text:
    W. I. Grinestaff, Appellee, v. The New York Central Railroad, Appellant.
    Gen. No. 8,381.
    Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    Rearick & Meeks, for appellant; S. C. Murray, of counsel.
    Hutton & Clark, for appellee; Ernest Hutton, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

W. I. Grinestaff, appellee, recovered a judgment in the circuit court of Vermilion county in an action on the case for $7,500 to reverse which this appeal is prosecuted. On a former trial appellee also recovered a judgment which was reversed by this court for the reasons stated in our opinion rendered on that appeal. Grinestaff v. New York Cent. R. Co., 253 Ill. App. 589. Before the last trial the counts in the declaration based on wilful and wanton negligence were eliminated and a number of additional counts were filed and some additional evidence on behalf of appellee was introduced. The case was tried under the first, third, fourth, sixth and seventh counts of the original declaration and the first, second, third and fifth additional counts in all of which is charged common-law negligence on the part of the servants of appellant in backing an engine and tender across a public crossing in the City of Hammond, Indiana, except that in the first additional count there are set out certain sections of a statute of that State which provide that all railroads operating in the State shall have attached to each locomotive engine a whistle and a bell and that the engineer or other person in charge of or operating such engine when such engine approaches the crossing of any public highway in the State, and when it is not less than 80 nor more than 100 rods from such crossing, shall sound the whistle distinctly three times and ring the bell continuously until such engine shall have fully passed such crossing and that the company in whose employ such engineer or person may be shall be liable in damages to any person or their representatives who may be injured in property or person by the negligence or failure of such engineer or other person as aforesaid.

The accident occurred in the outskirts of the city of Hammond, Indiana, while appellee was driving an automobile north on Kennedy Avenue between 12:30 and 1:30 o’clock on the morning of Saturday, November 26, 1927. The automobile was driven by appellee and on the front seat with him sat a lady, Mrs. Cobb, who was killed in the accident. On the back seat of the automobile were Mr. and Mrs. Burnett. The tracks of appellant run east and west across Kennedy Avenue which extends north and south. There was a double set of railroad tracks, one for the eastbound traffic and one for the westbound traffic. West of the crossing were what are known as the Gribs on Yards. Sixty freight cars had been delivered to these yards and the engine and tender were backing eastward on the south track across Kennedy Avenue when the accident happened. It was a very dark night and objects could be seen but a short distance. The engineer on the engine had shut off the steam and the engine was “drifting” down to the crossing. There were red crossing lights at the crossing but no gates, flagman, signal or other devices to give warning of the approach of railroad cars. The evidence for appellee tended to show that as he approached the crossing he drove very slowly, about eight miles an hour; that he looked both ways, both east and west and saw no train approaching from either direction; that no whistle was blown nor bell rung; that he heard no sound of any approaching train; that there was no light upon the rear end of the approaching tender and that the headlight on the engine which was facing east while it was backing was dimmed so that it could not be seen by anyone west of the tender; that just as the front end of the automobile of appellee crossed the south rail of the eastbound track a large dark object loomed up on the west side of the automobile and collided therewith resulting in the destruction of the car and severe injuries to appellee. The conflict in the evidence is in regard to whether the whistle was blown and the bell rung and whether there was any light on the rear end of the tender. The engineer and fireman testified that there was a small blizzard light in the center of the rear end of the tender three and one half or four inches in diameter which was lit and that the whistle was blown as the engine approached the crossing and the bell was ringing. The apparent weight of the evidence is that no such signals were given before the collision and there was no blizzard light on the tender; Such being the evidence it was a question of fact whether appellant was guilty of the negligence charged and whether appellee exercised due care in attempting to pass over the crossing.

It is urged that the court erred in refusing to give the third, sixth and seventh refused instructions. The substance of the third refused instruction is embodied in instructions five and eight given for appellant as were also the principles announced in refused instruction six. The seventh refused instruction is as follows : “7. The court instructs you as to the fifth additional count of the plaintiff’s declaration, wherein he charges that the engineer and fireman in charge of this locomotive carelessly and negligently failed to give timely and sufficient warning after knowledge of the approach of plaintiff’s automobile.

“In determining the issues on that question, you are instructed that it is the law that the engineer and fireman had a right to assume that plaintiff Grinestaff would stop in apt time to avoid a collision, unless they knew the contrary or unless a reasonable person should have known that such was not the case, and if after the fireman discovered the approach of Grinestaff, he and the engineer did all that a reasonable person could do to warn said Grinestaff of the approach and proximity of the railroad engine, then and in that case plaintiff cannot recover under that count of his declaration.” This instruction is erroneous for the reason that it omits the element which would make the law announced therein applicable, viz., that appellee had knowledge of the approach of the engine. The engineer and fireman had no right to assume that appellee would stop in time to avoid the collision unless the latter either knew the engine was approaching or by reasonable care could have ascertained that fact.

We find no reversible error in the record and the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    William P. Sanner, Appellant, v. Clifford D. Sanner et al., Appellees.
    Gen. No. 8,403.

      Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    Redmon & Redmon and Steidley & Steidley, for appellant.
    McDavid, Monroe & Mann, J. J. Baker and Geo. B. Rhoads, for appellees.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

At the March Term, 1928, of the circuit court of Shelby county, William P. Sanner, appellant, filed his bill in equity making Clifford D. Sanner, Prances L. Sanner, S. S. Clapper, trustee, and numerous creditors of Clifford D. Sanner, parties defendant. In the original bill it is alleged in substance that Clifford D. Sanner was on the 23rd day of February, 1926, indebted to one H. I. Baldwin in the sum of $20,000 and that he was also indebted at the same time to the National Bank of Decatur in the sum of $10,000; that he requested complainant to sign two notes for the respective amounts payable to said creditors as a surety thereon; that complainant and Clifford D. Sanner are brothers, and Frances Sanner is the wife of Clifford D. Sanner; that on said day Clifford D. Sanner and Frances L. Sanner, his wife,.and complainant executed a written agreement by which Clifford D. Sanner and his wife agreed that if it became necessary for complainant to pay the said two notes, that Clifford D. Sanner and Frances L. Sanner would convey to Mm a certain farm owned by them subject to a mortgage in the sum of $24,000 releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State, Cahill’s St. ch. 52, If 1 et seq.; that said agreement was duly acknowledged before a notary public by C. D. Sanner and his wife as their free and voluntary act for the uses and purposes therein set forth including the release and waiver of the right of homestead, and was filed for record in the recorder’s office September 1,1926; that thereupon complainant signed said two notes as surety for the said Clifford D. Sanner and afterwards, on the 28th day of September, 1926, the said two notes having become due and Clifford D. Sanner and his wife being unable to pay the same, he was compelled to pay them.

It is further alleged in the bill that after the above agreement was executed, Clifford D. Sanner and his wife in violation thereof and in fraud of the rights of William P. Sanner, and with the intention to hinder and delay him from collecting the amount he was compelled to pay out as aforesaid, did on the 28th day of August, 1926, by their warranty deed convey all the above real estate to the defendant, S. S. Clapper, for the purported consideration of $1, which said deed recites that said conveyance to Clapper is in trust only, for the benefit of the creditors of the grantors, according to the terms of a certain trust agreement of even date with said deed; that at the time said deed was executed and delivered to Clapper the latter well knew that the execution thereof was in violation of the contract of said Clifford D. Sanner and his wife wherein they agreed to convey said real estate to complainant and in fraud of the latter’s rights under said contract and that the same would hinder and delay complainant in collecting from Clifford D. Sanner and his wife the amount of their indebtedness to him; that after the payment by complainant of the two notes on which he was surety hereinabove mentioned together with interest and attorney’s fees connected therewith, said Clifford D. Sanner and his wife in consideration of complainant having paid said notes, executed their promissory note for the sum of $23,969.14 with interest thereon at the rate of 7 per cent per annum which note contained the power of attorney authorizing the confession of judgment; that on August 29, 1927, judgment was entered by confession in favor of complainant and against Clifford D. Sanner and his wife on said last-mentioned note in the sum of $39,763.70; that an execution was issued and returned no property found and that an alias execution was also issued with a like result; that complainant knows of no other property than the above-described real estate out of which said judgment can be collected.

It is further alleged in the bill that the conveyance of Clifford D. Sanner and his wdfe to Clapper was in fraud of the rights of complainant and was for the purpose of hindering and delaying him in the collection of the indebtedness of Clifford D. Sanner and his wife; that said deed was executed after the agreement executed by Clifford D. Sanner and his wife to convey the above-described real estate to complainant in case he was compelled to pay said notes and said deed was executed and delivered to the said Clapper without the knowledge or consent of complainant; that there was no consideration for said deed to Clapper and that he as such grantee claims to hold said property in trust for the grantors or other persons in order to prevent its sale by virtue of the execution now in the hands of the sheriff of said county; that said judgment still remains in full force and effect and that there is now actually and equitably due to complainant thereupon the sum of $39,763.70 with interest thereon at the rate of 5 per cent per annum over and above all claims which the said Clifford D. Sanner or his wife may have by way of set-off or otherwise.

The prayer of the bill is that said deed to Clapper may be set aside and declared null and void as against complainant and that the real estate conveyed therein or so much thereof as may be necessary to pay said note may be ordered to be sold by the sheriff to satisfy the execution now in his hands and that complainant may have such other and further relief in the premises as equity may require.

To this bill the defendants filed a demurrer which was sustained and thereupon by leave of court the complainant filed an amended bill. The amended bill is substantially the same as the original bill and differs therefrom only in some inconsequential changes in phraseology.

To the amended bill are attached and made a part thereof a copy of the agreement between Clifford D. Sanner and his wife with complainant executed February 23, 1926, and also copies of the deed and assignment from Clifford D. Sanner and his wife to Clapper and of the trust agreement referred to in said deed both of the latter bearing date of August 28, 1926. To the trust agreement is attached a schedule showing the names of the creditors and the respective amounts of indebtedness due them from the grantor. Among the creditors listed are H. I. Baldwin with an indebtedness of $20,853.50 and the National Bank of Decatur with an indebtedness of $10,000. There is a memorandum under each one of these names to the effect that the note is signed by W. P. Sanner as surety. There is also an addendum to the original trust agreement between Sanner and his wife and Clapper and the creditors which was subsequently executed at some date not clearly shown by the proofs. These documents heretofore shown in the order of the dates of their execution are as follows:

“This agreement, made and entered into this twenty-third day of February A. D. 1926 between C. D. Sanner and wife of the town of Moweaqua, County of Shelby and State of Illinois, parties of the first part and W. P. Sanner of the County of Macon and State of Illinois, party of the second .part.
“Witness: That the said party of the second part has signed as surety two promissory notes, one in favor of H. I. Baldwin and the other in favor of the National Bank of Decatur. Whereas if it becomes necessary that the said W. P. Sanner, party of the second part, has to pay the above said notes the said C. D. Sanner and wife, parties of the first part, agree to convey to the said W. P. Sanner, party of the second part, the following described real estate: Northwest Quarter and the West Half of the Northeast Quarter, Section 29, Town 14, North Range Three East of the Third P. M., containing in all two hundred forty acres, more or less, subject to a $24,000.00 mortgage in favor of the Prudential Life Insurance Company.
“Witness whereof we have hereunto set our hands and seals on the day and year first above mentioned.
C. D. Sanner
Frances L. Sanner
W. P. Sanner.”
Exhibit B.
“Whereas, the undersigned, C. D. Sanner is indebted to various persons, and on account of serious illness has been and is now unable to pay said indebtedness in full.
“And whereas, the said C. D. Sanner desires all of his creditors to be treated in an equal manner, and to place Ms property in such condition that every debt which he owes shall, if possible, be paid in full.
“Therefore, in order to carry out his desires and wishes in said matter, and to avoid the expense of a bankruptcy proceeding, and to realize the greatest amount out of Ms property, so that his creditors shall be paid in full if possible, he, joined by Frances Sanner his wife executes this, the following trust agreement:
“1. The said C. D. Sanner and Frances L. Sanner his wife of the village of Moweaqna, county of Shelby and State of Illinois, parties of the first part, hereinafter called the debtors, and S. S. Clapper of the village of Moweaqna, aforesaid party of the second part, hereinafter called the trustee, and the several persons, companies, corporations and firms who shall approve of this agreement, being creditors of the third part, Witnesseth:
“2. That the said debtor is indebted to the said creditors in the several sums set opposite to their respective names in the schedule hereto attached, and marked ‘Exhibit A.’
“3. That in pursuance of this agreement and in consideration of the premises, the said debtor, joined by his said wife, hereby conveys and assigns unto the said Trustee, his heirs, executors and administrators, all and singular the real and personal property, credits and effects of the said debtor to which he is beneficially entitled, either in possession, reversion, remainder or expectancy, except such part or parts as may be and is held to be specifically exempt and as shown by schedule ‘B’ hereto attached and made a part hereof. Said real estate being conveyed by the debtor and his wife to said Trustee by a regular deed of Trust, signed, sealed and acknowledged and delivered to said Trustee for the purposes herein set out. To hold the same unto and to the use of said Trustee, his executors and administrators, according to the respect and nature and tenure thereof, hut subject to a mortgage now on the farm land of said debtor herein conveyed to said Trustee, and subject to the rights of any Life Insurance certificate held by any of the said creditors as collateral security.
“4. And for the consideration aforesaid, the said debtor joined by his said wife hereby appoint the said Trustee to be their true and lawful attorney, in their names and on their behalf to execute, sign and deliver any deed or other document which the said Trustee may think necessary or expedient for carrying into effect the trust and purposes of this agreement.
“5. And it is hereby agreed and declared that said Trustee shall stand possessed of the lands and hereditaments and personal property hereinbefore mentioned and conveyed upon trust, and shall sell and convey said lands and personal property, at such time or times, as the same shall be for the best interest of the creditors, and receive, collect and compel payment at the proper time of insurance policies, or other evidences of money owing to said debtor, as shall by these presents be conveyed to said Trustee in trust (subject to the payment thereout of such sums, if any, as any be due to encumbrancers), and all other moneys which shall come to the hands of said Trustee under or by virtue of the trusts or powers herein contained.
“6. Upon trust in the first place, to pay and retain thereout such costs, charges and expenses of or incidental to the carrying of the trust into effect.
“8. The said Trustee shall pay all claims at the proper time or times which are by law entitled to be paid in full, that are or may be entitled to priority, the same as in case of bankruptcy or insolvency, by proceedings in a Bankruptcy court.
“9. He shall pay, divide and distribute the proceeds at the proper time or times when said property can be so disposed of to bring the most money for the benefit of said creditors, ratably unto and among the said creditors in discharge of their said debts, by such installments and at such times as the Trustee shall deem best and to pay the surplus, if any, to the said debtor, or in case of his death to his said wife.
“10. Provided, always, it is hereby agreed and declared, that notwithstanding the power of sale herein-before given, it shall be lawful for the Trustee to postpone the sale and collection of any part of the said premises or the collection and sale of any other property transferred to the said Trustee by these presents, at such time as is consistent with reducing the same to money as soon as this can be wisely done.
“11. And in the meantime and until said premises respectively shall have been called in, collected, sold and converted into money as aforesaid, it shall be lawful for the Trustee at his discretion to lease, manage, employ, repair and insure against loss or damage by fire or otherwise, at the cost of the Trust estate, all or any part of said premises.
‘112. And it shall be lawful for the Trustee to carry on or cause to be carried on, the business of farming which the said debtor has hitherto carried on, and to use the income from said business:
“First, to pay the costs and charges as hereinbefore set out.
“Second, to pay the interest on the mortgage on said real estate, and the taxes that may become due and payable.
“Third, to pay the surplus, if any, ratably to the creditors.
“13. Provided, always, and it is hereby agreed and declared, that these presents shall not in any way prejudice or affect the rights or remedies of the said creditors against any surety or sureties or any other person or persons other than the said debtor. Nor shall these presents in any wise prejudice or affect any security which any of the creditors may have or claim for his debts. But nevertheless, if such security shall be enforceable against the said debtor or his effects, then in that case such creditor (unless he shall consent to abandon his security) shall be entitled to receive dividends or payments hereunder, or payment in full upon so much only of the said secured debt as may remain after such security shall have been realized or such surety shall have paid the debt for said debtor, or after credit shall have been given for the full value thereof.
“14. The said debtor hereby ratifies and confirms and covenants with the said trustee that he will, if and when required by him, ratify and confirm whatsoever said trustee shall do or purport to do by virtue of the said power herein given.
“15. It is understood and declared that the said debtor now has in force in life insurance policies aggregating $100,000.00, $50,000.00 of which is at once assigned to the trustee; that $30,000.00 of which is in the hands of H. I. Baldwin as collateral security for a loan; and that E. R. Harper holds $10,000.00 of said insurance as collateral security for a loan; that if and in the event, during the life of this trust, said policies should be paid in full, the surplus after the payment of the loans for which they are collateral security, shall be paid to the trustee for the benefit of the other creditors. Provided, that policy No. 2544279 for $10,000.00, shall remain in the hands of the debtor during his natural life, he to receive whatever dividends or payments that may be made to him during that time, but that at his death the face of said policy, if necessary, shall be paid to said Trustee for the benefit of his creditors. Provided, always, that all of said life insurance policies are hereby conveyed to said Trustee, or the proceeds thereof, subject to the rights of the parties hereinbefore set out.
“16. It is further agreed and declared that this trust agreement shall continue in full force and effect until after the death of the said debtor, C. D. Banner, unless sooner terminated by direction of a majority in number and amount of the creditors, directing said property to be turned into money and paid ratably among said creditors. Provided, the said debtor hereby declares it to be his intention that all of said creditors shall share pro rata in the proceeds of all his property, and in the event that any creditor attempts by suit or other legal proceeding to acquire a preference, or refuses to consent to this trust, then the Trustee herein is authorized to file a petition for said debtor in Bankruptcy.
“17. It is agreed by the said Trustee and the Creditors that the compensation to be received by the Trustee shall not exceed the sum of Two Hundred Fifty Dollars annually, but not then until the interest on the mortgage indebtedness and the taxes and fire and tornado insurance on the trust property are fully paid. Provided, on termination of this trust by full payment of all the creditors, then said Trustee shall receive such fee' as shall be reasonable. If said trust shall sooner be terminated by the direction of the majority, both in number and amount of said creditors, the compensation to be paid said Trustee on the ending of said trust, shall be the same compensation as is allowed now by the laws of Illinois to administrators and executors.
“18. In case of the death or resignation of the Trustee herein named, it shall be lawful and the creditors are hereby authorized by a majority of vote, both number and amount, to elect another Trustee to fill the vacancy so caused.
“19. It is further agreed that if and when said creditors shall be paid in full the several amounts due and owing to them, that the surplus, qf said property or the proceeds1 thereof shall be paid to the said Frances L. Sanner, wife of said debtor.
“20. This trust shall continue for one year after the death of the said C. D. Sanner, unless sooner terminated by the Creditors.
“In witness whereof, the parties hereunto have set their hands and seals this 28th day of August, 1926.
C. D. Sanner. (Seal)
Frances L. Sanner. (Seal)
S. S. Clapper, Trustee. (Seal)
C. A. Hedges. (Seal)
T. J. Gorden. (Seal)
Mrs. Ted Sash. (Seal)
Qhristiono B. Friedley. (Seal)
E. B. Harper. (Seal)
his John x Mathias (Seal) mark Witness to mark: E. B. Harper
Ira S. Deam. (Seal)
Emma A. Gaskill. (Seal)”
Schedule A.
“List of Creditors and the amounts owing to each:
H. I. Baldwin, Decatur, Illinois............$20,853.50
Note: $30,000.00 Life Insurance Policy held by creditor as collateral security. In addition thereto, the note is signed by W. P. Sanner.
National Bank of Decatur, Decatur, Illinois 10,000.00
Note: Note is signed by W. P. Sanner as security.
Samuel Sanner.......................... 10,000.00
C. B. Friedley........................... 10,000.00
Emma Gaskill .......................... 8,000.00
E. B. Harper............................ 4,000.00
(Life Insurance Policy of $10,000.00 held by E. B. Harper as collateral security.)
C. A. Hedges............................ 2,500.00
T. J. Gorden............................ 2,500.00
Caroline and Ira Beam................... 2,000.00
John Mathias ........................... 1,500.00
Edna Primmer Lash..................... 500.00
“In addition to the foregoing, there is a loan on the farm in the sum of $24,000.00. ’ ’
Addendum
“Addendum to the original Trust Agreement between C. B. Banner and wife Frances L. Banner, of the first part, S. S. Clapper, Trustee of the second part; and the various creditors signing said original Trust Agreement and this Addendum, parties of the third part, Witnesseth :
“That the said several parties hereto agree that said original Trust Agreement is confirmed in every particular, with the following exceptions:
“1. It shall be lawful for the Trustee to postpone the sale and collection of any part of said premises, or the collection and sale of any other property transferred to said Trustee by these presents, for the period of two (2) years from the date of said original Trust Agreement unless otherwise directed by a majority of said creditors, both in number and amount of claim.
“2. It shall be lawful for the Trustee to postpone the sale of said trust estate or any part thereof for a period of one additional year after the expiration of two years as above stated, unless otherwise directed by a majority in number only of said creditors.
“3. And said Trustee may postpone the sale of said trust property as set out in said Trust Agreement, for a further period not to exceed one year after the expiration of three years, by the unanimous vote of all the creditors of the said G. D. Sanner and Frances L. Sanner.
“It is agreed by all the parties hereto that this amendment to the original Trust Agreement shall not affect the original Trust Agreement except as this paper amends the same, and shall be attached to and form a part of the said original Trust Agreement.
“Witness the hands and seals of all the parties hereto this............day of December, 1926.
C. D. Sanner. (Seal)
Frances L. Sanner. (Seal)
S. S. Clapper, Trustee. (Seal)
his
John x Mathias (Seal)
mark
E. B. Harper. (Seal)
T. J. G-orden. (Seal)
C. A. Hedges. (Seal)
C. B. Friedley (Seal)
Ira S. Deam. (Seal)
Lutie 0. Sanner. (Seal)
Balph E. Sanner. (Seal)
Adm. of estate of Samuel Sanner, Dec’d.”

To this amended bill the defendants filed a joint and several answer in which they admit the execution of the document mentioned in the bill and deny that at the time of execution of said deed Clapper or any of the other defendants knew that the execution thereof was in violation of the contract and deny that it was a fraud on the rights of the complainant under said contract and that the same hindered and delayed the complainant in collecting from the said Clifford D. Sanner and his wife the sums they owed him, but aver that said deed and trust agreement were made only after full conference among all the creditors of said Clifford D. Sanner and wife, including the complainant, and were made and executed after full approval and consent of all of said parties, including the complainant, and was a common enterprise shared in by the complainant and to which he gave his approval and consent and into which by his words and conduct urged and induced the defendants to enter; that complainant repeatedly expressed his satisfaction with said arrangement and trust and his intention to join therein and solicited other creditors to sign the trust agreement and repeatedly expressed his intention to join therein and that by reason of his active solicitation several others were induced to enter into said • trust agreement; that he repeatedly promised to sign said trust agreement and join with the trustee and other creditors in consultation about the method of handling said trust matter and at all times participated and joined therein until recently when he completely reversed his position and attempted to obtain a preference over the other creditors; that all steps taken under said trust agreement have been with the knowledge and consent and solicitation of complainant and with his agreement to sign the same; that complainant by his words, actions and conduct had repeatedly ratified said trust agreement and the acts under it and has thereby bound himself thereto and it is against equity and good conscience for him to take any steps which will give him preference over the other creditors in the trust property; that said defendants had the right in the beginning of the matter to bring suit against said Clifford D. Sanner and enforce their rights and had the right to obtain a.preference for themselves; that they were induced by reason of the acts of complainant to enter into said trust agreement and to permit said trust property’ to be pledged rat-ably and proportionately as in said trust agreement is provided and that they thereby give np their rights to enforce their claims preferentially and that by reason of this fact and by reason of the acts and conduct of the complainant he is estopped from attempting to get any preference against said trust property, etc.

The cause was referred to the master in chancery and to his report objections were filed by both parties. On a hearing before the chancellor the objections were allowed to stand as exceptions to the report and the exceptions of the defendants thereto were sustained and those of the complainant were overruled. The chancellor found in substance that complainant was estopped in equity from enforcing his equitable lien, if he had any, his words and acts preceding the execution of the deed of trust and the trust agreement and entered a decree dismissing the bill for want of equity.

The first question which must be determined is whether the agreement between complainant and Clifford D. Sanner and his wife executed at the time he became surety on the notes of the latter created an equitable lien. “As a general rule any express ex-ecutory contract in writing, based upon a valuable and adequate consideration, whereby one party clearly indicates an intention to charge or appropriate some particular property, real or personal, therein described or identified, as security for a debt or other obligation, or whereby one party promises to assign, convey, or transfer the property as security for such a debt or obligation, creates an equitable lien upon the property so indicated which is enforceable against the property in the hands, not only of the original contractor, but also of his heirs, personal representatives, assigns, or purchasers or encumbrancers with notice.” 37 C. J. 315. In the case of Oppenheimer v. Szulerecki, 297 Ill. 81, the court approved this rule which is also laid down in Pomeroy’s Equity Jurisprudence. In Aldrich v. Ederer Co., 302 Ill. 391, the court held that whenever parties enter into an express executory agreement in writing indicating an intention to make some particular property, real or personal, or a fund, security for a debt, there is created an equitable lien on the property described in such contract; that it is not a jus in re or a jus ad rem; neither a debt nor a right of property, but a remedy for a debt, and is simply a right of a special nature over the thing which constitutes a charge upon the thing, so that the very thing itself may be proceeded against in an equitable action and either sold or sequestered under a judicial decree and its proceeds applied upon the demand of the credit tor in whose favor the lien exists. There is no doubt but that this agreement created an equitable lien on the real estate therein mentioned for the debt complainant obligated himself to pay by becoming a surety on the two notes of his brother. The fact that complainant after he paid the notes of Clifford D. Sanner took a note from Sanner and his wife for the amount he so paid did not waive the lien created by the agreement. Brady v. Anderson, 24 Ill. 110; Paddock v. Stout, 121 Ill. 571; Vansant v. Allmon, 23 Ill. 30; Rohrer v. Deatherage, 336 Ill. 450.

It is claimed by appellees that the trust deed executed by Clifford D. Sanner and wife to Clapper as trustee and the trust agreement executed by Clifford D. Sanner and wife, Clapper and certain creditors of Clifford D. Sanner constitute a common-law assignment for the benefit of the creditors of Clifford D. San- , ner and wife. It is apparent from the wording of these documents that they were only intended to apply to such creditors as signed the trust agreement. Paragraph No. 1 of the trust agreement designates the parties thereto as C. D. Sanner and wife as parties of the first part, S. S. Clapper, trustee, party of the second part, “and the several persons, companies, corporations and firms who shall approve of this agreement, being creditors, of the third part.”' The addendum to the original agreement also designates C. D. Sanner and wife parties of the first part, S. S. Clapper, trustee, party of the second part and the various creditors signing said original trust agreement and the addendum parties of the third part and then sets out: “That the said several parties hereto agree that said original Trust Agreement is confirmed in every particular, with the following exceptions:” The addendum concludes as follows: “It is agreed by all the parties hereto that this amendment to the original Trust Agreement shall not affect the original Trust Agreement except as this paper amends the same, and shall be attached to and form a part of the said original Trust Agreement.” While the National Bankruptcy Act of 1898 suspended the Illinois Statute concerning voluntary assignments, Cahill’s St. ch. 72, f 40 et seq., a debtor may nevertheless make a common-law assignment for the benefit of his creditors (Pogue v. Rowe, 236 Ill. 157) and if these instruments do in fact constitute a common-law assignment then the debtor had a right to prefer one creditor over another. Howell v. Edgar, 4 Ill. 417, Conkling v. Carson, 11 Ill. 503; Gibson v. Rees, 50 Ill. 383; Cooper v. McClun, 16 Ill. 435. In our opinion, however, under the facts in this case the rights of the parties do not depend upon the solution of this question.

The proposition is advanced by appellees that even if the agreement between complainant and Clifford D. Sanner and wife for the conveyance did in fact by its terms create an equitable lien, yet appellant cannot avail himself of such lien for the reasons, first, because no such lien is claimed in the bill of complaint; and second, because appellant is estopped by his words and acts from asserting the lien. All the necessary facts to establish such a lien were set out in the original bill and also in the amended bill. The claim that such a lien existed was urged and argued before the master in chancery as is shown by his report: “In the argument of Counsel for the Complainant it was urged with considerable force that the instrument known as ‘Exhibit A’ created an equitable lien in favor of the Complainant on the Two Hundred Forty (240) acres of land mentioned - in said instrument. While no specific charge of that kind was contained in the Bill nor in the prayer for relief in said Bill it is now contended by the Complainant as one of the grounds for relief.” On the hearing before the chancellor appellant asked leave to amend the amended bill by inserting therein words to the effect that the execution of said written agreement between complainant and Clifford D. Sanner and his wife created an equitable lien upon said lands mentioned therein in favor of the complainant to secure complainant for all money which he would have to pay out on account of the signing of the two notes as surety for Clifford D. Sanner and his wife. Such leave was granted and the amendment made. This last amendment was but a conclusion of law and added nothing to the force and the averments already in the original and amended bills, and even if this were not so complainant had the right to amend his bill to conform to the proofs at any time before the final decree was entered.

As to the second proposition of appellees we are not impressed with the reasons advanced for the application of the doctrine of estoppel. The assignee under a common-law assignment for the benefit of creditors is not a purchaser for value but takes only the interest of the assignor and is subject to all the equities in third parties whether the assignee has knowledge thereof or not. In this case the assignee had full knowledge of the equitable lien of appellant. He himself testified that appellant gave him the agreement and requested him to procure a deed from the debtor and his wife in pursuance thereof; that he took the agreement to the debtor and told him of appellant’s request and that he advised the debtor himself not to execute the conveyance called for in the agreement but to make an assignment of his property for the benefit of all his creditors. The testimony of the debtor and his wife and of the assignee is to the effect that the assignment was later executed for the purpose of preventing appellant from taking advantage of his lien. It was said in the case of Hooven, Owens & Rentschler Co. v. Burdette, 153 Ill. 672: “The rule is well settled that the assignee of a failing debtor takes the property assigned subject to all equities, liens or incumbrances which existed against the same in the hands of the insolvent.” It is held in Hefner v. Vandolah, 57 Ill. 520: “The doctrine of estoppel in pais is to prevent injuries arising from acts or declarations which have been acted on in good faith, and which it would be inequitable to permit the party to retract. In order to create such an estoppel, the party estopped must have induced the other party to occupy a position he would not have occupied but for such acts and declarations. Knoebel v. Kircher, 33 Ill. 308.” In the case of Lowenberg v. Booth, 330 Ill. 548, the rule of equitable estoppel is defined as follows: “In order to invoke the principal of equitable estoppel six elements must appear: (1) Words or conduct by the party against whom the estoppel is alleged amounting to a misrepresentation or concealment of material facts: (2) the party against whom the estoppel is alleged must have knowledge, either actual or implied, at the time the representations were made, that they were untrue; (3) the truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time they were made and at the time they were acted on by him; (4) the party estopped must intend or expect that his conduct or representations will be acted on by the party asserting the estoppel or by the public generally; (5) the representations or conduct must have been relied and acted on by the party claiming the benefit of the estoppel; and (6) the party claiming the benefit of the estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party is permitted to deny the truth thereof.” The proofs in this case show that during the time the meetings were held in Clapper’s office at which Clapper and various creditors were present and the subject matter of the execution of the trust deed and the trust agreement and the terms thereof were discussed, and at the time of the final execution thereof by the debtor, trustee and some of the creditors, complainant was not in fact a creditor. The notes on which he was surety had not become due and he had not paid the same. In the schedule of creditors attached to the trust agreement his name is not listed therein as a creditor. He did not pay the notes until September 28, more than a month after the execution of the trust agreement. The addendum to the trust agreement was not executed, the proofs show, until some time in the latter part of December 1926, four months after the original trust agreement and deed of assignment. This addendum gives the trustee further powers and discretion in the postponement of the settlement of the estate of the debtor. Its effect was to create a new agreement ab initio and there is no pretense or proof that complainant ever in any way at any time acquiesced in the trust agreement as amended by the addendum. The number of meetings of the creditors held at Clapper’s office prior to the execution of the trust agreement is uncertain. Some witnesses state there were four and some that there were three. Complainant testified that he only attended two of the meetings. Some of the other witnesses testified that he was present at all of them and others admit that he was not present at some of them. Those creditors who testified that complainant stated that the execution of the trust agreement was the proper thing to do and that he was in favor of it, also testified that he repeatedly said that he would not sign it until he had consulted with his lawyer. It is hard to reconcile this testimony. The evidence is conclusive that the proposed trust agreement was discussed, criticized and redrafted several times before it was finally accepted and executed by those creditors who did sign it. The trustee, Clapper, and one of the creditors testified that complainant was asked by Clapper to procure the execution of the trust agreement by one of the creditors who had never attended any of the meetings and that he agreed to do this and did so. Complainant denies that he ever solicited any of the creditors to sign the agreement and no creditor testified that he or she signed the agreement at his solicitation and no witness testified that he heard or saw appellant request any creditor to sign the agreement. It may be true that at some of the meetings complainant might have expressed an opinion in the presence of some of the creditors that the proceeding contemplated would or might be a good thing and that he was in favor of it, but the evidence stands uncontradicted that he at all times stated he would not sign the trust agreement without first consulting his lawyer. At all these times, when these statements were alleged to have been made, appellant was .not in fact a creditor of the debtor and the creditors knew that he was not such a creditor and knew that he would not execute the agreement without first seeking legal advice. "While he probably knew that he would in all probability have to pay the notes on which he was surety for the debtor when they became due, yet, at the same time, he also knew that in that event he had what he thought was security by reason of the written agreement for the conveyance of the land to him executed by the debtor and his wife. He was a farmer and it is not unreasonable that under the circumstances he should desire to seek the advice of counsel and learn what his legal rights were. At these meetings, he was only one individual among a number of creditors who were present and everyone knew that the debtor was in financial trouble but there is no evidence to show that he was actually insolvent. While Clapper testified that the trust agreement as finally drafted was read to all those present at the meeting, it is doubtful whether complainant and the creditors really knew the full import of all the provisions in such a lengthy document and Clapper also testified that complainant asked him for a copy of the agreement which he refused to give to him on the ground that he had no more copies. As collateral security for the debtor’s note of $20,853.50 payable to H. I. Baldwin on which complainant was surety the debtor, Clifford D. Banner, had assigned to said Baldwin life insurance ■ policies for $30,000 as collateral security. When complainant paid this note Baldwin delivered to him this collateral security. Subsequently complainant requested Clapper to procure from the debt- or an assignment of the policies to him in order to enable him to raise enough cash to pay the two notes on which he was surety. The policies had a loan value of $6,468.38. Clapper procured the assignment and delivered the same to complainant who thereupon procured as a loan on the policies said sum of $6,468.38. This transaction is also urged as an evidentiary act of estoppel: A surety who obligates himself to pay a debt may take security to protect himself in case of the maturity of the obligation and he had a right to protect himself by procuring all the security possible. There was nothing in this transaction which can be construed as a waiver of the equitable lien impressed upon the real estate of the debtor in consideration of his becoming surety upon the latter’s notes nor does it in any way tend to make him a party of the trust agreement. In our opinion the evidence in this case does not tend to show that such creditors as executed the trust agreement and the addendum thereto were influenced so to do by any words or acts of complainant or that any of such acts constituted a waiver of his equitable lien or placed him in a position where he was bound by said trust agreement as though he himself had signed it. The doctrine of equitable estoppel can have no application to the facts proved by this record.

Section 13 of the trust agreement provides that the same shall not in any way prejudice or affect the rights or remedies of said creditors against any surety or sureties of any other person or persons other than the said debtor, nor shall it in any way prejudice or affect any security which any of the creditors may have or claim for his debts, but if such surety shall be enforceable against said debtor or his effects, then in that case such creditor (unless he shall consent to abandon his security) shall be entitled to receive dividends thereunder or payment in full upon so much only of the secured debt as may remain after such security shall have been realized or such surety shall have paid the debt of the debtor or after credit shall have been given for the full value thereof. There is no evidence that complainant ever expressly consented to abandon the security of his lien and unless the facts above enumerated can be construed as constituting such an abandonment then there was none. From what we have already said there was no abandonment or waiver of his equitable lien.

When complainant paid the debtor’s note held by Baldwin, the attorney for Baldwin charged him $900 attorney’s fees provided by the note in case judgment was entered thereon and threatened to place the note in judgment unless he paid him this amount as attorney’s fees. Complainant paid the $900 and this sum is included in the judgment note payable to complainant and executed by the debtor on which judgment was subsequently entered. Complainant may have thought that he was compelled to pay this attorney’s fee but nevertheless it was not a legitimate debt of the'debtor and in equity and good conscience the latter should not be charged with this amount. The judgment should be credited with the sum of $6,468.38 received by complainant from the loan on the insurance policies and also with the sum of $900, the amount he paid as attorney’s fees.

The decree of the circuit court is reversed and the cause remanded with directions to enter a decree in accordance with the prayer of the amended bill after allowing the credits on the judgment hereinabove specified.

Reversed and remanded with directions.


author: Mr. Justice Niehaus

text:
    Edward H. Trabue, Defendant in Error, v. Robert L. Bowman, Plaintiff in Error.
    Gen. No. 8,315.

      Opinion filed April 22, 1930.
    Frank A. Whiteside, Gillespie, Burke & Gillespie and Hugh G. Dobbs, for plaintiff in error.
    Thomas Henshaw, Green & Verlie and Chapman & Du Hadway, for defendant in error; Jack McDonald, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

The defendant in error, Edward H. Trabue, filed a motion in this case to dismiss the writ of error herein, or in the alternative to transfer the cause to the Supreme Court, contending that a freehold is involved in the determination of the issues. Upon a careful consideration of the right of the defendant in error to have the case transferred to the Supreme Court, we have reached the conclusion, that a freehold is not directly involved in the determination of the question of right to specific performance; and the motion is therefore denied.

Concerning the facts involved in this controversy the record discloses that the plaintiff in error, Robert L. Bowman, on or about the 20th day of May in the year 1920 executed a written agreement or contract with the defendant in error, Edward H. Trabue, for the purchase of 160 acres of land situated in Greene county, which adjoined the farm of 320 acres already owned by the plaintiff in error.

The written agreement which constitutes the contract of sale entered into, is as follows:

“Agreement — Sale of Eeal Estate.
“This Indenture, made this 20th day of May A. D. 1920, between Edward H. Trabue, party of the first part, and Eobert L. Bowman, party of the second part,
“Witnesseth, That the party of the first part has this day sold to the party of the second part the following described property, to-wit:
The N% and the SW% of SW% and S% of S% of NW% of Section 31, Town. 11 N, Eange 10 West in Greene County, Illinois,
together with all appurtenances thereto belonging and now thereon, for which the party of the second part agrees to pay the sum of sixty-four thousand and 00/100 dollars ($64,000.00), payable as follows: Cash in hand thirteen hundred and 00/100 dollars, receipt whereof is hereby acknowledged. Balance note for four thousand dollars, payable March 1st, 1921, the receipt whereof is hereby acknowledged and the balance March 1st, 1921 ($58,700.00). The above mentioned note to be without interest until maturity.
“The party of the first part is to furnish to the party of the second part, or assigns, a warranty deed and a good and sufficient abstract of title, showing a good title of record to the premises hereinafter described in the party of the first part on or before March 1st, 1921, assign all insurance on said buildings, pay all taxes and assessments against said real estate, and if there is a mortgage on said property, pay interest and taxes thereon up to March 1st, 1921, and give possession by March 1st, 1921. It is mutually agreed that time is an essential element in this contract, and it is further agreed that in case either of the parties hereto fail to perforin the stipulations of this contract, or any part of the same, the failing party shall pay to the other party of this contract the sum of fifty-three hundred dollars ($5,300.00) as damages for nonfulfillment of contract.
“In Testimony Whereof, the parties aforesaid have subscribed their names the date above mentioned.
Robert L. Bowman,
Second Party.
Edward H. Trabue,
First Party.
Witness:
Carson T. Metcalf.”

After the execution of the written agreement, the plaintiff in error paid the cash payment of $1,300, and afterwards, also paid the $4,000 note payable on March 1,1921, but did not make payment of the $58,700 balance, which was to be due on the purchase price of the land on March 1, 1921. The record discloses that the defendant in error, after making tender of a deed and abstract, and an offer to comply with his part of the agreement, and after plaintiff in error’s refusal to accept the same, filed a bill in the circuit court of Greene county, for specific performance of the contract of sale, to enforce the payment of the balance alleged to be due and payable under the contract. A demurrer was filed to the bill of complaint, which was sustained by the court. On appeal, this court reversed the order of the court sustaining the demurrer and dismissing the bill, and remanded the cause with directions to overrule the demurrer. The reasons for reversing and remanding the cause are stated in the opinion of this court, namely, that: “the question before the court upon this appeal is not whether after a full hearing a court of equity should decree specific performance. The only question before us is, does the hill upon its face state a cause of action calling for the intervention of a court of chancery.” Trabue v. Bowman, 227 Ill. App. 622.

After reinstatement of the case in the court below, the plaintiff in error filed his answer to the bill, and in the answer he avers his defense to be as follows: “This defendant avers that he did enter into negotiations on and prior to the 20th of May, 1920, with A. H. Haven and Carson T. Metcalf, who were then and there the agents of the complainant, which negotiations culminated in a verbal contract or agreement between this defendant and said agents by which this defendant agreed to purchase the premises described in said bill for the sum of $64,000 on March 1, 1921, or to forfeit and pay as an option on said premises the sum of $5,300; and this defendant avers that it was expressly and distinctly understood between him and the agents of said complainant that in case he did not see fit to carry out the contract of sale and to pay the said sum of $64,000.00, that he would be relieved from all obligations under said contract by the payment to the complainant of the sum of $5,300 as provided for in the contract. . . . And this defendant avers that when he signed said written memorandum of sale he understood and believed that said memorandum gave him the option of either accepting the complainant’s deed to the premises and paying the full price of $64,000.00 therefor, or of declining to accept said premises by paying the sum of $1,300 cash payment, which he then and there made, and his said note for $4,000 in full of said option.” It is also averred, as a matter of defense, “that it would have been impossible for the defendant on the 1st day of March, 1921 and ever since that time, to have paid to the complainant the sum of $62,700 balance of the purchase price of said premises, for the reason that this defendant did not then, or has he since had, or been able to obtain that amount of money. That the property had at that time and has ever since been so depreciated that it has been impossible for this defendant to have borrowed the said sum of $62,700; that all the property owned by this defendant and said property described in said memorandum of agreement would not have been considered sufficient in value to secure the payment of said sum of $62,700, and that the defendant was then and there and has ever since been wholly unable to obtain the said sum of $62,700.” The matter of the depreciation of the value of the land purchased above stated is not available to the plaintiff in error as a defense to a decree of specific performance. Adams v. Larson, 279 Ill. 268.

A hearing was had upon the issues raised by the bill and answer; and the court thereupon entered a decree to compel the plaintiff in error to perform his part of the contract by making payment of the balance of the purchase price of the land sold to him by the defendant in error. This writ of error is prosecuted from the decree.

The evidence discloses that the defendant in error made sale of the land in question through the agency of A. H. Haven and Haven’s partner, Carson T. Met-calf ; and that the plaintiff in error entered into negotiations with these agents for the purchase of the land; and that the negotiations culminated in an agreement with the plaintiff in error for the purchase of the land in question by him, for the sum of $64,000 or $400 per acre, with the understanding, however, that the plaintiff in error had an option to refuse to complete the sale to him and to be released from the payment of a balance of $58,700 purchase money due on March 1, 1921, by forfeiting the first payments made amounting to the sum of $5,300; and a written contract was then prepared by Metcalf representing the defendant in error to embody the terms of sale and to include the option mentioned; and this contract was signed by the plaintiff in error with the understanding that the contract as written did not contain the option mentioned. And Metcalf testified at the hearing that he intended in preparing the contract to embody in the agreement arrived at between him and the plaintiff in error regarding the alleged option; and that he told the plaintiff in error that under the contract he would have the option.

The plaintiff in error’s testimony concerning the transaction is as follows: “The talk I had with Mr. Haven before I entered into that written agreement was, I asked him if they had it listed, and he said, ‘no, not yet, but I think we will have pretty soon. ’ Before the trade was made he said, ‘we have our contract with Mr. Trabue, and we will have to sell it for $64,000.’ Q. What was said about the terms of the trade? A. Well, he says ‘you will have to see Mr. Metcalf about the terms of the contract,’ and so when they got the contract ready Mr. Metcalf called me up and says, ‘the contract for the sale of that land is ready to be signed. ’ I went in, and in reading it over I saw where it says, $1,300 cash and a note for $4,000 to be paid the next March. Well, I says to him, ‘what about this $1,300 being cash?’ I was a little suspicious. He says, ‘that is the way Mr. Trabue wants it.’ . . . And he says, ‘this $1,300 is to cover the commission and the $4,000 is a forfeit provided you do not want to take the place,’ and he emphasized that ‘in case anything happened, you do not take the place, you will lose the forfeit, and it will be all right according to the contract. ’ . . . I negotiated for the sale of the land with Mr. Haven. He said, ‘Metcalf and I are together, and he will explain the contract. ’ . . . Mr. Metcalf prepared the contract. Before the contract was signed he told me if I decided not to take the place before the 1st of March it would cost me $5,300. . . . At the time I entered into this contract, and pending the negotiations for the purchase of the land, I entered into it with the understanding and agreement that I was to have the right to forfeit $5,300 and not comply, or have to take the place. . . . Q. What did Mr. Carson Metcalf tell you about it before you signed this paper? ... A. He told me the $1,300 was to cover the commissions and $4,000 was forfeit money, if I concluded for any reason, I didn’t want to take the place. ... I would not have entered into any positive agreement without reservations to have taken that place at $64,000, when I knew I would have to borrow $50,000. . . . Mr. Metcalf knew I would have to borrow that much. At the time I signed my name to that memorandum or agreement of sale marked ‘Exhibit B,’ I was informed by Mr. Carson Metcalf that if I decided not to take the place it would cost me $5,300, $1,300 in cash and the $4,000 note.”

The testimony of Metcalf, who conducted the final negotiations for the sale of the lands for the defendant in error, and prepared the written contract concerning the terms of sale agreed upon, is as follows: “Q. In your negotiations with Mr. Bowman, in your talles with Mr. Bowman, up until the time this contract was signed, what did you tell him about his option he would have, about his right to forfeit a certain amount and refuse to take it before the 1st of March, in case he refused to take it? ... A. I told Bowman $4,000 was asked as a forfeit. Q. What did you tell him, if anything, about his right, if he saw fit not to carry out the terms of the contract, what it would cost him at the time of the contract marked ‘Exhibit B’ was signed? ... A. I phoned Bowman that the contract was ready for signatures. He came in, I read it to him and explained the condition of the $1,300 more than he had originally intended as a forfeiture. I says, ‘that means if you don’t take the farm, yon will lose this $1,300 you are paying today, and you will have to pay the note which you are giving for $4,000 balance.’ He said, ‘all right’ and signed his name and executed the note. I wrote the note myself on the typewriter and prepared the contract which was read over to Mr. Bowman. In preparing that contract, it was my intention to provide an option there that could be taken up and the rest of the contract abrogated. Mr. Trabue had insisted on $5,300 being the amount of the payment. $1,300 would take care of the commission, which it did, and $20 more, leaving the $4,000 note as in the original agent’s contract. This $4,000 note was to be paid in any event, whether Bowman took the land or not.”

The evidence shows, that after the execution of the contract, the plaintiff in error in good faith made an earnest and energetic effort to procure the balance of the money which he was required to pay on March 1, 1921; but owing to the general and rapid decline in farm land values and the financial stringency prevailing in the money market, he was unable to procure the amount necessary for that purpose, even by mortgaging his 312-acre farm with the 160 acres purchased. The financial difficulties which had arisen is emphasized by the defendant in error’s refusal to aid the plaintiff in error in completing his purchase except as required by the written agreement. And this is apparent from the defendant in error’s own testimony. The record discloses that after making repeated attempts to borrow money, the plaintiff in error went to the defendant in error, to ascertain if he would accept a $50,-000 mortgage instead of the cash necessary to enable him to complete his purchase; but the defendant in error refused to consider this proposal. His testimony on this point is as follows: “He (the plaintiff in error) met me on the road one day when I was going out for a load and asked me if I would leave $50,000 in the place, and take a mortgage; that money was pretty scarce. 1 told him I would like to take that into consideration. The next day I met him and asked him how much would the mortgage cover. He said the whole farm, meaning the 160 acres I had sold him, and the 320 he already owned. I asked him how long he wanted it. He said for just one year. I told him this was not according to the contract and I would rather not do it. ’ ’ After he found his efforts to raise the requisite amount of money unavailing the plaintiff in error notified the defendant in error that he would exercise the option not to take the farm which he claimed to have under the contract, by forfeiting the $5,300 which he had paid.

It is contended by the defendant in error that the contract which is the basis of the bill of complaint, praying for specific performance, is clear and definite in its terms; and that there is no evidence of any fraud or false representations in procuring its execution; and therefore the case presented is a proper one for the exercise of the jurisdiction of a court of equity, to enforce specific performance. The rule concerning the right of a complainant to resort to a court of equity to enforce specific performance of the contract is well settled; and has been repeatedly and clearly defined by our Supreme Court. In Adams v. Larson, 279 Ill. 268, the rule is stated as follows: “Whether the specific performance of a contract will be granted depends largely upon the facts of each case. Even where the terms of the contract are clear, certain and unambiguous, specific performance is not a matter of right, but rests in the sound discretion of the court, to he determined from all the facts and circumstances. Sugar v. Froehlich, 229 Ill. 397; Espert v. Wilson, 190 Ill. 629. But when there is no oppression or fraud in the execution of a contract, courts of equity will enforce the contract to sell land if understandingly entered into.” And in Edwards v. Brown, 308 Ill. 350, the court makes the same comment concerning the general rule: “Whether the specific performance of a contract will be granted depends in a large measure upon the facts and circumstances in the case. Even where the terms of the contract are clear, certain and unambiguous, specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances.” And in McDonald v. Bartlett, 324 Ill. 549, the latest expression of the court on the subject is as follows: “It is only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted that a court of equity will grant relief by way of specific performance. Wisherd v. Bollinger, 293 Ill. 357; Thackaberry v. Tibbe, 284 Ill. 199.”

It is also contended by the defendant in error that the evidence introduced on the hearing concerning the negotiations for the sale of the land to the plaintiff in error and the verbal understanding and agreement arrived at by the parties in consummation of the sale, which were to be embodied in the written agreement, was not competent, and cannot legally be considered to determine the question of the defendant in error’s right to specific performance of the written contract. This evidence was properly admitted; and is competent to show the facts and circumstances connected with the transaction between the parties for the sale of the land, which resulted in the contract in question. The same point was under consideration in the case of Race v. Weston, 86 Ill. 91; and the court there said: “That parol evidence of the circumstances connected with the transaction, and the declared intention of the parties, in executing the writing, is admissible for the purpose of showing fraud, accident, or mistake, is as well established as any other principle governing courts of equity in such cases.” The parol evidence of the circumstances connected with the transaction of the sale of the land in question, and the declared intention of the parties involved in the transaction leaves no room for doubting that the written agreement or contract was drawn for the purpose of effectuating what had been verbally agreed upon concerning the option claimed by the plaintiff in error, namely, that by suffering a forfeiture of the $5,300 paid on the purchase of the land he would be released from the further obligation of paying the balance of the purchase price and taking the land. Mr. Metcalf’s statement that he aimed to express the plaintiff in error’s option in the contract, and that the contract did contain this option in its terms is not without foundation when the contract is examined, bearing in mind Met-calf’s statement. It will be noticed that by the terms of the contract two balances are stated in the contract. One balance was to make up the sum of $5,300, the amount of the forfeiture in the contract; and then another balance, namely, the amount to be paid to compléte the amound of the purchase price for the land. It is a reasonable inference that the contract was worded in the manner indicated to show the first balance which the plaintiff in error would have to pay in case he desired to exercise his option to forfeit the $5,300; and the other balance, to indicate the amount remaining to be paid in case the sale of the land was completed.

It is quite clear from the evidence that the plaintiff in error in the light of Metcalf’s statement that the contract expressed his option, interpreted the contract in that way; and it cannot therefore be said that the plaintiff in error executed the contract understanding that defendant in error would have the right under its terms after paying the amount due on forfeiture, to compel him to pay the balance of $58,700 and take the land. Metcalf was intrusted by the defendant in error to make sale of the land, and he is bound by what Metcalf did and said, and the representations made to the plaintiff in error to effectuate such sale, and to obtain his signature to the contract for that purpose, to the same extent as if he had personally carried on such negotiations and had written the contract himself. What was pointed out by the court in the case of Rockford, R. I. & St. L. R. Co. v. Shunick, 65 Ill. 223, is particularly applicable here: “The appellant could not seek to take the fruits of the contract without adopting the means by which it was obtained.”

And under the facts and circumstances disclosed by the record, we conclude that the defendant in error is estopped to deny that the plaintiff in error had the right to the option claimed by him. “The true principle of sound ethics is to give the contract the sense in which the person making the promise believed the other party to have accepted it if he in fact did so understand and accept.” Wells v. Carpenter, 65 Ill. 447. “Where the contract is in fact understood by one of the parties in a certain sense, and the other party knows that he so understands it, then the understanding is to be taken in that sense, provided this can be done without making a new contract for the panties.” Street v. Chicago Wharfing & Storage Co., 157 Ill. 605; The Snead & Co. Iron Works v. Merchants Loan & Trust Co., 225 Ill. 442. But what was said by the court in Bayne v. Cinak, 320 Ill. 23, is also applicable on the question of the defendant in error’s right to enforce specific performance: “Complainants are seeldng to enforce specific performance of the contract. Whether that remedy shall be granted or not, in many cases rests in the sound discretion of the court. A contract to sell land, fairly and understandingly entered into, will be enforced as a matter of right, but where there are circumstances of misrepresentation, misapprehension or mistake which would make the enforcement of the contract oppressive or unjust, it will not be enforced. Keating v. Frint, 291 Ill. 423, and cases there cited.”

For the reasons stated, we conclude that the defendant in error is not entitled to a decree for specific performance; and the decree is therefore reversed.

Reversed.


text:
    W. E. Green, Appellee, v. P. G. Ross, Appellant.
    Gen. No. 8,342.
    Opinion filed April 22, 1930.
    Acton, Acton & Snyder and Everett L. Dalbey, for appellant.
    Lewman & Carter and Jones, McIntire & Jones, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Wm. E. Green, sued P. G. Boss, appellant, in the circuit court of Vermilion county in an action of trespass. The appellee’s cause of action is stated in the declaration consisting of one original count and four additional counts. The original count charges the appellant with assault and battery; and in the first additional count, it is alleged, that the appellant with force and arms broke in and entered the dwelling house of the appellee; and with force and a,rms seized and took divers goods and chattels of the appellee. The second additional count alleges that the appellant forcibly entered the dwelling house of the appellee and expelled him and his family from the possession, use and occupation of the same. The third additional count charges assault and battery; and the fourth additional count charges assault and battery; also charges that the appellant then and there “caused the'plaintiff to be imprisoned and detained in prison without any reasonable or probable cause whatever, for the space of, to-wit, two days, contrary to the laws of this State, and against the will of the plaintiff.”

The appellant pleaded not guilty to the declaration; he also filed two special pleas, in which he averred that he acted in self-defense; also that he entered the premises in question by leave and license of the appellee.

The trial of the case resulted in a verdict against the appellant, finding him guilty; and assessing the appellee’s damages at $3,000. Judgment was rendered by the court below on the verdict; and this appeal is prosecuted from the judgment.

A number of errors are assigned for reversal of the judgment. The evidence tends to show that the appellee was employed by the appellant, who was the agent and manager of the so-called “Thompson Farm” in Vermilion county; and that appellee in connection with his employment on the farm was given possession of a dwelling house situated on the farm. The appellee began work on the farm, which consisted of the feeding of stock and other farm work; and took possession of the house assigned to him about the 11th of December, 1928. About the beginning of March in 1929, the appellant terminated the appellee’s employment; and on the 4th of March the appellant went to the house where the appellee was living and informed him that his employment had been terminated; and that the appellant had employed another man by the name of Lewis to take appellee’s place on the farm; and that he wanted him to vacate the house in which he was living, so that Lewis could move in. The evidence is in conflict as to what was agreed upon between them at that time; and in reference to the appellee’s willingness to give up possession of the house and allowing Lewis to move in; the appellant testified that he told the appellee he would cancel certain indebtedness which he claimed the appellee owed him, if he would vacate the house immediately; and that the appellee agreed to do so. But the appellee’s version of the agreement as testified to by the appellee, is that he would move the next day if he could find a house in the adjacent town of Fithian to move into; that he went to Fithian to try and find a house, but could not find one and therefore he could not move immediately.

The evidence tends to show that on the next day, namely, March 5th, the new employee Lewis drove up to the premises still occupied by the appellee with two loads of furniture, which he wanted to move into the house; but that the appellee refused to allow Lewis to take possession of the house; Lewis informed the appellant of the appellee’s refusal; and thereupon the appellant appeared upon the scene; and went to the house occupied by the appellee and entered it; as he claims, by invitation of the appellee, which is denied by the appellee; and while in the house, and during the discussion of the question of the appellee’s right to remain there, and the appellant’s right to retake possession of the house for the new employee Lewis, that a quarrel ensued, and a fight resulted in which both parties were injured; the most severe injuries apparently having been suffered by the appellee in the altercation. It also appears that during the altercation the appellee used a hammer which he testified was one of the tools that he kept in the house; and with the hammer inflicted several injuries on the appellant. Thereafter the appellant made a complaint before a justice of the peace at Fithian, charging the appellee with an assault upon him with a deadly weapon with intent to do great bodily harm; and a warrant was issued by the justice under this complaint. After hearing the matter, the justice held the appellee to bail on the charge prepared against him by the appellant, until the grand jury could take action in the matter; and in default of bail, committed the appellee to jail under mittimus. The grand jury which afterwards convened did not find any indictment against him, and he was discharged from imprisonment.

The main controversy in the case concerned the matters in issue under the pleadings, as to whether the appellant forcibly entered the house occupied by the appellee and then assaulted and beat him; or entered the house by the invitation of the appellee; and whether or not the appellant or the appellee was aggressor in the personal altercation and fight which ensued after the appellant was in the house; and whether or not the appellant was acting in self-defense. There is a very decided conflict in the evidence and in the testimony of the appellant and the appellee, concerning these matters. All these matters involve questions of fact and also involve the determination of the credibility of all the witnesses who testified in relation thereto; and are questions primarily for the jury to determine.

A number of errors are assigned for reversal of the judgment. The substantial errors however relate to the force and effect given on the trial to the charge of false imprisonment laid in the fourth additional count of the declaration; error is also assigned on the giving or refusal of instructions.

Concerning the question of the right of the appellee to recover damages for the alleged false imprisonment, the evidence shows that the imprisonment of the appellee was under legal process and in consequence of a judicial determination that he should be held to answer to the grand jury concerning the charge preferred against the appellee. Under these conditions, the appellee had no right to recover damages for false imprisonment, unless the warrant was invalid or the arrest and detention was illegal, which is not shown by the evidence. Liogas v. Lowenguth, 215 Ill. App. 216, and cases there cited. Under the evidence showing that the appellee was imprisoned under legal process and in consequence of judicial determination, the court should have directed a verdict of not guilty on false imprisonment charge.

It may be pointed out, concerning the errors assigned on the giving of instructions for the appellee, that the 7th instruction is erroneous, in that it singles out a particular part of the evidence, and bases the rights of the parties to possession and the right of the appellant to dispossess the appellee upon this portion of the evidence. The 8th instruction which contains the statement, that if the appellant should attempt to take possession without process of law, such person in possession has the right to use whatever force may be necessary to prevent such an act, is erroneous because it leaves out the element of force in the attempt to take possession. It was error to refuse to give the 3rd instruction requested by appellant, which had reference to the charge of false imprisonment. The instruction embodies a substantially correct statement of the law, as hereinbefore cited, and was proper in view of the evidence in the case.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Frank Howse, Appellant, v. County of Shelby et al., Appellees.
    Gen. No. 8,398.
    Opinion filed April 22, 1930.
    R. W. Adams and Geo. B. Rhoads, for appellant.
    Eugene Bland, State’s Attorney, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, People ex rel. Frank Howse filed a petition in the circuit court of Shelby county for a writ of mandamus directed to the board of supervisors of Shelby county, commanding them that they forthwith proceed to take the lawful steps and do the lawful acts necessary to allow and grant the application of the petitioner to provide for and pay him the relief provided for in the act for the relief of the blind, chapter 23, If 109 et seq., Cahill’s Revised Statutes 1929. A demurrer was filed to the petition and sustained by the court; and the petition was dimisssed. This appeal is prosecuted from the order of the court sustaining the demurrer and dismissing the petition.

Section 1 of the act referred to provides, that “It is lawful for and obligatory upon each county of this State to contribute such sums of money as are hereinafter prescribed, from the charity or general funds of said county, toward the support of each blind person who may come within the provisions of this Act”; and section 2 of the Act provides that: “All male persons over 21 years and all female persons over 18 years who are declared to be blind in the manner hereinafter set forth, and who come within the provisions of this Act, shall receive as a benefit,” etc. It is clear that under section 2 of the Act referred to, "only such persons are entitled to contribution from the county, who are declared to be blind in the manner set forth in the Act. The Act requires that the supervisors shall appoint a physician whose official title shall be “examiner of the blind”; and that the application of the person claiming that he is entitled to contribution from the county as a blind person, shall be referred to this “examiner of the blind” appointed by the board; and that this examiner shall indorse on the application a certificate to each applicant, showing whether he or she is blind or not. Under section 8 of the act, the duty of supervisors to provide for the payment of a contribution is limited to the persons who have complied with the provisions of the Act. There is no averment in the petition that the application of the petitioner was referred to the physician who was appointed “examiner of the blind” by the supervisors, nor that this examiner indorsed on the application a certificate showing that the applicant was blind; the Act also requires that the persons claiming the contribution of money from the county shall be blind; not partially blind or industrially blind; and that the certificate of the examiner shall certify that they are blind.

We are of the opinion therefore that the petition did not contain the necessary averments of fact to show that the petitioner had complied with the requirements of the statute and was entitled to the contributions of money from the county; and that the court did not err in sustaining the demurrer to the petition and dismissing the same.

For the reasons stated the judgment is affirmed.

Judgment affirmed.


text:
    A. M. Hunsaker, Plaintiff in Error, v. John Watts, Defendant in Error.
    Gen. No. 8,406.

      Opinion filed April 22, 1930.
    Albert E. Isley, for plaintiff in error.
    Wm. T. Hollenbeck and H. J. Buxbaum, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the plaintiff in error, A. M. Hunsaker, sued out a writ of error to review the validity of the rendition of a judgment by default against him in the circuit court of Clark county. The judgment was rendered for the sum of $1,500 in favor of the defendant in error, John Watts.

It is sufficient to say concerning the questions raised for reversal of the judgment, that the record of proceedings which resulted in the judgment does not show that the plaintiff in error was served with process; nor that any proof was made to the court that a summons had been legally served on the plaintiff in error at least ten days before the term at which the judgment was rendered, as required by the statute. There is a recital in the transcript of record concerning the default, certified by the clerk as a part of the record of proceedings, which was apparently copied from the minutes of the presiding judge oí the court. The recital is as follows: “Defendants personally served —no plea on file by defendant A. M. Hunsaker and default is entered against him.” The jurisdictional requisite of service is not a matter of which a court can take judicial notice; but proof of such service must be made to the court before a default can be legally ordered and a judgment rendered against a defendant. The filing of a summons in the office of the clerk of the court with the return of the sheriff showing service, after the final adjournment of the term at which the judgment was rendered cannot be regarded as proof of service, nor as á part of the proceedings of the court for the rendition of the judgment. The mere filing of the summons as above stated does not supply the jurisdictional requisite referred to.

The matter under consideration has been repeatedly passed upon, and is well settled. In Wilson v. Greathouse, 1 Scam. 174, the court makes the following comment concerning it: “It is essential to the exercise of all jurisdictions rendering judgments or decrees affecting the persons or property of individuals where the proceeding is by summons directed to the defendants, that they should have indisputable evidence before them that the party to be affected by their judgments or decrees is regularly before them, otherwise their proceedings are coram non judice; consequently irregular and void.” In Belingall v. Gear, 3 Scam. 575, the court points out that: “Before a court is authorized to render a judgment by default, it must appear clearly and affirmatively, by the return of the officer charged by law with the service of the process, that the defendant has been regularly served.” And in Vairin v. Edmonson, 5 Gilm. 270, the court held: “To sustain a judgment by default, the record ought affirmatively to show that the defendant was regularly served with process.” To the same effect is Law v. Grommes, 158 Ill. 492.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    J. G. Campbell, Appellee, v. John Banks, Appellant.
    Gen. No, 8,411.
    Opinion filed April 22, 1930.
    O’Harra, O’Harra & O’Harra, for appellant.
    C. W. Warner and Mack & Mack, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment for $90, which was rendered by the circuit court of Hancock county. The judgment is based upon the verdict of the jury which the court directed the jury to render; and the legal propriety of the directed verdict is the principal question involved in this appeal.

The record discloses the following facts; namely, that the appellant John Banks, who is an undertaker, was a tenant of the appellee J. G-. Campbell; and a tenant from month to month under a verbal leasing of a part of a two-story brick building in La Harpe owned by the appellee, which he used and occupied to conduct his business.' The part occupied by Mm, was the west room in the east half of the building known as the “Campbell Block.” In this room there were two storerooms; and a hall or lodge room above the storerooms, which were rented by the appellee to other tenants. The appellant agreed to pay a rental of $30 per month; and further agreed that he would do his own papering and painting and decorating; and put the room occupied by Mm in proper condition for his business. He occupied the room mentioned, from the 1st of September, 1927, until the first week of October, 1928; and paid the rent accruing to the appellee therefor until July 1st, 1928. After he had moved in, he discovered that the roof of the building was in a leaky condition; that when it rained, water would run down into the storeroom occupied by him from the leaks in the roof; and some of the goods and chattels which he had stored in the room for the purpose of his business as undertaker were damaged thereby.

The appellant’s testimony concerning the matters referred to is as follows:

“Q. What happened in that storeroom while you were occupying it?
A. Every time it rained there were 15 to 20 places where the water run in. If I went home at night while it was raining, I could figure on my stuff getting damaged. I had to move it out in the front room to keep it from getting damaged. I have had buckets and tubs and went upstairs and had buckets and tubs up there trying to keep it from coming through and we have tried to sweep it out the back door.
Q. Did that condition grow better or worse?
A. Worse if anytMng.
Q. "What effect did that water coming through the roof have on this decorating that you had done ?
A. It let the paper come off that I pnt on the ceiling for abont 18 feet from the back, it came off in patches, to abont 12 feet from the front, and practically half of the side walls came off. ’ ’
In reference to the damages resulting to the appellant, he testified as follows:
“Q. Mr. Banks, do you know what it cost you to do this work in this room that you rented?
A. I think I spent around $130.00.
Q. That was in money that you actually paid out aside from your own work then in addition to the damage ?
A. Yes sir.
Q. . . . Tell the jury what else if anything that you had in there that was injured?
A. I had a lowering device.
Q. To lower caskets ?
A. Yes sir.
Q. What effect did this rain have on this?
A. Cot it wet and rusted it, and I had to have it refinished.
Q. What did it cost?
A. For redyeing and for evergreen was $180.
Q. Where was that done?
A. In Peoria.
Q. What else if anything?
A. Well the handles on several caskets rusted and had to be refinished. I polished all but one myself.
Q. Where was the other one repolished?
A. I took it to an embalming company in Burlington. . . .
Q. Yon stated that one bill you had to pay for putting this stuff in order was $180.
A. Yes sir.
Q. Was that necessary in order to put it in shape?
A. Tes sir.”

At the close of all the evidence, the appellee made a motion to strike out all evidence on behalf of the appellant as to the claim of set-off or recoupment; and all evidence relating to the condition of the roof ; or the roof leaking. The motion to strike the evidence referred to was sustained by the court; and thereupon the court, on a further motion by appellee, directed the jury to return a verdict for the appellee and assess his damages at $90, which was done.

Under the undisputed facts disclosed by the record in this case, the action of the court in striking the evidence referred to, and directing the jury to return the verdict mentioned, was erroneous. The leasing in this case was only for a part of the building in question; that is to say, for one of the storerooms in the building; and therefore the general rule, that in the absence of a covenant by the lessor to repair, it is incumbent upon the lessee to keep the leased premises in repair, does not apply. The rule of law which is applicable to the facts in this case, is tersely stated in Johns v. Eichelberger, 109 Ill. App. 35, namely, “where the landlord leases to a tenant a single room in a building, retaining control over the other parts including the roof, it is the duty of the landlord to keep the roof in repair so that the tenant may not be injured in his holding. ” In 1 Taylor on Landlord and Tenant, sec. 175a, this rule is stated to be as follows: “A demise of parcels out of a building leaves the responsibility for what is not demised upon the landlord. The roof, halls and passages not demised, chimneys, eaves, and outside walls, remain in the landlord’s charge.” See also Fairmont Lodge v. Tilton, 122 Ill. App. 636; Trego v. Rubovits, 178 Ill. App. 127; Burlingham v. Gordon, 201 Ill. App. 474; Trower v. Wehner, 75 Ill. App. 655. It is well settled also that in case the landlord fails to make repairs in violation of his duty, the tenant may occupy the premises, without repairs being made, and recoup his damages in an action for rent. Oppenheimer v. Szulerecki, 297 Ill. 81; Cromwell v. Allen, 151 Ill. App. 404; Mitchell v. Plaut, 31 Ill. App. 148; Glickauf v. Maurer, 75 Ill. 289; Bernauer v. Hartman Steel Co., 33 Ill. App. 491.

Concerning the errors assigned upon the ruling of the court in reference to the admission or rejection of the evidence, it may be said that the appellee should have been allowed to answer the question propounded to him on cross-examination concerning what knowledge he had, if any, that the roof was leaking; and whether or not he had been notified about the leaks in the roof. The testimony of the appellant, which was stricken out by the court, was evidence tending to show neglect of the appellee’s duty to make the necessary repairs to stop the leakage in the roof in question; and also tended to show that the personal property of the appellant in the storeroom occupied by him was damaged as the result of the appellee’s neglect of duty. It also tended to show that damages were sustained by the appellant in consequence thereof. The rule concerning the measure of damages applicable to injury to the personal property under the circumstances disclosed by the record, is the amount necessarily expended in having the property repaired; that is to say, the necessary cost of repair. The question of agency is not involved in the matters referred to.

For the errors indicated, the judgment is reversed and cause remanded.

Reversed and remanded.