sum of $7.28.

“At the time the applications for the two policies were taken by Mr. Leas, Mr. and Mrs. Newman gave their joint and several notes for the payment of the annual premiums.

“After the policy on the life of Sudie M. Newman had been ‘rated-up’ as to age, making her insurable age forty-two years, Mr. Leas, the agent of the company, had Mr. and Mrs. Newman give him a new note for the joint premiums on both the policies and included therein the additional premium on the policy of Mrs. Newman caused by the ‘rating up’ as to her age. This note was payable to C. H. Leas for $98.35, dated May 1, 1929, payable at the Millikin National Bank, at Decatur, Illinois, with interest at 7% per annum, on or before six months after date.

“At the time of taking the notes, Mr. Leas, acting as agent for the defendant corporation, and in its name, gave a receipt to Sudie M. Newman for the payment of the annual premium in full upon her policy. The policy in question on the life of Mrs. Newman arrived from the home office at the District Office in Decatur on May 1, 1929, and was on that day forwarded to Mrs. Newman by United States mail at Kenney, Illinois. She received the policy on the second or third day of May and it was in her possession until the date of her death, which occurred on July 3, 1929, when she died from an operation to remove a tumor from her uterus.”

Upon the trial of the case, and at the conclusion of all the evidence, on motion of counsel for the defendant in error, the court directed the jury to return a verdict finding the issues in favor of the defendant in error; and the jury returned their verdict in accordance with the court’s instructions. Judgment was thereupon rendered in bar of the plaintiff’s right to recover; and this writ of error is prosecuted to reverse the judgment.

The only question presented for review is the legal propriety of the directing of the verdict for the defendant in error. With reference to this matter, the evidence in the record discloses that Charles H. Leas, who procured the insurance policy in question for.the defendant in error company, was the general agent of the company for the purpose of procuring such insurance; and was acting as such in procuring the insurance in question. Furthermore, that acting as such agent, he collected the first premium by taking in payment therefor a promissory note made by the beneficiary which he had made payable to himself as the agent of the company. It is clearly settled as a matter of law that the payment of the premium made in the manner mentioned was a payment to the defendant in error company; and that the defendant in error company was bound by it; and could not afterwards invalidate or forfeit the policy, even though the note was not paid at maturity; or remained unpaid at the time of the death of the insured. Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284; Mutual Life Ins. Co. of New York v. Allen, 113 Ill. App. 89, 95, aff’d 212 Ill. 134.

Concerning the matter of the consultations and treatments by a physician, the evidence shows that the insured went to Dr. McLean on several occasions, after her application for the insurance had been made, to consult him, because she was suffering from headaches and dizziness; and the doctor prescribed sedative medicine on each occasion; but the evidence also shows, as herein stated, that the insured on account of her physical condition at the time she made her application for the policy, was not accepted by the defendant in error as a regular, standard risk, but was accepted by the defendant in error company as a “ sub-standard risk”; and that the company charged her an additional premium of $7.28 per annum therefor. The headaches, and dizziness from which she suffered at times may have been a natural incident, or resulted from the physical condition for which the defendant in error company received the additional premium; and there is no evidence in the record tending to prove the contrary. In this state of the proofs, the consultations and treatments referred to could not be regarded as a violation of the terms of the policy; but the company must be regarded as having waived its legal right to invalidate the policy on that account. Whether or not the insured’s headaches and dizziness were a natural incident to the substandard condition, or resulted therefrom, was a question of fact for the jury; and not of law for the court to determine. We conclude, therefore, that the court erred in directing the verdict for the defendant in error; and rendering a judgment in bar of the plaintiff in error’s right to recover. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    A. F. Geske, Plaintiff in Error, v. State Bank of Heyworth, Defendant in Error.
    Gen. No. 8,780.
    Opinion filed January 12, 1934.

      H. M. Murray, for plaintiff in error.
    William R. Bach and William J. Bach, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

A. F. Geske, the plaintiff in error, brought this suit in a justice court in McLean county, to recover the sum of $31.45, this being the amount of a check drawn on the defendant in error bank, which check he claimed was wrongfully paid by the bank and the amount thereof deducted from his deposit account in the bank. On appeal from the justice of the peace to the circuit court, the parties waived a trial by jury; and agreed upon the facts involved in this case, which were to be submitted to the court for determination of the issues. The stipulation of the parties concerning the facts is as follows:

11 The defendant is now and has been for several years engaged in the general banking business at Heyworth, McLean County, Illinois, incorporated and organized in conformity with the General Banking Act of the State of Illinois.

‘ ‘ The plaintiff, A. F. Geske, a resident of Heyworth, Illinois, has had a checking account in the defendant’s Bank for a long time prior to and since July 10, 1929, and during that time, plaintiff’s wife was authorized to draw checks on defendant Bank and sign plaintiff’s name to such checks, which she did to the particular check involved in this stipulation, intending to pay with it to the Illinois Public Utility Company, of Hey-worth, Illinois, an installment on a range which plaintiff and wife had purchased of said company, and she left said ‘check’ at the office of said company with one of the employees, but neither the plaintiff nor his wife received credit for such payment and the books of said company do not show the receipt of the ‘check’ or credit to plaintiff or his wife for such payment.

“On July 12th, 1929, defendant Bank balanced plaintiff’s bank book and delivered it to him with other can-celled checks in the usual and customary way.

“On an examination of his account with defendant Bank, as shown by his bank book and cancelled checks, the instrument hereto attached, and hereafter herein referred to as a ‘check’ dated July 10,1929, for thirty-one dollars forty-five cents ($31.45) with plaintiff’s name signed by his wife, drawn upon the defendant Bank and payable to.....:............or order, without endorsement, and in the condition it now is, was among the checks cancelled and marked ‘Paid’ that were delivered to the plaintiff with his pass book. Plaintiff’s bank book showed that defendant Bank had charged the amount of this ‘check’ to Ms account.

“Plaintiff took this ‘check’ to defendant Bank and inquired concerning the charging of the amount to his account, by the officers or employees of defendant Bank, and was informed by them that they could not tell who presented the check or to whom the amount was paid, but that it had been paid by the Bank to whomever had presented it to the Bank for payment. The bank books and cash for the date showed that the Bank had paid the check in full to the person who had presented the same for payment at the Bank, and the instrument itself was cancelled and marked ‘Paid’ on July 11, 1929, by the instrument or machine employed by the defendant Bank at that time in the usual course of business in the Bank, viz.: a stamp machine or check canceller, belonging to the Bank. That such instrument was not out of the Bank’s possession; and was not used by any other person except the employees of the defendant Bank between the time of the execution and delivery of the check in question and its return to plaintiff with Ms pass book on July 12, 1929.”

The record discloses that at the conclusion of the trial the defendant in error submitted three propositions of law to be held by the court, as the law governing the case; and the court held them to be the law as applicable to the facts. The propositions referred to are as follows:

“1. The court holds that a check drawn upon a bank and made payable to................or order is in legal effect payable to bearer.

“2. The court holds that when a check is drawn upon a bank and is made payable to..............or order the bank upon which it is drawn and which pays the check is not legally required to obtain the indorsement of the person to whom the money on the check is paid.

“3. The court holds that when the drawer of a check which was made payable to................or order, delivers the same to a third person, such check is a negotiable instrument payable to any person into whose hands such check may come, and it is not necessary that the blank be filled with the name of the person presenting such check for payment to the drawee bank before the bank can legally pay the same to such person nor that the person receiving the money therein indorse his name thereon.”

The court thereupon rendered judgment against the plaintiff in error and his right to recover. The writ of error herein is prosecuted to reverse the judgment.

The question presented for review by the plaintiff in error is whether or not the facts embodied in the stipulation entitle the plaintiff in error to recover a judgment for the amount of the check referred to. The check in question was in the following form:

“Heyworth, Illinois, July 10, 1929, No.........

Heyworth State Bank 70-988

Pay to..............................or order $31.45

Make this Bank your Bank

Thirty one...........................45/100 Dollars

A. P. Gfeske.”

It is evident from the facts embodied in the stipulation, that Mrs. A. F. Geske, the wife of the plaintiff in error, drew the check upon his account in the defendant in error bank, with full authority from her husband to do so; and that Mrs. Geske delivered the check to the Illinois Utility Company at its office in Heyworth, for payment of an instalment due the company on the price of a range which Mrs. Geske and her husband had purchased from that company"; and that she handed the check to one of the employees of the company in the office of the company as she had repeatedly done before, for the purpose of having the company rubber stamp its name as payee in the check; and give credit to the parties accordingly. It was afterwards ascertained that neither the plaintiff in error nor his wife had received any credit on the books of the Utility Company for the amount of the check. Neither did the books of the Utility Company show that the check had been received by the company. On examination after-wards of the plaintiff in error’s account in the defendant in error’s bank, it was ascertained that the check had been charged to the plaintiff in error, thus reducing the amount in his account by the amount of the check. It was also ascertained from the bank that the check had not been rubber stamped by inserting the name of the Utility Company as payee; and that it had been presented through the bank by some person unknown to the bank, in due course of business; and that payment had been made to this unknown person; although the check did not contain the name of a payee; and after payment, the check was stamped as paid by the bank and canceled.

It is evident from the stipulated facts that the check in question was not payable to bearer and that it was not a negotiable instrument; and as such was paid by the bank in derogation of the provision of section 184 of the Negotiable Instruments Act, Cahill’s St. ch. 98, tf 206, which provides:

“A check is a hill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange payable on demand apply to a check.”

“A negotiable instrument must contain an unconditional acknowledgment of indebtedness or promise to pay, the amount and the person to whom it is to be paid must be certain, and it must appear from the face of the instrument to whom it is payable; and if resort to extrinsic evidence is necessary, the instrument is not negotiable.” (Equitable Trust Co. of New York v. Harger, 258 Ill. 615.)

A question has also been raised concerning the payment of the check referred to by the bank, whether the unknown person to whom the defendant in error bank made payment, can be regarded as a legal holder in due course. This question, however, is well settled by the courts of review of this State, by the following authorities: Cosmopolitan State Bank v. Lake Shore Trust & Savings Bank, 343 Ill. 347; Jackson v. National Bank of McMinnville, 92 Tenn. 154; National City Bank of Chicago v. National Bank of Republic of Chicago, 300 Ill. 103; Crahe v. Mercantile Trust & Savings Bank, 295 Ill. 375; Chicago Savings Bank v. Block, 126 Ill. App. 128,131; People v. Bank of N. America, 75 N. Y. 547; Tolman v. American Nat. Bank, 22 R. I. 462, 52 L. R. A. 877.

In Cosmopolitan State Bank v. Lake Shore Trust & Savings Bank, 343 Ill., supra, our. Supreme Court, quoting with approval the language used by the Supreme Court of Tennessee in Jackson v. National Bank of McMinnville, 92 Tenn. 154, makes the following comment which is pertinent to the question under consideration :

“A bank is obliged by custom to honor checks payable to order and pays them at its peril to any other than the person to whose order they are made payable. It must see that the check is paid to the payee therein named upon his genuine indorsement or it will remain responsible.

“No equitable considerations can be invoked to soften seeming hardships in the enforcement of the laws and rules fixing liability on persons handling commercial paper. These laws are the growth of ages and the result of experience, having their origin in necessity. The inflexibility of these rules may occasionally make them seem severe, but in them is found general security.”

Considering the authorities cited, and applying them to the facts set forth in the stipulation, we reach the conclusion that the trial court was in error in its holding the law to be as presented in the three propositions of law hereinbefore set forth; and in rendering a judgment in conformity therewith, against the right of the plaintiff in error to recover in this case. The judgment is therefore reversed; and it is ordered that the plaintiff in error recover a judgment in this court; and that the same be entered for the sum of $31.45, the amount of the check in controversy.

Judgment of the trial court reversed; and judgment rendered in- this court.

Reversed and judgment here.


text:
    Lawrence Coon, Appellee, v. P. J. McGrath, Appellant.
    Gen. No. 8,809.

      Opinion filed January 12, 1934.
    W. A. Doss, Carl I. Glasgow and C. E. Corbett, for appellant.
    Charles F. Evans and John B. Fitzgerald, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case there was a trial of the right of property in the county court of Macon county, between the appellee, Lawrence Coon, and the appellant herein, P. J. McGrath. At the conclusion of all the evidence, the court instructed the jury to find the issues for the claimant, Lawrence Coon; and the jury found, accordingly, that the claimant, Lawrence Coon, was entitled to recover the property and possession of the same; and a judgment was rendered upon the verdict. This appeal is prosecuted to reverse the judgment.

The appellant makes the following statement concerning the facts involved in the controversy which are all agreed upon by the stipulation of the parties:

“On March 1, 1930, Albert E. Miller, Jennie M. Miller, Taylor Coon and Lucy Coon executed three notes for $500.00 each, payable to George B. Noecker, or order, which notes were secured by a real estate mortgage, and said notes were then at same time delivered by George B. Noecker to the appellant, P. J. McGrath, for good and valuable consideration (money) furnished by McGrath entirely and none by Noecker, the latter’s name merely being used in the transaction for convenience of all parties. The makers were not able to pay the first note when it became due so five new notes were executed by said makers on February 28, 1931, payable to said McGrath for $300.00 each, which notes provided that the said three $500.00 notes mentioned above were to stand as collateral to the five $300.00 notes.

“The five $300.00 notes were signed by Albert E. Miller, Jennie M. Miller, Taylor Coon and Lncy Coon. No new consideration (save extension of time of payment) was given at the time these five $300.00 notes were executed and the three $500.00 notes were not can-celled but remained unpaid, and were held as collateral to the five $300.00 notes.

“On February 4, 1932, a judgment was confessed in the Circuit Court of Macon County, Illinois, on the five $300.00 notes, upon which an execution was issued and served upon Taylor Coon, and on which execution a levy was made, and a trial of right of property was had, in what we will term for convenience, as the first trial.

“On November 13,1930, Taylor Coon was the owner and in possession of the certain personal property consisting of farm implements, horses, etc., involved in this suit. He was also then indebted to Wm. L. Alexander, claimant for certain money due and did on November 13, 1930, make to Wm. L. Alexander, a bill of sale consisting- of all of his said personal property. On the same day and immediately after the above described bill of sale was made to Wm. L. Alexander by Taylor Coon, Wm. L. Alexander sold and transferred by his bill of sale this property to Lawrence Coon, appellee, the son of Taylor Coon. Lawrence Coon was then and has since been living on the same farm of Wm. L. Alexander, with his father, Taylor Coon, where the latter was then, and for many years prior thereto, had been a tenant of Alexander. A levy was made by the Sheriff under the execution mentioned upon. the property referred to, as the property of Taylor Coon. Lawrence Coon served a notice of trial of right of property upon the sheriff of Macon County, who had made said levy. A trial of right of property was had about February 26,1932, in the County Court of Macon County, Illinois, and the jury returned a verdict finding in favor of Lawrence Coon, claimant, from which judgment no appeal was taken and judgment was accordingly entered on said verdict and so stands.

“On November 25, 1932, another judgment was obtained against Albert E. Miller, Jennie M. Miller, Lucy Coon and Taylor Coon in the Circuit Court of Piatt County, Illinois, on the said three $500.00 notes upon which judgment an execution was issued November 25, 1932, directed to the sheriff of Macon County, Illinois. This execution was served upon Taylor Coon and Lucy Coon and a levy was made on practically the same property which was levied upon under the execution on the judgment on the five $300.00 notes which was obtained in the Circuit Court of Macon County, Illinois, and upon which a trial of right of property was had as above described, in what we termed the first trial.

“A notice of trial of right of property was given to the said sheriff of Macon County by said Lawrence Coon under this November 25, 1932 execution and a trial was had in the said Macon County County Court on February 16, 1933.

‘ ‘ There is no dispute as to the facts in the case. The parties have stipulated as to the property levied upon, that a valid levy was made, and the property was owned by Taylor Coon on March 1, 1930.

‘ The Court in the second trial, or case at bar, at the conclusion of all the evidence, on motion by the Attorney for the appellee, instructed the jury to find for the claimant, Lawrence Coon. A motion for a new trial was made and overruled and an appeal was prayed and allowed to the Appellate Court of Illinois for the Third District.”

The only question of law involved here and presented to this court for review is whether or not the prior adjudication between the same parties concerning the same property, and involving the same issues concerning the same property, is res adjudicaba upon the matters involved in the second trial.

It is well settled law that under the facts stipulated, the doctrine of res adjudicata will apply. In Mahannah v. Mahannah, 292 Ill. 133, the Supreme Court defines the rule to be as follows:

“This satisfied the rule of law that when some specific fact has been adjudicated and determined in a former suit, and the- same fact is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not.” (Hanna v. Read, 102 Ill, 596.) See also Tilley v. Bridges, 105 Ill. 336; Attorney General v. Chicago & Evanston R. Co., 112 Ill. 520. To the same effect is Hoffman v. Hoffman, 246 Ill. App. 60, reversed in 330 Ill. 413; Baldwin v. Hanecy, 204 Ill. 281; Rubin v. Kohn, 344 Ill. 166.

In this case the only issue litigated in the first adjudication was as to whether the property levied upon by the sheriff was the property of Taylor Coon against whom the execution had been issued, or the property of Lawrence Coon, the appellee herein; and this was also the only issue in the present case. We are of opinion, therefore, that the court properly directed a verdict, that the property in question was the property of the appellee; and that the judgment entered in conformity with the verdict was’proper. It is therefore affirmed.

Affirmed.


author: Mr. Justice Davis

text:
    Arthur A. Marer and Company, Appellant, v. Estate of M. J. Wolford, Deceased, et al., Appellees.
    Gen. No. 8,769.
    Opinion filed January 12, 1934.
    Hutton & Clark, for appellant.
    J. C. Woodbury, Gunn, Penwell & Lindley and Acton, Acton & Baldwin, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court in favor of appellees on a claim originally filed in the probate court of Vermilion county against the estate of M. J. Wolford, deceased.

M. J. Wolford, a resident of Danville, died testate on May 28,1928, naming the Palmer National Bank, a corporation, Charles F. Shane and Roscoe S. Fairchild as executors of his will.

On June 3, 1929, Arthur A. Marer & Company, a corporation, filed its claim against the estate of said M. J. Wolford, deceased, in the probate court of Vermilion county in the sum of $127,400.

Claimant alleged that on the 15th day of December, 1926, it entered into a certain contract with the Dan-ville Hotel Company, an Illinois corporation, by the terms of which claimant agreed to furnish and equip a certain hotel of the Danville Hotel Company, to wit: The Hotel Wolford, with all the necessary household and hotel equipment, furniture, carpets, etc., a copy of which contract with a list of items and prices thereof is attached and made a part of said claim, and marked Exhibit A.

It further alleged that on the 24th day of November, 1926, the deceased, M. J. Wolford, together with one John H. Harrison, entered into a certain written contract guaranteeing the payment of and for said hotel furniture and equipment, a copy of which contract is attached to said claim and made a part thereof, and marked Exhibit B.

That it had fully and faithfully performed all of the terms of said contract (Exhibit A), by the terms thereof required by it to be performed, aqd that the prices therein set forth were the fair and reasonable charges agreed to in said contract.

That, on or about September 1,1927, it completed the furnishing of said hotel with the furniture and carpets, as specified in said contract, and that the sum of $26,600 was paid thereon, in cash, leaving a balance of $127,400 due and unpaid.

Claimant further alleged that the contract, referred to in paragraph 1 of said claim, being “Exhibit A,” was entered into with, the knowledge and consent of M. J. Wolford, deceased, and that he was, at the time of the execution of said agreement, a director of said Danville Hotel Company, a corporation; that at said time the only assets of said corporation were the lot on which said Hotel Wolford was being erected, worth not more than $40,000, and about $45,000 paid in capital stock; that the said M. J. Wolford, being then and there a director of said corporation, assented to this indebtedness of the claimant in excess of the amount of its capital and, by virtue of the statute in such case made and provided, became personally liable for such excess, and that his estate is liable and obligated to pay such excess.

Claimant further alleged that said Danville Hotel Company, a corporation, was insolvent, was adjudicated a bankrupt on August 19, 1927; that the amount due the claimant herein, $127,400, has not been paid by said hotel company or any person or persons for it; wherefore, claimant alleged that M. J. Wolford became liable to pay claimant the sum of $127,400 with interest thereon at five per cent from the first day of September, 1927.

Said Exhibit A, attached to said claim, was a contract made and entered into on the 15th day of December, 1926, by and between the Danville Hotel Company, a corporation, and known in said contract as the Hotel Company, and Arthur A. Marer & Company, a corporation, known in said contract as the Furniture Company, the terms of which were substantially as follows:

Whereas, the Hotel Company is in the business of constructing, erecting and conducting hotels, and has recently erected in the City of Danville a hotel, known as the Hotel Wolford, which hotel is about completed and ready to be equipped; and whereas, the Furniture Company is in the business of dealing in and with, as wholesalers, jobbers and manufacturers of furniture, household and hotel equipment; and whereas, it is the desire of the Hotel Company to have said Furniture Company furnish and equip said Hotel Wolford with all of the necessary household and hotel equipment, in accordance with the list of furnishings attached hereto, and marked “Exhibit A,” and made a part hereof; and whereas, it is the desire of the Furniture Company to sell to the Hotel Company all of said equipment and furnishings in accordance with the prices therein specified.

Therefore, for and in consideration of $24,000, in hand paid, and the execution and delivery of 18 promissory notes, 17 of which said notes being each for the sum of $2,600, due consecutively every 30 days after December 15, 1926, and one note for $85,800 due 18 months after December 15, 1926, and the execution of a trust deed to secure the payment of said notes.

It was agreed as follows:

First. That the Hotel Company agrees to purchase from the Furniture Company, and the Furniture Company agrees to sell to the Hotel Company and install in said Hotel Wolford all of the furnishings and equipment set forth in said “Exhibit A.”

Second. The Furniture Company agrees to start immediately with the installation of such furniture, carpets and equipments set forth in “Exhibit A,” and to have the installation thereof substantially completed within 30 days, and entirely completed on or about the first day of February, 1927. Said “Exhibit A,” referred to in said contract, contained a list of the furnishings with the prices thereof.

“Exhibit B,” referred to and-made a part of said claim, was an agreement made and entered into on the 24th day of November, 1926, by and between John H. Harrison and M. J. Wolford, of Danville, parties of the first part, and Caldwell & Company, a Tennessee corporation, parties of the second part, and is in part as follows:

Whereas, John H. Harrison is president of the Dan-ville Hotel Company and M. J. Wolford is treasurer and interested in said Danville Hotel Company, which is now erecting and preparing to furnish the Hotel Wolford at Danville; and whereas, the said Danville Hotel Company entered into an agreement with the party of the second part to underwrite and dispose of its 1033 bonds, aggregating $700,000, in total principal amount, dated March 1, 1926, and secured by a mortgage or trust deed upon the hotel property, and a chattel mortgage upon the furnishings; and whereas, said mortgage or trust deed, among other things, provided:

“Said owner further covenants and agrees that it will promptly furnish all moneys necessary in addition to, and prior to the use of the proceeds of this bond issue, to complete and furnish the Hotel Wolford, now being erected upon said property, in accordance with the plans and specifications heretofore made by Hall, Lawrence Bippel & Batcliffe, architects, and that it will have the same promptly completed and furnished, without interruption or delay in the work, and, immediately upon completion, that it will commence, or have commenced, the operation of said hotel.”

And whereas, the said Danville Hotel Company has on hand moneys estimated as sufficient, in addition to the proceeds of the bonds, to complete the hotel building but has not now on hand moneys sufficient to furnish the hotel; and whereas, the said underwriter, under the terms of the underwriting agreement, of date February 13, 1926, which is hereby referred to and made a part hereof as fully as though set forth verbatim herein, is the custodian of the proceeds of said bond issue, and is advised that it should not further make disbursement of said proceeds oh the erection of said hotel, unless, and until the Danville Hotel Company has in hand sufficient moneys to furnish the hotel building or assurance is given that the furnishings will be absolutely installed, free of lien; and whereas, the parties of the first part acquiesce in the correctness of that advice, and are willing to guarantee the installation of said furnishings.

Now, therefore, it is agreed that the parties of the first part do hereby guarantee the installation in the Hotel Wolford on or before December 15, 1926, by Arthur A. Marer & Company, of Chicago, of the furniture, of the prices or value of $115,000, mentioned in contract of date October 9, 1926, and exhibit thereto, which written contract and exhibit are hereby referred to and made a part hereof, agreeing, if the Hotel Company does not promptly pay, to pay for said Hotel Company all of the payments therein required to be made before installation is completed, when said payments are due.

A hearing was had on said claim in the probate court and, on May 28, 1932, judgment was entered against said estate for the sum of $80,599, to be paid in due course of administration, from which judgment an appeal was perfected to the circuit court of Vermilion county.

At the January term, 1933, of the circuit court of Vermilion county and on, to wit, January 16, 1933, a jury was waived and the cause was submitted to the court for trial; and after the court had heard the evidence on behalf of claimant it was discovered that M. J. Wolford was not a director of the company when the contract with appellant was made, and it was granted leave to file an amendment to its claim.

By which amendment to said claim it alleged that a copy of said document, referred to in said contract dated November 24, 1926, as a contract of October 9, 1926, is hereto attached and made a part hereof, and marked “Exhibit C”; that a copy of the exhibit to said contract dated October 9, 1926, mentioning furniture, carpeting and equipment referred to therein, is attached and made a part hereof, and marked “Exhibit D”; that a copy of the deed of trust, mentioned in said contract dated November 24, 1926, is the exhibit hereto attached and made a part hereof, and marked “Exhibit E ”; and that a copy of a chattel mortgage, mentioned in the contract dated November 24, 1926, is hereto attached and made a part hereof, and marked “Exhibit F”; and that a copy of a certain underwriting agreement of date February 13,1926, referred to in said contract dated November 24, 1926, is hereto attached and made a part hereof, and marked ‘ ‘ Exhibit Gr. ’ ’

Claimant further alleged that it did install in and furnish to said Hotel Wolford all of the carpeting, equipment and furniture mentioned in said contract dated November 24, 1926, therein by it required to be installed and furnished with the exception of the carpeting and ozite for, to wit, 11 rooms of said hotel; claimant further averred that, after the execution of said contract dated November 24, 1926, by the mutual acquiescence, agreement and understanding of all the parties thereto and of the Danville Hotel Company, owner of said Hotel Wolford, the quality of said furniture, equipment and carpeting so required to be furnished and installed, and so mentioned and listed, was increased and additions to same in quantity were made, whereby a total agreed purchase price therefor, between claimant and said Danville Hotel Company, was increased from $115,000 to $154,000, including ozite and carpeting to be installed in such certain 11 rooms aforesaid; and that, with the consent, acquiescence and agreement of said Danville Hotel Company and of the parties to said certain contract dated November 24, 1926, said carpeting, equipment and furniture so mentioned in said contract of October 9, 1926, and the exhibit thereto, as so increased in quality, quantity- ahd agreed purchase price, with the exception of such ozite and carpeting for said certain 11 rooms, was, as aforesaid, by claimant so installed and furnished into said hotel, to wit, between December 15, 1926, and March 1, 1927.

Claimant further alleged that said 11 rooms of said hotel were not installed, furnished and equipped with carpeting up to the date that said Danville Hotel Company became a bankrupt, and that upon said last date of bankruptcy, and thereby, that all payments agreed by said Danville Hotel Company to be paid claimant for said furniture and equipment so installed, and so not installed but by claimant offered to be installed, became due and payable.

Claimant further averred that upon said date of bankruptcy, by virtue of a provision of the contract dated November 24,1926, said M. J. Wolford, deceased, became liable to pay claimant all of said payments which had so become due and not been paid to claimant, together with interest thereon at seven per cent.

Claimant further alleged that the changes in quality, quantity and purchase price of said carpeting and furniture, and the execution of said contract dated December 15, 1926, each were well known to, acquiesced in and agreed to by said decedent, M. J. Wolford; and that by said changes in quality, quantity and total purchase price, he, the said M. J. Wolford, did not intend thereby to be relieved from his obligation, and was not relieved from his said obligation to claimant to pay claimant for all of the payments that might be due claimant from said Danville Hotel Company, if said Danville Hotel Company did not pay same, when due, for all of such carpeting, equipment and furniture, and additions, so purchased from claimant and installed and attempted to be installed by claimant into said hotel, as above set forth.

Claimant further averred that on December 11 and December 15, 1926, to induce claimant to enter into, execute and sign the contract with said Danville Hotel Company to sell said Danville Hotel Company and to agree to install and furnish into said hotel the said carpeting, equipment and furniture which claimant did install into said hotel, said M. J. Wolford, before the entering into said contract dated December 15, 1926, did advise and state to claimant and to an attorney of claimant that said contract dated November 24, 1926, had been signed and executed by said M. J. Wolford and said John H. Harrison; that a copy of the wording of the same was not accessible to be seen by claimant and its said attorney because the same was in the State of Tennessee then, and«did advise and state to claimant and to said attorney for claimant that said contract dated November 24, 1926, was a contract which, by its terms and conditions, obligated said decedent and said John H. Harrison to pay claimant for all of the carpeting, furniture and equipment then contemplated to be furnished and installed in said hotel by claimant, without reservation, that such contract of date November 24 had any limitation as to being an obligation to pay certain payments until installation was completed; that claimant and its said attorney did not know that said contract dated November 24, 1926, did contain any conditional terms of guarantee of payment for any limited number of payments; that claimant then and there believed that same was an absolute obligation to pay claimant any and all of the purchase price for said carpeting, equipment and furniture up to the amount of $154,000, should it not be paid by said Danville Hotel Company for the same; that relying upon the truth of such statements of said M. J. Wolford and induced thereby, the claimant did, on December 15, 1926, enter into said contract, bearing said last mentioned date, shown in the exhibit hereto attached, with said Danville Hotel Company, and did sell to said Danville Hotel Company, install and furnish into said hotel, the carpeting, equipment and furniture as above set forth, and did offer to furnish said,.to wit, 11 rooms as above set forth.

Claimant averred that because of said statements and inducements of said M. J. Wolford, upon the reliance of the truth of which claimant did agree to and did sell, furnish and install in said hotel said carpeting, equipment and furniture therein, as aforesaid, and did offer to install said carpeting in said, to wit, 11 rooms aforesaid; that, because of said statements and inducements of said M. J. Wolford, the said M. J. Wolford, in his lifetime, became and was, and the estate of said M. J. Wolford, deceased, at his death became and is now estopped to deny liability to pay claimant the balance, including accrued interest at seven per cent of the amount owing by said Danville Hotel Company to claimant for the purchase from it of such furniture, carpeting and equipment as above set forth.

Claimant further amended said original claim, filed June 3,1929, by striking out the fifth paragraph of said claim, and which said fifth paragraph, so stricken out, is, as follows:

“Claimant further alleges that the contract herein-before referred to, in paragraph 1 hereof, was entered into with the knowledge and consent of M. J. Wolford, deceased, that he was, at the time of the execution of said agreement, a director of said Danville Hotel Company, a corporation; that at said time the only assets of said corporation were the lot, on which said Hotel Wolford was being erected, worth not more than $40,000.00 and about $45,000.00 paid in capital stock; that the said M. J. Wolford, being then and there a director of said corporation, assented to this indebtedness of the claimant in excess of the amount of its capital stock and, by virtue of the statute in such ease made and provided, became personally liable for such excess, and that his estate is liable and obligated to pay such excess.”

The contract of date October 9, 1926, and attached to and made a part of the amended claim and marked “Exhibit C,” and being the contract referred to in “Exhibit B,” attached to the claim as originally filed and made a part thereof, was one that was prepared to be executed by the Danville Hotel Company on the one part and Arthur A. Marer & Company on the other part, but was never in fact executed by the parties.

By the terms of this unexecuted contract the Dan-ville Hotel Company agreed to purchase from Arthur A. Marer & Company certain furnishings and equipment for an agreed price of approximately $115,000, to be paid for as specified in said contract.

After said amendment to said claim was filed, a further hearing was had and further testimony taken, and thereupon the court refused to allow said claim and entered judgment in bar of said action, from which judgment of the circuit court appellant perfected this appeal.

The claim, as originally filed in the probate court, was based solely upon Wolford’s liability as a director of the Danville Hotel Company, and being an action to recover for a violation of the provisions of section 23 of the General Corporation Act then in force, Cahill’s St. 1931, ch. 32, Ü 23, the claim being that the Danville Hotel Company, a corporation, entered into the contract of date December 15, 1926, which provided for the expenditure of $154,000, with the knowledge and consent of M. J. Wolford, deceased, while he was a director of said corporation, and that at said time the only assets of said corporation were the lot on which the Hotel Wolford was being erected, worth no more than $40,000, about $45,000 paid in capital stock, and that M. J. Wolford, being a director of said corporation, assented to said indebtedness of the claimant in excess of the amount of the capital of said corporation and by virtue of the statute he became personally liable for such excess and that his estate is liable and obligated to pay such excess.

Section 23 of the General Corporation Act, in force in 1926 (Session Laws, 1919, p. 321) Cahill’s St. 1931, ch. 32, ¶ 23, provided:

The directors shall jointly and severally be liable for the debts and contracts of the corporation in the following cases:

(1) For assenting to an indebtedness in excess of the amount of the capital of the corporation, to the amount of such excess.

Wolford was not a director of said corporation, therefore no claim creating any legal liability was filed in the probate court, and, even if he had been a director, his liability under said act abated at his death.

Acts such as this have been construed as creating penalties and no action can be sustained for the collection of the penalty after the death of the tortfeasor. Cairo Meal & Cake Co. v. Estate of Brigham, 268 Ill. App. 510.

It has also been held that the sole remedy for enforcing the statutory liability of directors assenting to corporate debts in excess of the capital of the corporation must be in equity and not at law, because only in equity can all the different creditors and others interested be brought before the court. Albert Pick & Co. v. Warshauer, 244 Ill. App. 56; Cairo Meal & Cake Co. v. Estate of Brigham, 268 Ill. App. 510.

Therefore, it appears that no claim was ever filed in the probate court of which that court could take cognizance.

The original claim having been amended in the circuit court by striking out the fifth paragraph thereof, charging that M. J. Wolford was a director of said Danville Hotel Company, a corporation, at the time of the execution of the contract “Exhibit A,” attached to said claim, and that the same was entered into with Ms knowledge and consent and that he assented to this indebtedness of the claimant in excess of the amount of the capital of said corporation (and being the sole cause of action upon which claimant relied in its original claim).

And also by alleging the making of the contract of date December 15, 1926, and by further alleging that, in order to induce the claimant to enter into said contract, said M. J. Wolford advised and stated to claimant and to an attorney, before the execution of said contract, that the contract of date November 24, 1926, had been signed by himself and one John H. Harrison, a copy of the wording of which was not accessible to be seen by claimant because the same was in the State of Tennessee, but that the contract by its terms and conditions obligated said Wolford and Harrison to pay claimant for all of the carpeting, furniture and equipment contemplated to be purchased and installed in said hotel, and that claimant believed that the same was an obligation to pay the purchase price of $154,000 should the Danville Hotel Company not pay for the same.

And by further alleging that, because of said statements of said M. J. Wolford and upon the reliance of the truth of wMch, claimant sold and furnished and installed said carpeting, furniture and equipment and that M. J. Wolford in his lifetime became and was and his estate, at his death, became and is estopped to deny liability to pay the balance due on said claim, raised a new cause of action and sought to recover upon the doctrine of estoppel.

The probate court under our constitution is the court having original jurisdiction of the settlement of estates, and when appeals are taken from it to the circuit court, that court exercises appellate jurisdiction, and, acting as an appellate court, it can entertain no matter not before the probate court. Elder v. Whittemore, 51 Ill. App. 662.

The trial in the circuit court was a trial de novo, and while that court had power to permit appellant to file an amended claim, yet such amended claim could not raise a new cause of action not presented to or passed upon by the probate court, the only court in which, under the statute, claims against decedents must be filed. Sec. 60, Cahill’s St. ch. 3, ¶ 61; Cairo Meal & Cake Co. v. Estate of Brigham, 268 Ill. App. 510.

The circuit court did not have jurisdiction to entertain, on appeal, this new and original action.

The judgment is, therefore, reversed and the cause remanded to the circuit court with directions to dismiss the claim at the cost of appellant.

Reversed and remanded with directions.


text:
    Toledo, Peoria and Western Railroad et al., Appellees, v. City of East Peoria, Appellant.
    Gen. No. 8,782.

      Opinion filed January 12, 1934.
    Harold J. Rust, for appellant; Louis P. Dunkelberg, of counsel.

      Miller, Elliott & Westervelt, for appellees; J. M. Elliott, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

This is an appeal from an interlocutory order of the circuit court of Tazewell county denying a motion to dissolve a temporary injunction.

Appellees filed their bill of complaint on November 4, 1932, in which they alleged, in substance, that they were the owners and entitled to the peaceful, quiet and uninterrupted possession of certain real estate in the southeast quarter and the northeast quarter of section 31, Township 26 North, Range 4, West of the Third Principal Meridian, in Tazewell county, Illinois, and particularly describing in said bill certain lots in Richland Farms Resurvey, a subdivision of Fondulac township in said county (now part of the City of East Peoria), as shown in Plat Book “F,” at page 93, in the recorder’s office of said Tazewell county, and also certain lots in Richland Farms, a subdivision of parts of sections 31 and 32 located in Fondulac township, Tazewell county (now a part of the City of East Peoria), as shown by Plat Book “F,” at page 50, in the recorder’s office of Tazewell county; and are also the owners of the reversionary interest in parts of certain streets embraced within the limits of said Richland Farms Resurvey and Richland Farms, the names of which streets are Webster, Wilson and Edmund, and the location of which is alleged.

That said real estate has been used for farming purposes and has never been occupied or used for business or residential purposes except that a small house located upon lot 419 or lot 420 of Richland Farms has been and is now occupied by a tenant of one of the complainants in said bill.

That on or about the first day of May, 1914, certain of the complainants, together with other owners of parts of said sections 31 and 32, caused said lands to be surveyed and laid out thereon an addition to Fondulac township, known as Richland Farms, a portion of which addition covered the real estate described in said bill of complaint, and caused a plat thereof to be filed for record in the recorder’s office of Tazewell county in Plat Book “F,” at page 50, on or about July 25, 1914; that the real estate covered by said plat was located partly within and partly without the corporate limits of the City of Bast Peoria at the time of the filing of said plat, but no portion of the real estate involved in this proceeding was at that time located within the corporate limits of the City of Bast Peoria.

That on or about the 19th day of January, 1918, the then owners of that portion of Richland Farms located in said section 31 caused a resurvey thereof to be made and filed, and known as Richland Farms Resurvey, which was thereafter filed in the office of the recorder of deeds of Tazewell county, on February 9, 1918, in book “F,” at page 93 thereof, and that no portion of said Richland Farms Resurvey was then within the corporate limits of the City of Bast Peoria; that, at the time of the malting and filing of said plats of Rich-land Farms and Richland Farms Resurvey, the real estate herein involved was not occupied or used for business or residential purposes but was open farm land and has continued to be open farm land and used for farm and agricultural purposes to this date.

That in or about the year 1931 the corporate boundai.es of the City of East Peoria were extended and certain territory in said section 31 was annexed to said city, but that said city has not at any time accepted or approved said plats or surveys of Richland Farms or Richland Farms Resurvey in so far as they include or embrace the real estate involved and that said city has never at any time accepted the offer to dedicate the strips of land marked streets upon said plats; that at the time of the making of said surveys and plats said real estate herein involved was not within the corporate limits of the City of East Peoria (then Village of East Peoria), or any other municipality; that the same was farm land located in Fondulac township, Tazewell county, and that neither the township authorities nor the county board of Tazewell county expended any public moneys upon the strips of land marked streets, and no work or improvement of any kind was done upon said strips of land by the public authorities and that said strips were not at any time used by the public as passageways over said real estate or any’part thereof; that said city after annexing said territory in 1931 did not expend for the purpose of improving or using said strips of land any public moneys, and no work or improvement of any kind was done upon said strips of land and that they have not at any time been used as public streets for public passage on said real estate to this date.

It is further alleged that being the owners of the premises herein involved on the 14th day of October, 1932, and pursuant to sections 6 and 7 of the law in relation to “Plats,” Cahill’s St. ch. 109, ¶¶ 6, 7, they executed and acknowledged and filed and recorded their deed of vacation, a copy of which is attached to and made a part of the bill of complaint; that at the time of the execution of said deed of vacation they were, continuously since then and now are, the sole owners of real estate described in said deed of vacation; that by the execution and filing* of said deed of vacation, that portion of the plats and survey described therein became vacated, and that the recorder of deeds of said county so marked said plats, as required by the statute.

It is further alleged that upon the execution and recording of said deed of vacation that the complainant, Toledo, Peoria & Western Railroad, caused a fence to be constructed across the easterly end of the strip marked in said plats so vacated as “Edmund Street” and extended said fence northerly and southerly from said strip marked street for the purpose of enclosing and shutting off from property east thereof the portion of the strip marked “Edmund Street” so vacated; that at the time of the erection of said fence, and prior thereto, no public funds had been expended by any public authorities and no work or improvement of any kind had been done by public authorities upon said strip of ground marked “Edmund Street” and no public moneys had been expended or work done of any kind by public authorities upon the strips of land marked “Webster Street” and “Wilson Street” and that prior to the execution and filing of said deed of vacation the strips of land marked “Webster Street,” “Wilson Street” and “Edmund Street” on said plats within the territory involved in this suit had not been accepted, marked, improved or used as public streets or highways, and had not been accepted by the township of Fondulac, the county of Tazewell, or the City of East Peoria, as public streets or highways.

It is further alleged that by virtue of the execution and filing of said deed of vacation, the title to the reversionary interest in said strips so marked streets within the area involved became merged with the ownership of the fee to the adjoining lots, and that complainants are now the sole owners of all the real estate including the strips marked “Streets” within the boundaries of those portions of the plats of Richland Farms and Richland Farms Resurvey, as outlined in red on said plats attached to and made a part of the deed of vacation and as such owners are entitled to the exclusive, peaceful, quiet and uninterrupted possession thereof from the defendant, City of East Peoria, and all others.

It is further alleged that on or about the 27th day of October, 1932, upon information and belief, that said city by its officers and agents, without right and authority and in violation of the rights of complainants as owners of said real estate and the right to exclusive, quiet, peaceable and uninterrupted possession thereof, unlawfully entered upon said real estate and destroyed and removed the fence and without right partially graded said strips of land marked “Wilson Street” and “Edmund Street” and unlawfully pretended to stake out the strip of land marked “Webster Street” and placed willow poles along the sides of said strip marked “Edmund Street,” and that in committing said trespass injured the growing crops upon said strips to the damage and injury of complainants.

It is further alleged that, for the purpose of protecting their title and interest in said real estate, complainant, Toledo, Peoria & Western Railroad, reconstructed and rebuilt the fence along the easterly boundary of the land involved, and that upon information and belief, which they believe to be true, and therefore state the fact to be, that the City of East Peoria, through its officers, agents, employees and servants, will, unless restrained by the order of this court, again destroy and remove such fence without right or authority, and otherwise interfere with the rights of complainants as owners of said real estate, and that said city, unless restrained, will continue to trespass upon said real estate and destroy and remove the fences and other monuments and markers showing the boundary thereof and continue to attempt to grade and otherwise change said strips of land marked as streets upon said plats, and interfere with the quiet, peaceful, exclusive and uninterrupted possession of said real estate by complainants and will refuse to recognize the title and ownership of complainants in said strips of land and the right of peaceful possession thereof.

It is further alleged that complainants have no adequate remedy at law and that irreparable injury will result to them if an injunction is not granted as prayed for in bill; that continued trespasses by the defendant through its officers, agents, employees and servants will occur, as complainants believe, and that their rights and interests as owners of said real estate, and to the quiet, peaceful, exclusive and uninterrupted possession thereof will be destroyed and the value of the same depreciated by reason of the unlawful acts of said defendant.

Complainants ask that upon a hearing the defendant, City of East Peoria, its officers, agents, employees, servants and attorneys, and all persons claiming to act by, for or under them, may be enjoined from trespassing upon the real estate of complainants described in the said deed of vacation, or any part thereof, and from destroying- or removing or attempting to destroy or remove the fence constructed by one of the complainants, etc., and said bill of complaint also contained a prayer for a temporary injunction pending a hearing upon said bill of complaint.

Attached to which bill of complaint was a copy of said deed of vacation, marked Exhibit “A,” and made a part thereof.

The court granted a temporary injunction and appellant, without having filed an answer, made a motion to dissolve the same, and as grounds for said motion alleged:

First: There is no equity on the face of the bill.

Second: Said bill of complaint fails to set forth that the portion of the plat attempted to be vacated by complainants was at any time presented to the city council of the City of East Peoria, Illinois, for its approval or rejection, in manner as provided by the statute.

Third: Said bill of complaint fails to set forth that the complainants are the owners of all the lots located in the subdivision known as “Richland Farms” and “Richland Farms Resurvey.”

Fourth: Other reasons.

Afterwards said defendant filed a motion for a rule requiring complainants to file in said cause, prior to the hearing upon the motion to dissolve the temporary injunction, copies of said plats of Richland Farms and Richland Farms Resurvey, which motion was denied by the court. Appellees thereupon consented to defendant filing said plats in said cause without prejudice to the rights of complainants under said bill, and that the court might consider said plats on hearing upon motion to dissolve the temporary injunction issued in this cause.

Upon a hearing on the motion of defendant to dissolve the temporary injunction the court overruled and denied said motion.

The sole reason urged for a dissolution of the temporary injunction is that there is no equity on the face of the bill, appellant having waived point four of its motion by not stating any reasons in support thereof in its brief and argument.

Appellant in its argument states its position thus:

“The question upon which the decision of this Court is sought is whether the present owners (and who in this case are not all of the original proprietors and dedicators) of lots or territory in a portion of a subdivision created by statutory plat, and lying within the corporate limits of a city, can vacate the streets or highways adjoining and abutting upon their respective lots or territory by making and recording a deed of vacation of that portion of the plat or subdivision representing the lots or territory owned by them, without presenting said deed of vacation to the city council for its approval or rejection as provided for in Sections 6 and 7 of the ‘Plats’ Act since the amendment to said Section 6 in 1917.”

When, as in this case, a motion is made to dissolve a temporary injunction for want of equity on the face of the bill, without answer, the motion operates as a demurrer to the bill and raises the question of the sufficiency of the bill on its face, and all matters of fact well pleaded are admitted. Smith v. Kochersperger, 173 Ill. 201; Wortham v. Quait, 215 Ill. App. 444; Spies v. Byers, 287 Ill. 627; O’Donnell v. Gearing, 291 Ill. 278.

The only question to be determined is as to whether or not the bill on its face contains a sufficient statement of ultimate facts to entitle appellees to a temporary injunction against appellant, assuming the facts stated in the bill to be true.

When a plat is made in strict compliance with the provisions of the statute, then the title to the streets dedicated and accepted by the city becomes vested in the city, but the statute is in derogation of the common law, and a plat which does not strictly comply with the provisions of the statute is not a statutory plat. City of Chicago v. Drexel, 141 Ill. 89.

Upon consideration of the bill we can find no allegations of fact from which either of the plats in question can be held to be statutory. At the time of the making and filing of the plats for record no part of the lands involved in this proceeding was within the corporate limits of the City of East Peoria, and there is no allegation in the bill that the plats, or either of them, were made for the purpose of laying out a town or making any addition to any city, village or town, and nothing upon the face of the bill shows a strict compliance with the provisions of the statute.

However, it is contended by appellant that by the execution and filing of the deed of vacation, in which it is recited that the same was made pursuant to sections 6 and 7 of the statute in relation to “Plats,” Cahill’s St. ch. 109, ¶¶ 6, 7, appellees recognized and treated both plats as statutory and they cannot now deny that they were such, and cite the cases of Corbin v. Baltimore & O. C. Terminal R. Co., 285 Ill. 439, and Clark v. McCormick, 174 Ill. 164. We do not think these cases should receive such a broad construction.

In the Corbin case, supra, the court held:

‘ ‘ The plat conformed in every way to the statute in the particulars just named, and is, therefore, a statutory plat. . . . By its act of executing and acknowledging the vacation piece appellee recognized and treated the plat and addition as a statutory plat. . . . The statutory provision for vacating a dedication is not applicable to a common law dedication.”

In the Clark case, supra, the court held that the dedication was not statutory but was good as a common law dedication, and that the legal title to the strips set apart for streets remained in the original owner. It was also held in this case that the statutory provision for vacating’ a dedication is not applicable to a common law dedication.

In our opinion the court did not intend to lay down the rule that if a property owner attempts to subdivide it into lots and blocks and make a statutory dedication of the streets and fails to do so under the provisions of the statute, the same will become a statutory dedication because the owner himself may have treated it as such in attempting to vacate a plat thereof or simply because the owner himself intended it to be a statutory plat.

In a statutory plat the fee to the streets and public grounds passes to the municipality, while in a common law dedication the fee remains in the proprietor of the plat and passes to the purchasers of the abutting lots, subject to the easement of the public in the streets. Titles to lands cannot be determined by the will or intention of the dedicators, nor can a plat be declared statutory, if in fact it is simply one at common law.

Even though the deed of vacation executed by appellees should be held inapplicable to a common law dedication, yet it could not have the force and effect of making the plats mentioned therein statutory plats if they were in fact common law dedications. In our opinion the cases cited do not sustain the contention of appellant.

From the allegations of the bill it cannot be held that the plats are statutory, and in order to determine whether or not the bill on its face contains such a sufficient statement of ultimate facts as warranted the court in granting the temporary injunction we must not only be guided by the rules governing a common law dedication but also by the allegations contained in the bill with reference to the ownership of the property, the trespasses thereon by appellant, the right of appellees under the law to the quiet and peaceful possession thereof and the charges of other threatened trespasses by appellant.

The making and recording of a plat, which is not in strict compliance with the statute, is evidence of an intent to dedicate, which, like every other dedication to be made complete and carried into effect so as to create public rights, must be accepted and acted upon by the public. Such a plat has no effect as a conveyance, and an offer to dedicate thereby may be revoked by the owner or his grantee at any time before acceptance by the public, and what constitutes a revocation of an offer to dedicate depends very largely upon the circumstances and is usually a question of fact. Nimpfer v. Village of Fox Lake, 334 Ill. 46.

From the bill it appears that appellees own the lands in question and the same, including the strips of land marked streets, have at all times been used for farming purposes and no portion thereof was within the City of East Peoria at the time of the platting of the same; that the city extended its corporate limits in the year 1931 and annexed said lands, but that said city has not affirmed said plats and never at any time accepted the offer to dedicate said strips of land marked streets; that at the time of said surveys and plattings the same were farm lands located in the township of Fondulac, county of Tazewell, and that said strips of land have not been accepted, marked, improved or used as streets or highways by said county of Tazewell, township of Fondulac or City of East Peoria; that neither said county of Tazewell, township of Fondulac or City of East Peoria have expended any public moneys upon said strips of land marked streets, and no work or any improvement of any kind has been done thereon by the public authorities of said county, township or city and that they were not at any time used by the public as streets or highways or passageways; that a fence was constructed across the easterly sides of said lands and on or about October 27, 1932, said City of East Peoria, by its officers and agents and without right and authority, unlawfully entered upon said real estate and destroyed and removed said fence and partially graded said strips of land marked “Wilson Street” and “Edmund Street” and unlawfully pretended to stake out the strip of land marked “Webster Street” and placed willow poles along the sides of said strip marked “Edmund Street” and injured the growing crops upon said strips; that complainants reconstructed and rebuilt said fence and that upon information and belief state the fact to be, that said City of East Peoria, through its officers, agents and employees, will again destroy and remove said fence without right and authority and continue to trespass upon said real estate.

Appellees not only executed the vacation piece and filed the same for record, thereby giving the public notice of their intention to vacate, but also fenced off the property on the easterly side thereof and thus withdrew the offers made by the proprietors of the plats to dedicate the streets to the use of the public and thereby declaring their intention to devote said strips to their own private use.

If for no other reason, the fact that appellees were in possession of the property claiming to be the owners thereof and were using the land for agricultural purposes and had crops growing thereon and that appellant tore down the fence, went upon the property, graded some of it, and committed other trespasses and that it is alleged upon information and belief that unless restrained by order of court appellant will continue to trespass upon said property and destroy and remove the fences and other monuments and markers showing the boundaries thereof and will continue to attempt to grade and otherwise change said strips of land marked on said plat as “streets” and that irreparable injury will result therefrom, would induce a court of equity to restrain such trespasses. O’Donnell v. Gearing, 291 Ill. 278; Drainage Com’rs of Hammond Mut. Drain. Dist. v. Drainage Com’rs of Dist. No. 9 of Town of Unity, 246 Ill. 526; McIntyre v. McIntyre, 287 Ill. 544; Peters v. Harris, 245 Ill. 419. The right to the remedy is not limited to those who may actually have a clear title to the lands, but may be availed of by one who is in actual possession thereof under claim of title (32 C. J., p. 130, sec. 172), and he does not have to sit by, see his property invaded and destroyed, and be compelled to seek damages at law. The City of East Peoria had no more right to tear down the fence, invade the property and destroy the crops thereon, under the facts as they appear in the bill, than had any other person.

The order of the circuit court overruling the motion to dissolve the temporary injunction is affirmed.

Order of circuit court affirmed.


author: Mb. Justice Davis

text:
    In re Estate of Kate Smith, Deceased, Estate of Ellen Henrietta Smith, Deceased. Pauline Hunt et al., Appellants, v. Anne Baker, Executrix of the Will of Ellen Henrietta Smith, Deceased, et al., Appellees.
    Gen. No. 8,808.
    Opinion filed January 12, 1934.
    E. R. Phelps and Jesse Peebles, for appellants.
    James H. Murphy, for appellees.
   Mb. Justice Davis

delivered the opinion of the court.

Kate E. Smith in her lifetime executed her will which contained the following clause:

“First, I give, devise and bequeath to my brothers, Haney V. Smith, Lemuel B. Smith and Edward L. Smith, and my sister, Hannah M. Boswell, share and share alike, to have and to hold to my said brothers and sister, their heirs and assigns forever, my property on Washington Ave., St. Louis, Mo., to be disposed of as they can agree among themselves. My brother, Haney V. Smith, must make a will as soon as he receives his share leaving his share to his wife during her lifetime or marriage, then it is to go to the five daughters of my sister, Hannah M. Boswell: Nellie, Bessie, Birdie, Hattie and Myrtle Boswell.”

Kate E. Smith died in 1903, but before she died she sold the real estate mentioned in the above clause of her will and the proceeds of the sale became a part of her estate upon her death and were distributed by her executors between her four brothers and her sister, the brother, Haney V. Smith, receiving a total of $8,611.15 from her estate.

Haney V. Smith made his will on December 27,1905, and devised and bequeathed all his real and personal property to his wife, Ellen Henrietta Smith, to have and to hold, during the term of her natural life, with the right to use and sell any or all of it as she might see fit, and if at the time of her death there should remain any part of his estate which she had not used or disposed of, that the part so remaining shall be divided as follows: to his brother, Edward L. Smith, $2,000; to his brother, Lemuel B. Smith, $1,000; to the First Methodist Church of Bunker Hill, $1,000; all the remainder to be divided equally between the five daughters of his sister, Hannah.

On March 14, 1908, he made a codicil making some changes in the will, which are unnecessary to mention as they are immaterial to the issue here involved.

On June 4, 1928, Ellen Henrietta Smith, the widow of Haney V. Smith, made her will wherein she disposed of certain funds received by her from the sale of a cottage which she personally owned in Piasa Chautauqua. All of this property was other and separate from that received by her under the terms of the will of her husband. Her will made no disposition of any property which she acquired under her husband’s will. Sometime after the execution of her above mentioned will, she was declared distracted and a conservator was appointed for her estate. She died on the 8th day of September, 1931.

Upon a hearing upon the final report of the conservator, in the county court, the four daughters of Hannah M. Boswell, deceased, and two of her granddaughters who represented a deceased daughter filed their petition in the county court for an order on the conservator to distribute the funds in his hands, derived from the estate of the husband of Ellen Henrietta Smith, to them on the ground that they were held in. trust for them under the will of Kate E. Smith. The county court denied the prayer of the petition, and on appeal to the circuit court the prayer of the petition was again denied.

The question involved is what effect did the conveyance of the property in St. Louis, by Kate E. Smith, have in regard to the devise thereof in her will.

This same point was before us in Sims. v. Hays, 212 Ill. App. 23, wherein we held that where a testator devises certain lands in his will or directs them to be sold and the proceeds divided among certain beneficiaries and before his death conveys the property, such conveyance is a revocation of the will as to such land, and the devisee of the land has no interest in the fund produced by such sale, even though it can be traced and identified.

In support of this doctrine we cited the leading case on this subject, Phillippe v. Clevenger, 239 Ill. 117. The court in the Phillippe case made a very able and exhaustive discussion of the question here presented, and after a review of many authorities held in substance the law to be in this State that notwithstanding section 17 of the Statute of Wills, Cahill’s St. ch. 148, ¶ 19, provides the method by which wills may be revoked, yet it does not abrogate the common law rule that a will, or a part thereof, may be revoked by implication, by acts of the testator inconsistent therewith, and a will devising land is revoked, by implication, by a conveyance of land during t'he testator’s lifetime. The rule thus announced in the Phillippe case has been followed and affirmed in several cases, among which are the following: Yott v. Yott, 265 Ill. 364; Meily v. Knox, 269 Ill. 463.

It is, therefore, apparent that the conveyance of the St. Louis property by Kate E. Smith in her lifetime revoked the provision of the will mentioned and that the petitioners took nothing thereunder. The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Fulton

text:
    William C. Bates, Appellant, v. The Drainage Commissioners of Lake Fork Special Drainage District in the County of Logan, Appellee.
    Gen. No. 8,781.
    Opinion filed January 12, 1934.
    Harold F. Trapp, for appellant.
    Covey & Woods, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Appellant filed an action in case against appellee. The declaration consisting of a single count claimed damages for the negligent burning and destroying of appellant’s property in the maintenance of the drainage district ditch. Appellee filed a plea of not guilty and a trial was had before a jury. At the close of appellant’s proof the court, on motion of appellee, directed a verdict in favor of the drainage district, which was returned by the jury. Appellant’s motion for a new trial was overruled and judgment was entered against him in bar of the action and for costs. The facts are not seriously in dispute and this appeal involves only a question of law.

The appellee drainage district was organized under the Farm Drainage Act, Cahill’s St. ch. 42, ¶ 120 et seq., as a special drainage district and constructed its drainage ditch on right of way 99 feet in width across 80 acres of land belonging to appellant and thereafter maintained the said improvement. Appellant had about 18 acres of valuable hardwood timber on one side of the drainage .ditch and five acres of clover on the other side adjoining the right of way belonging to the district. On November 19, 1930, one Sherman Peters, an employee of the district and acting under its direction, was engaged in cutting and burning brush and weeds on both sides of the said drainage ditch. On one side the fire spread from the burning weeds to the five-acre clover field and completely burned the clover. On the other side of the ditch the fire spread from the burning brush on the right of way to appellant’s timber and burned a day or two without interruption. The timber was badly damaged, including* a pile of 150 white oak posts and there was also burned 120 rods of woven wire fence of appellant which separated the timber tract from a pasture. The total loss claimed exceeded the sum of $600.

The controlling question of law raised is whether a drainage district organized under the Farm Drainage Act, Cahill's St. ch. 42, ¶ 120 et seq., can in the performance of its duties, negligently and wrongfully damage and destroy the property adjoining its right of way without liability for such damage. Appellant contends that because of the constitutional provision that private property cannot be taken or damaged for public use without just compensation and the further provision that urges a remedy for every wrong and under the holdings of the Supreme Court of this State he is given a right of action under the facts proven in this case. Appellee relies chiefly upon the case of Elmore v. Drainage Com’rs, 135 Ill. 269, which held expressly that a drainage district was a mere public involuntary quasi corporation, and that there is no corporate liability to respond in damages to an individual injured by the negligent or wrongful act of its officers, agents or servants- — in other words, that a drainage district was a governmental agency and in performance of its duties as such could not be held liable for negligence. It seems to us that this doctrine is not only modified but repudiated by the court in the case of Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36. It clearly holds that a drainage district is not a governmental agency and that the commissioners thereof do not have public duties thrust upon them nolens volens. Also that the organization of a drainage district is for the sole and exclusive benefit of the territory within the district, citing Commissioners of Union Drainage District No. 3 v. Commissioners of Highways of Township No. 40, 220 Ill. 176. In the case of Ringering v. Wood River Drainage & Levee District, 212 Ill. App. 170, the court in relying on the Bradbury case held that drainage commissioners in adopting plans and specifications for drainage work act in a judicial or quasi judicial character, and hence are not liable for such acts, but when they undertook to carry into effect such plans, they acted in a ministerial capacity and the drainage district was liable for the consequences of their acts, citing City of Chicago v. Seben, 165 Ill. 371, and Johnston v. City of Chicago, 258 Ill. 494. It seems to us that in burning off the weeds and brush on the right of way, the commissioners of the drainage district were pursuing their proprietary or private functions and are liable for damages caused by their negligent or wrongful acts.

There is no merit in the argument of appellee that appellant failed to make a prima facie case because it is nowhere shown in the record that Sherman Peters was ever employed by the district of was a servant of the same, inasmuch as the allegations of the declaration charged that the appellee, by its agent and servant, Sherman Peters, acting in the performance of his duties and the scope of his employment, was burning and cleaning the right of way, and in so doing negligently inflicted the injury upon the appellant, to which only the plea of not guilty was filed. The plea only denied the wrongful act alleged to have been committed and does not put in issue the question of agency. Mueller v. Hayes, 321 Ill. 275. If a railroad or individual had owned the right of way and committed the- same acts as the appellee, they would have been liable for the consequent damage. In this ease as the drainage district was acting in a ministerial capacity in maintaining its drainage ditch and right of way, it is not immune from a claim for damages arising from the torts of its agents. The judgment of the circuit court of Logan county is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Bessie Clardy, Appellant, v. S. O. Smith, Trustee of the Estate of Emery Otewalt, Deceased, Appellee.
    Gen. No. 8,798.
    Opinion filed January 12, 1934.
    James H. Murphy, for appellant.
    S. O. Smith, Jr., Jesse Peebles and E. E. Phelps, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Emery E. Otewalt departed this life testate, leaving Susan E. Otewalt, his widow, and Bessie Otewalt, now Bessie Clardy, his daughter, as his sole legatees and heirs at law. In his will he directed that his wife should be paid $2,000 and that his executor should take charge of the balance of his estate, convert the same into money, invest the proceeds and pay the income to his wife as long as she should live. At her death the executor was directed to pay the remainder of the income and the principal, of the estate to the appellant. D. 0. Vaniman was appointed executor of the will. During the administration of the estate D. C. Vaniman loaned to his son, A. T. Vaniman, the sum of $2,940, on a promissory note dated October 1, 1920, and dne two years after the date thereof. He also purchased from the trustees of the Peoples Bank of G-irard, Illinois, a note of Bichard Barnes for the sum of $3,500, secured by a mortgage on 80 acres of land in Macoupin county. This note and mortgage were dated February 9,1918, and payable five years after date. In 1922, D. C. Vaniman resigned as executor and by decree of the circuit court, S. O. Smith, the appellee, was appointed trustee to take charge of the estate, and he duly qualified and acted as such from the time of his appointment to date. He filed an inventory on December 31, 1923, listing the assets above enumerated. On July 6, 1932, the appellee filed a report of his acts and doings in the circuit court of Macoupin county, to which the appellant filed written objections, contending that the trustee should be personally charged with the amount of the Bichard Barnes note and mortgage and the note of A. T. Vaniman. Upon the hearing the circuit court overruled the objections and entered an order approving the report, to the entry of which order exceptions were taken and this appeal prosecuted.

The notes were never renewed but interest was collected in regularly by the trustee and paid over to Susan B. Otewalt as life tenant until sometime during the year 1929. In October of that year A. T. Vaniman became involved financially and after two judgments had been entered up against him he conveyed his property, consisting of a residence in Girard, to J. H. Tietsort as trustee for the benefit of his creditors under a trust agreement which provided that the property might be sold and also that A. T. Vaniman should pay to the trustee $100 per month on his indebtedness. The two judgment creditors réeeived" a partial preference under this trust arrangement and relinquished their liens upon the real estate. The trust property was at one time sold for the sum of $4,700 and $700 paid on the purchase price. The purchaser then defaulted and the property is now held by Tietsort, trustee for the creditors.

During the years from 1922 to 1929, Vaniman was regarded as a prosperous business man and responsible for his indebtedness. During July of that year the two judgments were entered against him. After this the appellant called upon the trustee and discussed Vaniman’s financial troubles with him. Vaniman paid the sum of $400 in to the trustee for the creditors and has paid nothing since. The property in the hands of the said trustee will only pay a small percentage of the amount due the creditors. There was about $2,500 due on the Vaniman note at the time the report was filed.

During the years 1929 and 1930 the trustee endeavored to obtain a deed from Richard Barnes to the 80 acres covered by the mortgage, but failed. He consulted the widow and daughter about foreclosure and finally brought foreclosure proceedings, which resulted in a sale and the trustee now holds the certificate of purchase to the 80 acres of land for the benefit of the Emery R. Otewalt estate. At the time the Barnes loan was originally made the 80 acres was worth from $60 to $70 per acre but at the time of the hearing on the trustee’s report was worth in the neighborhood of $20 per acre. Susan R. Otewalt died January 17,1932.

It is agreed by both counsel that the trustee was required to exercise the same care and prudence in the management of this estate which ordinary men would exercise in connection with their own affairs, and they are not chargeable for mere errors of judgment nor for accidental injuries or losses. Wylie v. Bushnell, 277 Ill. 484. The assets in question were received by appellee from D. C. Vaniman, his predecessor in trust. Neither of the loans was made by the present trustee. The interest was paid promptly and turned over to the widow until the collapse in 1929. At that time Vaniman and Barnes found themselves unable to meet their obligations and the trustee was left holding paper which he had always considered good, greatly depreciated in value. There is no intimation in the record that the trustee in any way acted for his personal gain or in any selfish manner betrayed the trust reposing in him. In the recent case of Suffolk v. Leiter, 261 Ill. App. 82, the court on page 118 said: “It is not strange, considering the size and character and situation of the estate, that some things could be found in its management that would be open to just criticism, and such is the fact in this case; but the same thing would be true of an ordinary person managing an estate of his own of like character and extent. These men are not to be judged by a standard of perfection which would insure the best results. It is sufficient if they have exercised reasonable care and prudence. . . . The law requires that a trustee must act in good faith in the management of all matters relating to the trust, and employ such vigilance, sagacity and diligence as prudent men of intelligence ordinarily employ in their own affairs. A trustee who in an honest effort to serve his trust errs in his judgment will not be condemned. If the rule were otherwise, it would not be possible to induce any person to act as trustee and assume the risk of losses which might result from mistakes of judgment.” In this case no dishonesty or misconduct is shown on the part of appellee and it is not reasonable to believe that he could have had the funds of this estate invested in any form of security in 1929, yielding a reasonable return, where a loss would not have been suffered. It is our judgment that the testimony does not show any such imprudence, misconduct or neglect on the part of the appellee that should require him to make good the losses to be suffered by this estate from the trust assets and the action of the circuit court in approving the trustee’s report is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Everett R. McFadden and Edward J. McArdle, Trustees, Appellants, v. Frank B. Lewis and Rachel Lewis, Appellees.
    Gen. No. 8,713.
    Opinion filed January 19, 1934.
    Rehearing denied February 14, 1934.
    Edward J. McArdle, Jr., for appellants; Edward J. McArdle, of counsel.
    Olson, Gurman & Lindskog and David R. Joslyn, Jr., for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Appellants’ assignors, Joseph Joyce and Mary E. Joyce, entered into a written lease with the appellees for the premises known as the Shercomb Hotel in the City of Chicago. Said lease was for a term of 10 years, which ran from May 1, 1916 to the 30th day of April, 1926, with an option to the lessees to extend the term for an additional 10 years, at an increased rental. The lessees entered into possession under the lease and held and possessed the premises continuously from May 1, 1916 to January 31, 1933, at which time the premises were surrendered to the appellants.

The lease provided that the lessees have the option to extend the lease for an additional 10 years on certain conditions. The important ones so far as this case is concerned are that the lessees exercise the option granted to them, by an instrument in writing, signed by them and delivered to the lessors six months before the expiration of the lease; that all rent be fully paid; that all of the covenants, conditions, terms, agreements and provisions of the original lease shall -extend to the extended term, except as to the annual rent, which shall be $85,000 for the term, instead of $75,000 as in the original lease.

The appellants filed their declaration in the circuit court of McHenry county alleging that the lease was assigned to them and under the terms of the same there was due them the sum of $5,124.93, for unpaid rent from July 1, 1932 to January 1, 1933. A judgment by confession was entered in favor of the appellants for the sum of $5,144.93, being the amount they claimed due them for the extended period of the lease. In this amount is included a $20 attorney’s fee for the plaintiff.

The defendants later appeared in court and entered their motion to set aside the judgment by confession, giving as reasons therefor stated that all rent accruing up to the 30th of April, 1926, had been paid; that ■ under the lease notice to exercise the option to extend the same should be signed by each of the defendants, and that only Frank B. Lewis had signed the same; that the power of attorney to confess judgment only applies to the rent prior to April 30, 1926; that the alleged notice to extend the lease was not signed by Rachel Lewis, and that confession by judgment in the lease only authorizes a confession against the defendants jointly.

The case came on for a hearing. After arguments of counsel on the motion, the court held that the judgment by confession was entered without jurisdiction of the defendants and granted the motion to set aside the judgment, which was done. From this judgment in favor of the defendants, the plaintiff brings the case to this court on appeal.

It has been repeatedly held, both by our Supreme Court and Appellate Courts that “authority to confess a judgment without process must be clear and explicit, must be strictly pursued, and if there is no power to enter the debtor’s appearance and confess judgment, the judgment is a nullity and may be collaterally attacked for want of jurisdiction.” The power of attorney set forth in the written lease in this case is the only authority granted by which the appellants can take a judgment by confession. The power of attorney is as follows: “The party of the second part hereby irrevocably constitutes Edward J. Mc-Ardle or any attorney of any court of record in this State, attorney for them and in their names on default by them of any of the covenants herein for one month and upon complaint made by said first party, his agent, or assigns, and filed in any such court, to enter their appearance in such court, waive process and service thereof, and confess judgment from time to time, for any rent which may be due to said party of the first part or the assignees of said party, by the terms of this lease, etc.”

The appellee relies upon the cases of Weber v. Powers, 213 Ill. 370; Hymen v. Anschicks, 270 Ill. App. 202; Weiss v. Danilczik, 262 Ill. App. 551, as supporting the contention that a lease for a definite term which provides for an extension of the same, a judgment by confession cannot be taken for the rent that accrues after the expiration of the original lease. The Hymen lease provides that the original term should be for one year and from year to year thereafter, unless the lease should be terminated by the lessor giving the lessee 60 days ’ notice in writing of his intention to terminate the lease. The power of attorney to confess judgment was for the amount of rent which might be due by virtue of the terms thereof or any extension of a renewed lease thereof, or by virtue of any holdover after the termination thereof, which may be in default as aforesaid.

In the case of Weber v. Powers, 213 Ill. 370, 373, the lease was for a period of 22 months, and before the expiration of this period the lease was renewed for a period of one year. The power of attorney given the lessor was as follows: “The party of the second part hereby irrevocably constitutes any attorney, of any court of record in this State, attorney in fact in his name, to enter appearance in such court, waive process and service thereof, and confess judgment from time to time for any rent which may be due said party of the first part, or the assignee of said party, by the terms of this lease, with costs, etc.” It will be noticed that the power of attorney to confess judgment is practically the same in the Weber case as the case we are now considering. The court in passing upon this power of attorney said, “Certainly, the warrant of attorney, contained in the lease, did not in express terms confer any authority to enter up judgment for any rent accruing after April 30, 1902, when the term mentioned in the written lease expired.”

In the Weiss v. Danilczik case, 262 Ill. App. 551, the parties had entered into a lease for three years, and there was a dispute between the parties as to the time to which the lease should be extended. The lessee continued in possession of the property after the term of the original lease. The lessor elected to treat the lessee as tenant from year to year. A dispute arose as to the rent and the lessor procured a judgment by confession for the rent of the premises that he claimed was due after the term of the original lease had expired. The power of attorney in the lease provided that judgment could be entered by virtue of the terms of the lease, or any extensions or renewal thereof, or by virtue of any hold-over after the termination thereof.

The warrant of attorney in this lease does not authorize a confession of judgment for rent which may be due according to the terms of a renewed or extended lease existing after the expiration of the original lease. In order for the appellants to prove their case, resort must be had to evidence of some kind aside from the lease itself to prove their case since it presents a question of fact. In the case of Weber v. Powers, supra, the court says: “If it be a question of fact to be determined by the jury, under the instructions of the court, whether the holding over is such as to create a new tenancy, then such question of fact cannot be determined by a confession of it in a cognovit, and by a judgment of confession, entered in pursuance of such cognovit. So to hold would be to deprive the debtor of his right to a trial by jury. The debtor, in authorizing a confession of judgment against him for rent, due by , the terms of a written lease which he has signed, cannot be thereby made to confess judgment in favor of a renewal of such lease, or in favor of a holding over under such lease. The fact of a renewal, or the fact of a holding over, is a fact dehors the written lease and the terms of the written power of attorney, contained in the lease. A judgment by confession must be for a fixed and definite sum and not in confession of a fact that can only be established by testimony outside of the written documents, required by the statute to be filed in order to enter up a judgment by confession.”

It will be observed that the power of attorney in the case we are considering is not as broad as in other of the Appellate Court cases cited. We have been unable to find any cases in this State that lay down a contrary doctrine to the cases to which we have referred in this opinion.

It is our opinion that the circuit court of McHenry county properly held that it did not have jurisdiction of the defendants in this case, and that the confession of judgment be held for naught. The judgment of said court should be and is hereby affirmed.

Jtidgment affirmed.