text:
    General Exchange Insurance Corporation, Appellant, v. Janetta McRoy, Appellee.
    Gen. No. 8,644.
    Heard in this court at the April term, 1932.
    Opinion filed October 17, 1932.
    Rehearing denied, opinion modified, refiled and decision adhered to January 3, 1933.

      William F. Smith, for appellant.
    Lemon & Jordan, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is a suit by appellee brought against appellant in the circuit court of DeWitt county, to recover upon an insurance policy the value of an automobile claimed to have been stolen from appellee, and its loss by theft, covered by the policy.

There were no questions raised upon the policy and the instructions were substantially free from error.

There was' a verdict and judgment in favor of appellee and against appellant in the sum of $500, and appellant has brought the record by appeal to this court for review.

The only substantial errors pointed out are in the court’s rulings upon the admission of evidence. Appellee testified: I last saw the car at Jacksonville, Illinois, between eleven and twelve o’clock — ten-thirty to twelve in the morning, the twenty-sixth of August, 1929. I think it was Tuesday, or Wednesday, but I won’t be sure. I had gone from here to Jacksonville, Illinois, and was in the car until I parked it. There was no one with me when I went over there to Jacksonville. When I got there, it seems to me, I put the car. in a vacant lot, about a block or block and a half away on the first street south. There were two or three other cars parked there. It was a block or a block and a half from the street that goes around the square. I think I parked a block or a block and a half south of there. I think I have found the place since that time; it was not a whole block that was vacant; it was a space, I imagine, about as big as this court room, or a half bigger than the court room — about a half block, I imagine. There were buildings on the side of the block. This was not a paid parking place, I just drove up and parked.

From Jacksonville appellee drove home to Clinton with her daughter, in her daughter’s car and left her own car parked in Jacksonville. Two days later, appellee was in Jacksonville and did not find her car at the place where she had parked it. She went to the police station but did not find the chief of police in and appellee testifies: We went down there and they parked in front, and I went in, and there were some fellows sitting by the desk, in the police station. They were not uniformed. I asked for the chief of police, and they said he wasn’t in. I asked them about the car — if they had a Hudson car; that I had lost mine; that I had parked it there and couldn’t find it, and I thought maybe somebody had reported it; that I couldn’t find it, and I stood there and they went on talking to each other and ignored me and I backed out. None of those .persons had on a uniform. That was about ten or eleven o’clock in the morning. I did not- see anyone else there. I came home and wrote them a letter — the police a letter. I addressed it “Chief of Police, Jacksonville, Illinois,” and I heard nothing from them. I stamped the letter and mailed it at the Illinois Central depot; I did not hear from them. In that letter I asked if they had any report in regard to that car I talked to them about a few days before — the Hudson sedan — and gave the serial number and my license number, and if they did, please let me know and put in a self-addressed and stamped envelope. I never heard from them.

Appellee further testified: “I don’t think I parked the car as late as four in the afternoon. I am pretty sure.” The court refused to permit appellee to answer the following question, on cross-examination: “Did you tell D. D. Lucier on the 18th of September, 1929, at your home here in the City of Clinton, that you parked your car at 4 p. m., August 26th, at Jacksonville?” Appellee further testified: Yes, I am almost positive I locked the door of my car, but I didn’t lock , the ignition. The key to that door is out at the house. The key to the ignition is out at the house. I did not tell the adjuster on the day that he was at my home that the ignition was locked but I had since lost the key. I told one of them — I don’t know which one — that I locked either the door or the ignition but I did not know which one, and I had lost the keys in moving, but had found them since. I did tell the adjuster that I had lost the key when I was moving. I wouldn’t swear about locking the ignition, but I am positive I locked the door. Yes, when I found the car was missing I went to the police station and reported the loss to the station. I didn’t come back home without telling anyone.

For appellant, Harold Elliott, desk sergeant of the police station at Jacksonville, testified: I was desk sergeant for the police headquarters on August 26, 1929. The police headquarters are situated there straight down from the northwest corner of the square north two short blocks. I have walked and gone about the business section and residence section of town during the past five years. There was not a public park1 ing space there within a block of town in any direction on August 26,1929. There has not been a public parking space there within five blocks in any direction during the past four years. No, sir; not a lot. There • is public parking on the streets and around the square. We keep a record at police headquarters of the complaints of automobiles made by persons. We keep such a record and did keep such a record during the month of August, 1929. I have searched through all of our records and for the month of August, 1929, to ascertain if there was a complaint made of the theft of a Hudson sedan automobile at any time during the month of August, 1929, by Janetta McBoy. There was not such a complaint made. I have the regular day records with me. That is night, too. That is the regular record we keep. Defendant’s Exhibit “C” is the record that we keep of reports of thefts of automobiles which we kept during the month of August, 1929. Those are the original entries made in that record; three of us made them. I made part of them. There are three shifts, and I make them when I am on duty. When I am not on duty the other sergeants make them. Beginning at page 173, and continuing to page 178 are a part of the regular entries of that record. They are made in the regular course of business and they are true and correct. At that time we-kept a record of letters received into the office concerning the loss on theft of automobiles by filing them away. When we receive those letters we make reports or records in this book from the letters at that time on stolen stuff or criminal cases. We made such records of such letters during the month of August, 1929. I examined the letters and files and records in our office to determine whether or not a letter was received during the month of August, 1929, from Janetta MeRoy of Clinton, Illinois, complaining of the theft of a Hudson sedan automobile, but I found none. If there had been such a letter received at our office that would have been copied into this book. A letter we always write in this book, but not postal cards. We keep a record of those on stolen cars. Appellant offered these police records in evidence, but upon objection that they were held incompetent and immaterial, the court excluded them.

Appellant offered in evidence a written statement, made by appellee in the presence of two witnesses, on September 18, 1929, in which appellee states, over her signature: “I parked it in a public parking place where parking is free. I cannot describe the exact location except that it seemed to me about 1 block from the business section. I parked it there about ,4:00 P. M. August 26th intending to return for the car in a few days. Two days later I drove to Jacksonville with one of my roomers, E. McCadden, to get my car ánd discovered it had been stolen. The ignition was locked but I have since lost the key. I didn’t know what happened to the car and returned to Clinton, Ill., about 2 days later I returned to Jacksonville, Ill. and interviewed the police who gave me no co-operation, nor did they take the numbers. I had previously written to the Chief of Police at Jacksonville, Ill. I have no idea who took the car and I have no creditors.” Appellee further stated in the statement over her signature: “Was Car Door Locked? No Ignition? Yes Transmission, No lock Wheel, No lock Were Police Notified, Yes What Station? Jacksonville, Ill. When (Date and Hour) ? 8-28-29 By Whom? Myself How? In person” This statement the court excluded upon the objection made that it was incompetent and immaterial.

It seemed to be the theory of appellee that she had had a car stolen, as a matter of course, and that it made no difference whether she had parked the car in a public parking place or upon someone’s private lot, either at 12, noon, or at 4 o’clock in the afternoon, or whether she had locked either the door or the ignition to the car, or neither. Such is not the law.

In Smith v. Dennison, 101 Ill. 531, 539, the court held: “Contradictory statements'by a witness as to immaterial matters do tend to cast suspicion upon the testimony of a witness, but do not authorize its entire rejection, where he is corroborated by another witness, and not contradicted by any evidence in the case. ’ ’

And in Day v. Sampsell, 148 Ill. App. 88, 92, the court held: “In Craig v. Rohrer, 63 Ill. 325, the court, in its criticism of an instruction held to be erroneous, say: ‘A recognized mode of impeaching the credit of a witness is by proof that he has made statements ont of court contrary'to what he has testified at the trial. Such proof has a direct tendency to impeach either the veracity or the memory of the witness. There is no legal warrant requiring as conditions to affect the credibility of the witness, that the testimony so contradicted should be material to the issue and intentionally false, as asserted by the instructions. ’ Kerr v. Hodge, 39 Ill. App. 546.”

The true rule is expressed in People v. Halpin, 276 Ill. 363, 376: “The cross-examination of a witness as to his occupation, associations and conduct, and as to other things immaterial to the issue, for the purpose of determining his credibility, is a matter to a great extent in the discretion of the court and does not constitute error unless the discretion is abused.”

As to the particular items of evidence in dispute, as to Avhether appellee parked her car in a public parking place within a block or a block and a half from the square, or whether she parked the car on a private lot and was a trespasser; whether when she parked the car the door was locked or left unlocked, and Avhether the ignition was locked or not; whether she parked the car between 10:30 in the forenoon of the day in question or not until 4 o’clock in the afternoon of that day, and Avhether appellee ever wrote a letter to the chief of police of Jacksonville notifying him of the loss of the car, were all questions material to the issue of the theft of the car and the rulings of the court, as cited, constituted reversible error.

It follows that the verdict of the jury and the judgment of the circuit ■ court of DeWitt county are reversed and the cause remanded.

Reversed and remanded.

On petition for rehearing opinion modified and decision adhered to.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Lizzie Farrow, Defendant in Error, v. The Eldred Drainage and Levee District, Plaintiff in Error.
    Gen. No. 8,444.

      Heard in this court at the October term, 1931.
    Opinion filed November 9, 1932.
    Rehearing denied January 4, 1933.
    Beal B. Smith, E. J. Coyle, F. A. Whiteside, Gillespie, Burke & Gillespie and Hugh J. Dobbs, for plaintiff in error.
    P. M. Hamilton, A. B. Johnson and Sumner & Reardon, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case a writ of error is prosecuted to review a judgment of the circuit court of Greene county awarding the plaintiff in the case, Lizzie Farrow, the sum of $3,000 damages for alleged injury to crops, in certain years, upon the real estate of the plaintiff which is located adjacent to a levee and drainage ditch constructed and maintained by the defendant in the case, The Eldred Drainage and Levee District. The suit was brought jointly by the plaintiff and her husband, Adellis Farrow, to recover for injuries to the growing crop upon the real estate referred to. Later, during the progress of the trial of the case, Adellis Farrow, by leave of court, was withdrawn as a party plaintiff from the case and the case proceeded to trial with Lizzie Farrow as sole plaintiff. The declaration charges that Eldred Drainage and Levee District was duly organized as- a corporation for the purpose of constructing drains and levees, and that while the plaintiff with her husband were the owners of certain real estate, the drainage district did dig and open a ditch and construct a levee adjoining said real estate which was adjacent thereto, said ditch and levee running north and south along the western boundary of said real’estate; and that the drainage district in constructing said ditch and levee caused the dirt taken from the ditch so constructed to be thrown upon the west side of said ditch, forming a levee on the west side of said ditch and leaving the said land of the plaintiff unprotected from water overflowing from said ditch so constructed.

The declaration further avers that prior to the time said ditch was so constructed by the said defendant as aforesaid, a certain natural watercourse known as Bushnell Creek flowed in a general southwesterly direction at a distance of about one and one-half miles south of the south boundary of said real estate, and the, said defendant in constructing its said ditch and levees as aforesaid wrongfully closed the channel of the aforesaid natural watercourse and caused the water therefrom to flow in a westerly and northerly direction through the said ditch so constructed along the western boundary of the said lands of the plaintiffs ; that prior to the time said ditch and levee were constructed as aforesaid a certain natural watercourse known as Hurricane Creek flowed in a general southwesterly direction about one-half of a mile south of said south boundary line of the aforesaid lands of the plaintiffs, and the said defendant in constructing its said ditch and levees as aforesaid adjoining the said real estate of the plaintiffs on the west, wrongfully closed the channel of the aforesaid natural watercourse called Hurricane Creek and caused the water therefrom to flow north along and adjoining the west boundary of said real estate of the plaintiffs and through the said ditch so constructéd; and that prior to the time said ditch and levee were constructed as aforesaid a certain natural watercourse known as Schafer Creek flowed in a general westerly direction near the northern boundary of the aforesaid real estate of the plaintiffs, and the defendant in constructing its said ditch and levees as aforesaid adjoining the western boundary of the said real estate of the plaintiffs wrongfully closed the channel of the aforesaid natural watercourse called Schafer Creek and caused the water therefrom to flow north and through the ditch so constructed',- that prior to the time said ditch and levee were constructed as aforesaid the said real estate of the plaintiffs drained to the south and west and that the surface water and rainfall draining from the real estate of the plaintiffs had an unobstructed flow and drained from the land of the plaintiffs to the west and southwest.

And the declaration avers that the defendant failed to dig’ said ditch adjoining’ the real estate of the plaintiffs of sufficient size, slope and capacity to carry off the water from the aforesaid natural watercourses together with the surface water naturally draining off the real estate of the plaintiffs during years of heavy rainfall, thereby causing said ditch intermittently and recurrently to overflow said real estate of said plaintiffs; and that by reason of the turning of said natural watercourses into said ditch, and also by reason of the said defendant failing to construct said ditch past the real estate of the plaintiffs of sufficient size, slope and capacity to carry off the water from said watercourses and the surface water naturally draining from the real estate of the plaintiffs into said ditch and by reason of placing the dirt from said ditch on the west side thereof instead of on the east side, thus leaving the real estate of the plaintiffs unprotected from said water, during the season of heavy rainfall in the year 1923 a part of the bank of said ditch caved in and said ditch overflowed in the summer of 1923 and covered a part of said real estate of the ■plaintiffs on which they had certain crops of grain then and there growing; and the plaintiffs aver that as a result of said overflow from said ditch upon said land of the plaintiffs as aforesaid, the water greatly injured a large part of said crops and totally destroyed a large part of said crops, to the damage of the plaintiffs of $6,000, therefore they bring their suit, etc.

In the second count of the declaration, the plaintiffs’ right of recovery is based upon the negligence of the drainage district in the maintenance of the ditch and the declaration charges that after the construction of the ditch that “it became and was the duty of the defendant to keep said ditch in repair and to keep it dredged and cleaned out and open and to prevent it from filling up and to keep said ditch in such repair, condition, size and capacity to carry off the waters from said Bushnell Creek, Hurricane Creek and Schafer Creek together with the surface water naturally draining off of the said real estate of said plaintiffs: Yet, the defendant did not regard its duty, but on the contrary wrongfully and negligently permitted said ditch to become and remain out of repair and did not keep said ditch in repair and open and in such condition, size and capacity to carry off said water and wrongfully and negligently allowed said ditch to fill up as aforesaid to such an extent that said ditch did not have sufficient size and capacity to carry off the said waters from said Bushnell Creek, Hurricane Creek and Schafer Creek together with the surface water naturally draining off of the said real estate of the plaintiffs; by reason of said defendant wrongfully failing and neglecting to keep said ditch in repair and open and dredged out and wrongfully allowing it to fill up, the water in said ditch, from the aforesaid Creeks, and said surface water, overflowed in the summer of the year 1923 and said overflow waters covered a part of the said real estate of the plaintiffs on which they had certain crops of grain then and there growing, and the plaintiffs aver that as a result of said overflow from said ditch upon their said real estate the water greatly injured a large part of said crops and totally destroyed a large part of their said crops, to the damage of the plaintiffs of Six Thousand ($6,000) Dollars.”

The basis of recovery in the third, fifth, seventh and ninth counts of the declaration are the same, namely, improper construction of the ditch in question, and the fourth, sixth, eig’hth and tenth counts allege a right of recovery resulting from a failure of the drainage district to keep the ditch in proper repair and condition to carry the flow of the water.

All the counts in the declaration aver a right of recovery of damages from an overflow by the waters coming from the ditch in question which injured growing crops that were being raised on the land in question. A bill of particulars was filed with the declaration giving the number of acres of corn alleged to have been damaged and lost in the different years covered by the declaration, namely, 1923, 1924, 1925 and 1926; also the number of acres of corn and alfalfa claimed to have been lost or damaged in the year 1927; and averring that the damages occurred in September 1923, October 1924, September 1925, September 1926 and September 1927.

In defense, the drainage district filed the general issue and a number of special pleas. The court sustained a demurrer to the second, third, fourth, fifth, sixth, seventh, eighth and tenth special pleas. Error is assigned and argued in reference to the court’s . action in sustaining the demurrer to the second, eighth and tenth special pleas; and error is also assigned for sustaining the demurrer to the fifth special plea alleging a former recovery.

The Eldred Drainage and Levee District, plaintiff in error herein, states its contention concerning the declaration and the action of the court in sustaining the demurrer to certain special pleas mentioned, as follows:

“This suit was instituted in the name of Lizzie Farrow and her husband, Adellis Farrow, as joint plaintiffs, and the declaration, consisting of ten counts, alleged that the plaintiff, Lizzie Farrow, was the owner in fee simple of the real estate in question, and that the plaintiff, Adellis Farrow, as. her husband, resided with her upon said real estate and farmed the same, and that the crops grown thereon during all relevant times were owned jointly by said plaintiffs.
“The plaintiff, Adellis Farrow, was dismissed from the suit at the conclusion of all the evidence, but. .the allegations contained in the declaration respecting his joint ownership with his wife, of the crops alleged to have been damaged, were not stricken and the case went to the jury with those averments remaining in the declaration.
“The First Count of the declaration charged substantially, aside from the joint ownership of the crops, that the premises in question were situated outside of the territory of the Eldred Drainage and Levee District (Plaintiff in Error); that said district, prior to the first day of February, 1923, was organized as a corporation for the purpose of constructing drains and levees, and while the plaintiff was the owner of said real estate the defendant digged and opened a ditch and constructed a levee adjoining said real estate and adjacent thereto which ditch and levee ran North and South along the Western boundary of said real estate, and that the defendant in constructing said ditch and levee caused the dirt taken from it to be thrown upon the West side of said ditch leaving the lands of the plaintiff unprotected from water overflowing therefrom; that prior to the construction of said ditch a certain natural watercourse known as Bushnell Creek flowed in a general Southwesterly direction at a distance of about one and one-half miles South of the Southern boundary of. said real estate, and that the defendant in constructing its said ditch and levees closed the channel of the said natural watercourse and caused the water therefrom to flow in a Westerly and Northerly direction through the said ditch so constructed along the Western boundary of the plaintiff’s lands; that prior to the construction of said ditch and levee a certain natural watercourse known as Hurricane Creek flowed in a general Southwesterly direction about one-half mile South of said South boundary lines of the plaintiff’s lands, and the defendant in constructing its said ditch and levees adjoining the real estate of the plaintiff on the West closed the channel of the said natural watercourse called Hurricane Creek and caused the water therefrom to flow North along and adjoining the Western boundary of said real estate of the plaintiff and through the said ditch so constructed; that prior to the construction of said ditch and levee a certain natural watercourse known as Schafer Creek flowed in a general Westerly direction near the Northern boundary .of said real estate of the plaintiff, and the defendant in constructing its said ditch and levees as aforesaid adjoining the Western boundary of said real estate closed the channel of the said natural watercourse called Schafer Creek and caused the water therefrom to flow North and through the ditch so constructed; that prior to the construction of said ditch and levee the plaintiff’s real estate drained to the South and West and the surface water and rainfall drainage from it had an unobstructed flow and drained from the lands of the plaintiff to the West and Southwest; that the defendant failed to dig said ditch adjoining* the plaintiff’s real estate of sufficient size, slope and capacity to carry off the water from the said natural watercourses, together with the surface water naturally draining off plaintiff’s real estate during the years of heavy rainfall, thereby causing* said ditch intermittently and recurrently to overflow said plaintiff’s real estate, and that by reason of the turning of said natural watercourses into said ditch, and also by reason of the said defendant failing* to construct said ditch past the plaintiff’s real estate of sufficient size, slope and capacity to carry off the water from said watercourses and the surface water naturally draining* from the plaintiff’s real estate into said ditch and by reason of placing the dirt from said ditch on the West side thereof instead of on the East side, thus leaving plaintiff’s real estate unprotected from said water during the season of heavy rainfall in the year 1923, a part of the bank of said ditch caved in and said ditch overflowed in the summer of 1923, and covered a part of plaintiff’s real estate on which she had certain crops of grain then and there growing, and the plaintiff avers that as a result of said flow from said ditch upon her said land the water greatly injured a large part of said crops and totally destroyed a large part thereof to her damage in the sum of Six Thousand ($6,000.00) Dollars.
“The Second Count of said declaration similarly sets forth the ownership of said real estate and crops by the plaintiffs; the organization of said defendant for the purpose of constructing* drains and levees; the digging* and opening of a ditch and the constructing of a levee adjoining said real estate; the location of Bushnell, Hurricane and Schafer Creeks and the closing of their respective channels, and then said Second Count charges that in the year 1923, and each year thereafter, the banks of a part of said ditch constructed "by the defendant caved in and said ditch thereby became out of repair and partly filled with sediment, clay, dirt, brush, driftwood, logs and willows which caused the water in said ditch intermittently and recurrently to overflow the said real estate of said plaintiff during heavy rainfalls; that it, thereupon, became and was the duty of said defendant to keep said ditch in repair and to keep it dredged and cleaned out and open and to prevent it from filling up and to keep it in such repair, condition, size and capacity to carry off the waters from the three creeks, together with the surface water naturally draining off said real estate, and that the defendant, disregarding its duty, negligently permitted said ditch to become and remain out of repair and did not keep the same in repair and open, and in such condition, size and capacity to carry off said water, and negligently allowed said ditch to fill up to such an extent that it did not have sufficient size and capacity to carry off the waters from the three creeks mentioned, together with the surface water naturally draining off plaintiff’s real estate, and that by reason of the said defendant failing and neglecting to keep the ditch in repair and open and dredged out and by allowing it to fill up the water in said ditch from the said creeks and said surface water overflowed in the Summer of the year 1923, and said overflow waters covered a part of plaintiff’s real estate on which she had certain crops of grain growing and as a result of said overflow upon said real estate the water greatly injured a large part of said crops and totally destroyed a large part of the same, all to the damage of the plaintiff.
“The Third, Fifth, Seventh and Ninth Counts of said declaration are in all respects the same as the First Count with the exception of allegations in each of them, respectively, covering damages to crops during the years 1924, 1925, 1926 and 1927. The Fourth, Sixth, Eighth and Tenth Counts are in all respects the same as the Second Count with the exception of allegations of similar damages occurring, respectively, in the years 1924,1925,1926 and 1927.
“It should here be noted that the First and Alternate Counts of the declaration alleged damages arising out of the original construction of the ditch and levee, while the Second and Alternate Counts alleged damages arising out of the negligent failure of the plaintiff in error to maintain the ditch.
“The plaintiff in error filed a plea of not guilty to the several counts of the declaration and nine special pleas. A general demurrer was sustained to the Second, Fifth, Sixth, Seventh, Eighth and Tenth Special Pleas.
“The Second plea tuas a plea of the Statute of Limitations, alleging that the work done by the defendant complained of in the First and Third Counts of the declaration in the construction of the levees and the digging and opening of ditches and the changing of the natural watercourses of Bushnell, Hurricane and Schafer Creeks was a lawful and permanent improvement constructed by the defendant under due legal authority and in strict accordance with plans, profiles and specifications which had been approved by the County Court of Greene County, Illinois, at the time said Court entered an order organizing the defendant, as a Drainage District, and under the provisions of an Act of the General Assembly, entitled: ‘An Act to Provide for the Construction, Reparation and Protection of drains, ditches and levees across the lands of others' for agricultural, sanitary and mining purposes, and to provide for the organization of Drainage Districts, ’ approved May 29, 1879; that said work was permanent in character, and that if any damage to the plaintiff’s lands resulted from the digging and opening of said ditch, and the construction of said levees, and the diverting and changing of the waters of Bushliell Creek, Hurricane Creek and Schafer Creek, as alleged in said declaration, it occurred upon the completion of said work and the turning into said ditch of the natural watercourses above mentioned, and that the work of digging and opening said ditch, constructing said levees and diverting the waters of said creeks was all done by the defendant in the year 1910, and if any damage was occasioned thereby to any of the property alleged to be owned by the plaintiff it was caused and occasioned at the time said work was completed, and the waters from said creeks diverted and not since that time.
“The plea further sets out Section 16, of‘Chapter 83, of the Revised Statute, being the Statute of Limitations, limiting the time of recovery of damages for an injury to property, real or personal, and avers that the cause of action to plaintiff for the work done by said district occurred more than five (5) years before the commencement of said suit.
“The Fifth plea was a plea of former recovery alleging that the plaintiff had theretofore impleaded the defendant in the Circuit Court of Greene County at the February Term, 1920, in a certain plea of trespass on the case to the damage of the plaintiff of Twenty-Five Hundred ($2500.00) Dollars, for the very same wrongs and injuries as in said declaration mentioned, and such proceedings were, thereupon, had, that after-wards at the September term of said Circuit Court in the year 1921, by the consideration and judgment of the same Court the said plaintiff recovered against this defendant the sum of Five Hundred Seventy-Five ($575.00) D.ollars for her damages, as well as the costs of the plaintiff in that behalf whereof the defendant was convicted, etc., and that said judgment was by the defendant afterwards fully paid and satisfied.
“The Eighth plea alleged the construction of the ditch, the building of the levee and the changing of the watercourse of said creeks in the year 1910, and not since that time; that all of said work was a lawful permanent public work done in a lawful manner under due legal authority and permanent in character, and that said ditch so dug in 1910 has not become filled with sediment, clay, dirt, brush, driftwood, logs, and willows to any greater extent than it reasonably would have been expected to fill at the time said ditch was constructed, and that if any damage was occasioned to plaintiff’s property by reason of said construction, or the reasonable filling of said ditch in a manner to be foreseen as aforesaid, that said damage was a permanent damage to the land of the plaintiff, and that said damage should have been recovered by the plaintiff against the defendant within five (5) years next after said ditch was opened, and this plea proceeds to pray the benefit of the Statute of Limitations.
“The Ninth plea alleged that the plaintiff, Lizzie Farrow, was not on the first day of February, 1923, or since that date, the owner of the premises described in the declaration. Issue was joined upon this plea.
“The Tenth plea to the first, third, seventh and ninth counts of the declaration alleged that the work done by the defendant in constructing said levee, digging and opening said ditch and changing the natural watercourse of Bushnell, Hurricane and Schafer Creeks was a lawful permanent improvement constructed by the defendant under due legal authority and in strict accordance with the plans, profiles and specifications which had been approved by the' County -Court of Q-reene County, Illinois, and was permanent in character, and that if any damage to the lands alleged to be owned by the said plaintiff resulted from the digging and opening of said ditch, the construction of said levee, the diverting and changing of the waters of said creeks, it occurred upon the completion of said work and the turning into said ditch of said natural watercourses above mentioned, which thé defendant avers was all done in the year 1910, and that the waters from said creeks overflowed said ditch in the year 1915, and thereby caused damage to the lands and crops of the plaintiff and that if plaintiff had a cause of action for digging said ditch and diverting said creeks and the overflow of said ditch, it occurred in the year 1915. The plea then quotes the Statute of Limitations as to the recovery of damages for an injury to real and personal property and invokes the benefit of that statute as against the action of the plaintiff.
“It is the contention of the plaintiff in error that the trial court erred in sustaining demurrers to its second, eighth and tenth special pleas on the ground that the allegations therein contained properly shoiu that the injury for which recovery is sought in the first and alternate counts of the declaration toas a permanent injury, and that it occurred more than five years prior to the institution of the suit. It further contends that error was committed in sustaining the demurrer to its fifth special plea which properly alleges a former recovery for the same permanent injury for which plaintiff in error is again seeking to recover damages in this action.”

The second special plea of the statute of limitations was pleaded as a ■ matter of defense to the first and third counts of the declaration, which allege improper construction of the levees and ditches of the drainage district. The plea avers that the construction of the levees and digging of the ditches, was a lawfid and permanent improvement constructed by the drainage district under due legal authority and in accordance with the plans, profiles and specifications which had been approved by the county court of Greene county, and under the act of the General Assembly, providing for the construction, reparation and protection of drainage ditches and levees across the lands of others for agricultural, sanitary and mining purposes; and that said work ivas permanent in character; and that therefore if any damage to the land alleged to be owned by the plaintiff resulted from the digging and opening of the ditch referred to and the construction of the levee, in connection therewith, as averred in the declaration, that it occurred upon the completion of said work; and that the work of digging and opening-said ditch and constructing the levee and diverting the water of the creeks mentioned, was all done by the defendant in the year 1910; and that therefore, under the statute of limitations, limiting- the time of recovery of damages for an injury to real property, to five years after the cause of action has accrued; that the cause of action of the plaintiff for the work done by said district accrued more than five years before the commencing of this suit.

It is sufficient to say concerning this plea that it assumes that the declaration in the first and third counts is for recovery of damage permanent .to the land involved. The declaration, however, and all the counts thereof, are for damage to the crops growing or grown upon the land in question adjacent to the drainage ditch and levee, for certain years specified, all of which are within the limitation of five years before the commencement of this suit. And the plea is based upon the assumption that the digging of the ditch and constructing the levee was a permanent structure. It is well settled that the digging of a ditch and the construction of an embankment or levee in connection therewith as averred in the declaration, is not a permanent structure within the contemplation of the law. Chicago, P. & St. L. Ry. Co. v. Reuter, 223 Ill. 387; Ohio & M. Ry. Co. v. Thillman, 143 Ill. 127; Deterding v. Central Illinois Public Service Co., 231 Ill. App. 542. This court in the Deterding case above cited, pointed out, that “the unlawful obstruction of a stream by a dam or embankment, however permanent in character, is never considered in law a permanent structure. And the permanent type or character of the structure cannot be availed of as a defense to an action brought by a party whose rights have been invaded to abate the nuisance created by the obstruction to the free flow of the water from the dominant heritage and nothing the owner of the servient heritage could do, even the building of a permanent dam, constructed of rock and concrete, could give the dam the character of a lawful permanent obstruction. ’ ’

It is also well settled that under the circumstances and conditions averred in the declaration, “each overflow of the land of an adjoining owner caused by the negligent or improper construction of a railroad embankment is a fresh nuisance, and creates á new cause of action, and the railroad company is liable.” Chicago, P. & St. L. Ry. Co. v. Reuter, supra; Ohio & M. Ry. Co. v. Thillman, supra; Handfelder v. East Side Levee & Sanitary Dist., 194 Ill. App. 262; Sanitary Dist. of Chicago v. Ray, 199 Ill. 63.

“Where a structure though permanent and lawful is negligently or defectively constructed, it constitutes a continuing nuisance, and each injury occasioned by it creates a new cause of action, and successive recoveries may be had for the successive injuries caused by it.” Atherton v. East Side Levee & Sanitary Dist., 211 Ill. App. 55; Drda v. Illinois Terminal R. Co., 210 Ill. App. 640; Handfelder v. East Side Levee & Sanitary Dist., 194 Ill. App. 262.

It is also well settled that, ‘ ‘it is the duty of a drainage district to keep its own natural watercourses open and free from obstruction, so none of the waters of the district will be forced upon the land of the adjoining district in times of flood. ’ ’ Bay Bottoms Drainage Dist. v. Cache River Drainage Dist., 295 Ill. 301; Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36.

The special plea referred to did not constitute a defense to the plaintiff’s right of recovery, based upon the facts averred in the declaration.

The eighth and tenth special pleas which are also pleas of the statute of limitations are also legally insufficient for the reasons stated. The demurrer was therefore properly sustained to the pleas referred to.

It is contended also that the court erred in sustaining a demurrer to the drainage district’s fifth special plea, which alleges a former recovery. This plea avers that the plaintiff in the action, Lizzie Farrow, had -theretofore impleaded the drainage district in the circuit court of Greene county at the February term, 1920, in a plea to recover damages in the sum of $2,500 for the very same wrong and injuries in the declaration mentioned and that such proceedings were thereupon had; that afterwards at the September term of said circuit court in the year 1921 by the judgment of the same court the plaintiff recovered against the defendant the sum of $575 for her damages, as well as costs of suit; which judgment was thereafter paid and satisfied by the drainage district. It is apparent on the face of the plea that the wrongs and injuries sued for in this case, mentioned in the declaration, are not the same and did not accrue to the plaintiff until after the suit referred to in the plea had been instituted and adjudicated, and the judgment recovered by the plaintiff, satisfied, namely in the year 1921, and that the plaintiff could not therefore have recovered in that case any of the damages sued for in this case because her right of action did not accrue to the plaintiff until afterwards, namely, in the years 1923, 1924, 1925, 1926 and 1927. The demurrer to this plea was therefore properly sustained.

The point made, concerning the neglect to elimination of certain allegations concerning joint ownership of crops of Adellis Farrow with the plaintiff, after the plaintiff became the sole plaintiff in the case, appears to be without merit, because the jury could not in any way have been affected in its deliberations by the matter suggested, inasmuch as the declaration did not go to the jury; and there is nothing in the record to show that this feature of the case was considered by the jury in any way.

It is assigned as error that the court refused to direct a verdict at the close of all the evidence. It is sufficient to say with reference to the motion to direct a verdict, that inasmuch as there was evidence tending to show a right of recovery and damages suffered by the plaintiff under some of the counts in the declaration, the motion to direct a verdict was properly denied.

The record does not disclose any error in the admission of evidence on the trial.

It is contended that the verdict is against the manifest weight of the evidence; and that the court therefore erred in denying the plaintiff in error a new trial. The evidence in the record discloses, however, that the jury in consideration of the evidence were fully warranted in their findings, both as to the plaintiff’s right of recovery and as to the amount of damages assessed.

We are of opinion that the instructions which were given for the plaintiff are substantially correct statements of the law pertaining to the issues involved in the trial.

The record does not disclose any reversible error; and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Wilson

text:
    Chicago Title & Trust Company, Appellee, v. John Arnold et al., Defendants. Appeal of Romme & Company, Appellant.
    Gen. No. 35,817.

      Heard in the third division of this court for the first district at the February term, 1932.
    Opinion filed December 21, 1932.
    Arle Urban and Justin H. McCarthy, for appellant.
    David Branower, for appellee; Pritzker & Pritzker and Arthur J. Goldberg, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

July 25, 1928, the Austin State Bank, a corporation, was appointed receiver of the properties of the defendant in a cause entitled G. Levant Hackley, Individually and as Trustee, v. Ambassador Theatres Corporation, et al., Case No. 481177, in the superior court of Cook county. Among the properties of the defendant were certain theatres located in the City of Chicago, and the receiver was given the power under the order of appointment to carry out certain contracts between Harry Minturn, doing business as Minturn Players, and the defendant and for that purpose to continue the operation of the theatres.

On December 20, 1929, an order was entered in said cause appointing one E. L. Klein as successor receiver in the place of the Austin State Bank, which had resigned.

September 13, 1930, Klein asked for leave to resign as receiver and an order was entered discharging him and appointing the Chicago Title & Trust Company, as receiver, in lieu of and as successor to Klein in Case No. 481177.

September 11, 1930, just prior to this last order the Chicago Title & Trust Company, as trustee, filed its bill of complaint in the superior court in Case No. 523889, entitled Chicago Title and Trust Company, a corporation, as trustee, v. John Arnold, et al. This suit was to foreclose the lien of the first mortgage or trust deed on the premises described in the bill of complaint filed in said cause and which trust deed constituted a first lien on the property in Case No. 481177, already referred to.

.September 13, 1930, an order was entered in Case No. 481177, which was the suit brought by the junior lienor extending the receivership to Case No. 523889, which was the suit brought by the trustee under the first or senior incumbrance. The order extending the receivership contained a provision to the effect that the receiver under the first incumbrance was to receive the property “free from any and all obligations, liabilities or debts of the receiver or receivership that may have been incurred by the said Klein or the said Chicago Title & Trust Company, his successor in connection with the duties of either of them as Receiver herein.” In other words, the receiver under cause 523889 received the property free and clear of any obligations incurred by the receiver in cause 481177.

July 1, 1931, approximately 10 months after the entry of this order, petitioner here, Romme & Company, a corporation, filed its petition in Case No. 523889, asking that it be reimbursed for the cost of printing programs and other' printed matter at the request of E. L. Klein, acting as receiver in the prior action brought by the junior lienor. This petition was denied and from the order denying the petition an appeal has been prayed to this court.

A purported certificate of evidence is included in the transcript of record, from which it appears that this certificate of evidence was presented to the chancellor on February 2, 1932, and was ordered filed on February 11, 1932, nunc pro tunc as of February 5, 1932. The order appealed from was entered in the superior court November 6, 1931, and appears to have been entered after a full hearing. The appeal is from this order. The order appealed from contained no provision allowing the complainant to file a certificate of evidence and it nowhere appears in the record that a certificate of evidence was prayed for other than might be gathered from the order of January 6, 1932, extending the time for filing a bill of exceptions. On that date, January 6,1932, the term at which the original order was entered had expired.

The record filed in this cause contains numerous orders and pleadings entered in cause number 481177. These orders were not presented in evidence, so far as the record discloses, nor preserved by the certificate of evidence, but were made a part of the praecipe record at the request of counsel for petitioner, Romme & Company. A motion to strike the certificate of evidence from the record was entered in this court and continued until the hearing. We are of the opinion that the motion should be allowed. There was no order entered within the term granting the filing of the certificate of evidence, nor was it presented to the trial court until after the term had expired. Counsel for petitioner, Eomme & Company, in their reply brief, say: “On the other hand Appellant considers the certificate of evidence as but of little importance in this case.” In view of the position taken by petitioner, a consideration of the certificate of evidence is not necessary to a decision of the case and it will be stricken from the record.

Upon the record as it now stands, the petitioner seeks to establish a claim in a proceeding brought by the trustee of the first trust deed, for services rendered for a receiver in a prior suit brought by a junior lienor! The proceedings in Case No. 481177 are not before this court and are not properly part of this record. This is an appeal from an order entered in Case No. 523889, which is a separate and distinct proceeding. The order denying the prayer of the petition states that it was entered after a full hearing. Petitioner should have presented his claim in apt time in the proceedings in the superior court in which Klein was receiver and under whose authority the work, if any, was done. No appeal was taken from the order extending the receivership to Case' No. 523889 “free from any and all obligations, liabilities or debts of the receiver or receivership that may have been incurred by the said Klein. ’ ’ The only claim petitionei had was to the moneys in the hands of Klein and this should have been presented prior to- his discharge.

Courts authorize receivers to continue the business of a corporation with caution. Its main purpose is to preserve the property and it is only when it is clearly in the interest of all parties that a continuation of the business is authorized. When a business is permitted to be run by a receiver, the returns from the operation of the business can properly be used to pay operating expenses, and claims incurred by the receiver should be protected. Makeel v. Hotchkiss, 190 Ill. 311.

Under the order extending the receivership in this case clear of all liabilities, the receiver, in the action brought by the first mortgagee, received it free and clear of any liability. Fleming v. Anderson, Jr., 220 Ill. App. 570. The claim of the petitioner in this case, if any, is against the funds, if any there are, in the hands of - the receiver in the prior action, and not against the receiver appointed under the first mortgage. The first or senior trust deed covered not only the property but the rents, issues and profits, and the receiver thereunder was entitled to apply them on the senior incumbrance after its appointment as receiver.

For the reasons stated in this opinion the order of the superior court denying the petition is affirmed.

Order affirmed.

Hebel and Hall, JJ., concur.


text:
    Wear Proof Mat Company, Appellee, v. Bastian-Morley Company, Appellant.
    Gen. No. 35,865.

      Heard in the third division of this court for the first district at the June term, 1932.
    Opinion filed December 21, 1932.

      Ashcraft & Ashcraft, for appellant; Carroll J. Lord, of counsel.
    Carl R. Latham and Francis J. Naphin, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is an action to recover the balance of the purchase price on 100 oil burners sold and delivered by the plaintiff to the defendant in accordance with a certain agreement bearing date of April 8, 1930. These oil burners were shipped by the plaintiff on order by the defendant. The action was tried by the court without a jury resulting in a finding in favor of the plaintiff in the sum of $5,428.75 and costs, and judgment entered upon the finding. It is not denied that the goods were manufactured, ordered, shipped and received. The agreement of April 8, 1930, appears to have been the result of the collaboration of both the plaintiff and the defendant and it appears to have been the intention of the parties that the original shipment of 100 oil burners was preliminary to a continuing arrangement extending over a period of time, which was to result in an ultimate benefit to both parties. On April 19, 1930, the first 10 of these burners were shipped and shipments were made from time to time thereafter until May 28, at which time the order was completely filled.

July 5, 1930, the defendant notified the plaintiff that they were invoicing the burners back to the plaintiff and that they would be held subject tp plaintiff’s shipping instructions.

It is apparent that a little over two and one-half months elapsed between the time of the delivery of the first shipment of the oil burners delivered under the agreement and the refusal to accept the goods by the defendant.

The agreement of April 8, 1930, was a communication from the plaintiff stating the price at which the articles were to be purchased and providing for future deliveries thereafter for a period of three years. The offer of the seller contained in this communication was to be considered as accepted on the placing of an order by the defendant with the plaintiff for at least 100 of these burners. The order of the defendant was placed and the agreement became mutual. It was provided in this communication of April 8 by the plaintiff, Wear Proof Mat Co., as follows:

“We will and do guarantee each and every burner purchased by you under this arrangement to have been made in a good and workmanlike manner and of good material. If any of these burners, or any parts of them, shall fail through defects in workmanship or material, within one year from date of shipment to the actual user, we will replace the defective part or parts, free of charge or cost for the same upon return to us of such defective parts.”

It is insisted that the judgment should be reversed for the following reasons:

First, the overwhelming preponderance of the evidence supported defendant’s position that the burners were not manufactured in a good and workmanlike manner, as plaintiff expressly warranted in the contract of purchase;

Second, there was an implied warranty from the plaintiff to the defendant that the burners were reasonably fit for the purpose of being resold for use as oil burners in heating residences.

A careful examination of the testimony shows that the principal objection to the burners furnished by the plaintiff rests not so much on the failure to provide good material as it does on the failure to make them in a good and workmanlike manner. The material that entered into the manufacture of these articíes so far as we can find was in and of itself of good grade and free from defects.

The principal points of difficulty arise, however, when we come to consider the question as to whether the burners were made in a good and workmanlike manner as contemplated by the express warranty and also under the implied warranty, as provided in section 15 of the Uniform Sales Act, Cahill’s Illinois Revised Statutes of 1931, ch. 121a, 18, and the exception thereto, number one (1), as follows:

“18.] § 15. Implied Warranties of Quality.] Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as-to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
“ (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”

Plaintiff takes the position that in this case the defendant did not rely upon any warranty express or implied that the manufactured article was fit for the particular purpose intended, but on the other hand made a long and exhaustive research as to its fitness before accepting plaintiff’s burner and ordering shipment to its factory at LaPorte, Indiana.

Prior to the making of the agreement of April 8, 1930, neither the plaintiff nor the defendant had been engaged in the manufacture or sale of oil burners.The defendant was a corporation engaged in the manufacture of boilers and water heaters and was located at LaPorte, Indiana, and in the fall of 1929, decided to enter the field of marketing oil burners and oil burning boilers in addition to those already manufactured and sold by it. For the furtherance of this purpose the defendant employed one Knox who had a number of years’ experience in the oil burner field and although not an engineer, nevertheless was somewhat familiar with the construction and operation of oil burners. Knox, apparently, was seeking to find a burner which could be used by the defendant and was told that Peterson, the president of the plaintiff company, Wear Proof Mat Co. of Chicago, a corporation, had been experimenting with and had constructed an oil burner which might be obtainable and would answer the purpose. On February 2, 1930, Knox wrote Peterson a letter asking him if he would consider manufacturing a burner for a reliable company. There appears to have been some correspondence, as a result of which on February 19, 1930, plaintiff shipped a burner described and known as the original Model ‘ B ” to defendant’s factory for testing and later in February, Knox called at plaintiff’s office in Chicago and according to Peterson stated that they had made some tests and that the burner furnished by the plaintiff had shown an over-all efficiency of 84 per cent, which was better than that made by other burners which had been tested. Knox made certain suggestions, as also did Peterson, as a result of which certain changes were made.

On March 6, Peterson and Knox had a talk at LáPorte, at which time Knox stated that they had secured satisfactory results with the burner as altered. April 19, the defendant wrote Peterson that the flame was noisy, but that by covering the opening in the front of the boiler they were able to reduce the combustion noise and get a very satisfactory C O2. He suggested that certain other things might be done to better the burner. In the same communication it was suggested that the engineers of the defendant might aid by providing a design for an air control which might be built into the burner.

On April 24, Knox wrote Peterson and stated that he was never more sold on the possibility of the burner and added that the cup on the burner furnished by the plaintiff had the cup on other burners “licked a hundred ways. ’ ’

On April 29, the plaintiff wrote the defendant to the effect that confirming the talk over the telephone, they would continue deliveries. This it will be borne in mind was after the original shipment of the first burners of this model on April 19. June 10, the defendant wrote the plaintiff stating that they appreciated the co-operation given them and believed some day they would be able to reciprocate with a real order.

June 18, the defendant wrote the plaintiff to the effect that the installation of the machine at the Crane laboratory was faulty, but that a number of changes should be made in the burner before placing it upon the market, namely, built-in air shutter, the oil and gas valves made an integral part of the burner, a design of the cups to deaden the combustion roar, and change the gas pilot light. Also, it was found that some of the burners developed considerable play in the lower shaft which caused wear. In this communication it was also suggested that the changes might be made at the plant of the plaintiff or at the plant of the defendant.

From the evidence it does not appear that there was a built-in air shutter in the Model B that had been shipped, nor was the oil or gas valve made an integral part of the burner nor was there any expansion light. The pilot light on the Model B was the same as that which was on the original Model B which had been tested by the defendant.

July 5, the defendant notified plaintiff that they would hold the oil burners which had been shipped, subject to plaintiff’s order, and negotiations were broken off.

The plaintiff, Wear Proof Mat Co., was a corporation engaged in the manufacture of mats and not in the manufacture of oil burners. This company had never made any burners for the trade nor had any been sold except 10 or 12 which had been made by Peterson and two other men acting under his direction. These had not been sold to the trade, but to individual homes. Peterson had been experimenting with this oil burner in the hope of making it a saleable, commercial product. It is apparent from the evidence that the plaintiff knew that the Bastian-Morley Co. were newcomers in the oil burner field, and the Bastian-Morley Co. was aware of the fact that the oil burner furnished by the Wear Proof Mat Co. was in its experimental stage. The placing of these oil burners upon the market through the agency of the defendant was in the nature of a joint undertaking, both parties hoping* that it would be a profitable venture. The defendant was about to enter the field in competition with others. It was necessary to procure an oil burner to be used in conjunction with its boilers that would meet this competition and furnish a new output for its boilers. Defendant was hopeful that the burner of the plaintiff would supply the requirement. It did not, however, in our opinion rely upon the plaintiff’s skill or judgment. This is evidenced by the fact that defendant knew that plaintiff was not engaged in the business of manufacturing burners; that the oil burner was in an experimental stage; that defendant tried out and tested the models furnished by the plaintiff and that it did not repudiate the sale until over two months after the first shipment of burners was received. Miami Cycle & Mfg. Co. v. National Carbon Co., 268 Fed. 46; Dunbar Bros. Co. v. Consolidated Iron-Steel Mfg. Co., 23 F. (2d) 416; Kansas City Bolt & Nut Co. v. Rodd, 220 Fed. 750.

Upon the trial expert witnesses produced on the part of the defendant testified that when the burner was in operation it gave out a booming sound; that the upper bearing did not receive adequate lubrication ; that there was a clearance between the shaft and its bearings which was excessive; that there was some scoring on the upper shaft and that there was considerable looseness in the meshing of the gears. One of these experts so testifying was Bulger, a mechanical engineer employed by the Petroleum Heat and Power Company in its oil burning division. This witness had been employed for a number of years by the American NoKol Company prior to the time it went into the hands of the receiver, about 1921. Another witness was one Libby, professor at Armour Institute for a number of years, who had made a number of tests with oil burners. The tests made by these two expert witnesses were after the repudiation of the contract by the defendant and evidently for the purpose of testifying in the proceeding. There is no doubt but that they were experienced men and it is strongly contended that the testimony of these witnesses should be controlling because of their knowledge of the subject.

On the other hand, plaintiff introduced one Miller, a layman, in whose house one of the Model B oil burners had been installed and had been in operation since September 1931. According to this witness the operation of the machine in his home was entirely satisfactory. Another witness, one Stump, produced by the plaintiff, testified that he was a graduate of Armour Institute and employed by the board of education of Chicago as an instructor in the steam fitter branches; that he had seen a Model B burner in operation in Mr. Peterson’s home and that in his opinion it was constructed in a first class workmanlike manner and that he, himself, had a Model A burner which had been running successfully in his home for the past five years. Hanson testified that he was a toolmaker and had been for a number of years; that he assisted Peterson in the development of the oil burners and that the Model B burners which were shipped, to. Bastian-Morley Co. were made under his supervision of a fine grade of material, and before they were sent to the defendant had been put through a bench test of not less than 2 hours and a number of them were run over the night, covering a period of 15 hours or more.

There was other evidence on both sides as to the practicability of this burner. There was also evidence on the part of the plaintiff that the burners were not noisy; that the clearance between the shaft and its bearings was not excessive; that the gears were purchased from the Boston Gear Works, whose product was recognized in the trade as of the highest quality ; that there necessarily would result some slight scoring on the upper shaft which, however, did not impair the operation of the machine.

Aside from the fact that defendant did not rely upon the warranty there was a sharp conflict in the evidence as to whether or not the burners were so constructed as to answer the purpose.

Plaintiff was not required to furnish the best oil burner on the market, but one such as would reasonably answer the purpose. Williston on Sales, 2d Ed. sec. 243, page 486; McNeil & Higgins Co. v. Czarnikow-Rienda Co., 274 Fed. 397.

The trial court had an opportunity to hear the witnesses and to observe their demeanor while testifying and it is not within the province of this court to substitute its opinion for that of the trial court as to the facts unless the finding of the trial court is manifestly against the weight of the evidence and this we are unable to say. The evidence of the plaintiff on the questions involved in and of itself was sufficient to sustain the finding of the trial court. There was a sharp conflict between the witnesses on both sides as to the practical operation of the burner. Siegel v. Dickinson, 163 Ill. App. 26; Citizens Bank of Johnston City v. Carr, 194 Ill. App. 273; Frazer v. Kuntzeman, 195 Ill. App. 169; Kelly v. Chicago City Ry. Co., 202 Ill. App. 239.

We see no reason for disturbing the judgment of the superior court and for the reasons stated in this opinion the judgment is affirmed.

Judgment affirmed.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Argus Press, Inc., Defendant in Error, v. J. C. K. Lindhout et al., Defendants. Sophie M. Lindhout and Francis A. Harper, Plaintiffs in Error.
    Gen. No. 35,645.

      Heard in the third division of this court for the first district at the February term, 1932.
    Opinion filed December 21, 1932.
    Rehearing denied January 3, 1933.
    Francis A. Harper, for plaintiffs in error.
    William L. Howard, for defendant in error.
   Mr. Justice Hall

delivered the opinion of the court.

By- this writ of error it is sought to review a decree of the circuit court of Cook county by which it is ordered that J. C. K. Lindhout and Francis A. Harper, plaintiffs in error, turn over to the receiver of J. O. K. Lindhout certain notes and mortgages in order to satisfy a judgment of the complainant, Argus Press, Inc., against Lindhout.

On April 3,1930, the Argus Press, Inc., complainant, filed a bill against defendant, J. C. K. Lindhout and others, in which it was recited that the complainant had on March 6,1930, obtained a judgment against the defendant, J. C. K. Lindhout, for the sum of $1,650.26 and that execution had been issued thereon, and returned nulla bona. By the prayer of the bill, it was asked that J. O. K. Lindhout be restrained from disposing of certain property, and that the defendants discover and set forth to the court any properties of said Lindhout, which either of them might have in his possession. The bill also prayed that a receiver be appointed for the property of J. C. K. Lindhout. The defendants, including J. C. K. Lindhout and Sophie M. Lindhout, his wife, were duly served with summons and filed sworn answers in the cause. The claim of defendants is that the notes, mortgages and certificates of stock ordered into the possession of the receiver are the property of Sophie M. Lindhout and that Francis A. Harper holds them as security for attorney’s fees due him.

On April 28, 1930, the court ordered that defendant, J. C. K. Lindhout, appear before a master in chancery, Isidore Brown, “and be examined touching on his assets. ’ ’ On June 3,1930, it was ordered that the cause be referred to Isidore Brown, master in chancery of the circuit court, “to hear evidence, to' take proof and depositions, to cause to come before him all such witnesses as the respective parties may desire and examine them severally on oath and do each and everything necessary and incidental thereto, to have transcribed and reduced in writing the testimony and render in writing his conclusions and report both on the law and the evidence to this court.” Thereafter on June 10,1930, a report was filed by the master in which it is recited that on May 2, 7, 9, 10 and 22, 1930, various witnesses, including J. C. K. Lindhout, had appeared before the master and given their testimony, and that such testimony had been transcribed and that such transcript, together with certain documents produced on the hearings were attached to the report and were made a part of it.

The master found that on April 30, 1930, Whiteside & Wentworth, Inc., had been appointed receiver of Country Club Developers, Inc., in accordance with the prayer of the bill of complaint, and that on the 19th day of May, 1930, an order had been entered in this cause “directing the defendant, J. C. K. Lindhout, to assign, transfer and deliver to the said receiver all such property, real and personal, things in action, equitable interest and other effects etc.” Neither the order appointing the receiver, nor the order requiring Lindhout to turn over the property mentioned, appears in the record filed in this case. From the evidence heard, the master held that certain notes, trust deeds and stock certificates were the property of J. C. K. Lindhout and were either in the possession of 'J. C. K. Lindhout or someone for him, and concluded that J. C. K. Lindhout and Sophie Lindhout, his wife, be required by order of the court to turn such property over to Whiteside & Wentworth, Inc., receiver theretofore appointed in the cause.

Thereafter on June 12,1930, the receiver filed a petition in this cause in which it is recited that on the 10th day of June, 1930, an order had been entered whereby defendants, J. C. K. Lindhout and his wife, had been directed to turn over to the receiver certain stock certificates, notes and mortgages; that a copy of this order had been delivered to Francis A. Harper, solicitor for the Lindhouts, who had certain of the documents in his possession, and a demand made on Harper for the delivery to the receiver of the property mentioned, and that the Lindhouts had failed to comply with the order, and that Harper had refused to do so, and that Harper made no claim against J. C. K. Lindhout. Petitioners prayed that J. C. K. Lindhout, Sophie M. Lindhout and Francis A. Harper be cited to show cause why they should not be committed for contempt of court.

On June 19,1930, an answer to the petition of White-side & Wentworth, Inc., receiver, was filed by Harper, in which he alleged that he had been employed as attorney, by defendant, Sophie M. Lindhout, to represent her in connection with certain real estate conveyed at the request of her husband to the Country Club Developers, Inc.; that Sophie M. Lindhout had turned over to Harper and to Frisch & Frisch certain of the notes and mortgages described in the petition of the receiver, and that he, Harper, was holding such documents as security for the payment of his fees, and that J. C. K. Lindhout had no interest in them. Thereafter on June 30, 1930, the court ordered that the documents named be held by Harper, subject to the further order of the court.

On August 14, 1930, the master to whom the cause had theretofore been referred filed an additional report in which it is recited that since the preparation of his report in the cause on June 10, 1930, he had reopened the matter for further hearings, and that on July 15, 1930, J. C. K. Lindhout and Sophie M. Lindhout had appeared and testified, and the master further reported that after hearing such testimony he was of the opinion and found that the notes and mortgages set forth in the original report were the property of J. C. K. Lindhout, and recommended that a proper order be entered in the cause in accordance with the original finding of the master. Objections to the master’s report were presented and overruled on March 28, 193.1. The court after a full hearing ordered that the exceptions to the master’s report be overruled, and in its decree found J. G. K. Lindhout to be the owner of the notes, mortgages and stock certificates described in the master’s report; that Whiteside & Wentworth, Inc., receiver, had filed a voluntary petition in bankruptcy and had been adjudged bankrupt, and that such receiver had received no assets, performed no services, and ordered their discharge and removal, and further ordered that the Foreman Trust & Savings Bank be appointed receiver. The court in its decree further found that Francis A. Harper had possession of nine of the notes and mortgages described in the bill and ordered Harper to deliver them forthwith to the receiver named. It was further ordered that the bill be dismissed as to Shirley J. Cowing, George Cowing, Monee State Bank and Country Club Developers, Inc.

One of the principal grounds urged by plaintiff in error for the reversal of the decree herein is that under the terms of the order of reference made on April 28, 1930, directing that defendant, Lindhout, appear before the master “and be examined touching on his assets,” the master exceeded the power conferred by the first order of reference in that various witnesses, on the question as to whether or not defendant, Lindhout, was the owner of the property described in the bill of complaint, were examined, when this order limited the examination to Lindhout, alone, “to be examined touching his assets.” It is true that on various days subsequent to the entry of this order and before June 3, 1930, the receiver appointed by the court produced various witnesses who were examined at length on the question of the ownership of these properties. These witnesses were interrogated by the attorney for the receiver. At these hearings Lindhout appeared with his counsel, Francis A. Harper, and voluntarily testified. Thereafter on June 3, 1930, the court entered a further order of reference in which the master was given full power to examine witnesses produced by any and all parties to the controversy, and to report his conclusions of law and fact. An examination of the evidence contained in the certificate of evidence, and consisting of testimony produced by the receiver before the master, and made a part of the master’s report, is to the effect that one Helen V. Clark, a clerk in a real estate office, held the title to certain real estate described therein; that at the behest and on behalf of J. C. K. Lindhout, she conveyed this real estate to Country Club Developers, Inc., and that there was delivered to J. C. K. Lindhout by the Country Club Developers, Inc., a series of notes aggregating $250,000 together with mortgages on two parcels of real estate, given to secure the payment of these notes; that as a further consideration for the conveyance of this real estate to the Country Club Developers, Inc., certain stock certificates were issued by the Country Club Developers, Inc., to Helen Y. Clark and by her surrendered and canceled and thereafter issued and delivered to J. C. K. Lindhout; that at the time of the hearing these certificates stood on the books of the corporation in the name of J. C. K. Lindhout; that after the delivery of the notes and trust deeds to J. C. K. Lindhout, he had obtained a personal loan and had hypothecated certain of the notes and trust deeds as security therefor, and that he had procured a further personal loan on certain other of the mortgages and notes given by the Country Club Developers, Inc., as a part of the purchase price of lands conveyed to it, and that Helen Y. Clark had entered into an agreement with the persons from whom this loan was obtained, by which she subrogated her interest, if any, in the notes and mortgages hypothecated by Lindhout to secure the loan, to the interest of the bank; that 27,500 shares of the capital stock of the Country Club Developers, Inc., appear by the stock book to be the property of J. C. K. Lindhout, and that 17,660 shares had been recorded in the name of Helen Y. Clark, now deceased. The evidence further shows that the 17,660 shares of stock in the corporation were transferred by Helen Y. Clark to J. C. K. Lindhout, and that Helen Y. Clark surrendered the certificates issued to her and that Lindhout is the owner of this stock. The evidence further is to the effect that Lindhout had always and' under all circumstances claimed title to the real estate conveyed to Country Club Developers, Inc.

Among the witnesses produced by the receiver were the attorney who represented Lindhout in the matter of the transfer of his properties to Country Club Developers, Inc., and the representatives of the two banks who made the loans upon the notes and mortgages hereinbefore mentioned. Bach of them testified that'Lindhout claimed title to these properties. After the master’s report had been filed, at the request of defendants, the master opened up the whole matter and permitted defendants to offer proof as to the ownership of these properties. Both Lindhout and his wife testified that the land conveyed to Country Club Developers, Inc., and the notes, mortgages and stock certificates given as the consideration for such conveyance were the property of Sophie M. Lindhout. Thereafter the master filed an additional report in which he recited “that construing the testimony offered most favorably for defendant herein, the master saw no reason either in law or in fact why any of the findings and conclusions contained in the original report should be altered,' changed or amended in any manner or form.”

While the hearings before the master may not have been as orderly as proceedings usually are before a court, still the record shows that defendants were given' every opportunity by the master and the court to present their defense. The master heard and saw the witnesses, and his findings are justified by the evidence. In Siegel v. A. H. Andrews & Co., 181 Ill. 350, the Supreme Court said:

“The first contention raises a question of fact, which has been passed upon adversely to appellants by the master. This finding has been approved by the chancellor, and, after a careful reading and consideration of the evidence, we cannot' say that its weight is manifestly and clearly against the finding, and that being so, we should not and will not disturb it.”

We realize that the Supreme Court in Chechik v. Koletsky, 311 Ill. 433, and in Hoelscher v. Hoelscher, 322 Ill. 406, seem to have adopted a different rule and in the former case, to have held that “the master’s report, while prima facie correct is of an advisory nature only. All the facts are open for the consideration, in the first instance, of the trial court, and in case of an appeal, by the reviewing court. Without regard to the finding of the master upon any particular question of fact, the ultimate and final question in this court is, Was the decree rendered by the chancellor the proper one under the law and the evidence!”

The Supreme Court cannot have meant to say that a trial court or a reviewing court in considering a case similar to-the instant one, cannot take into consideration the fact that the master had the witnesses before ■ him, and that he had the opportunity of observing the manner and demeanor of the witnesses while testifying, their candor or lack of candor, and their interest, as in this case, in the outcome of the proceeding, in arriving at his conclusions. The contrary seems to be the view of the Supreme Court in its latest announcement on this question. In Hogg v. Eckhardt, 343 Ill. 246, page 257, in referring to the testimony of a witness heard, before a master, the court said:

“The testimony of this witness has been subjected to a severe attack by counsel for appellee. The master heard the witness and had an opportunity to study him while he was on the witness stand.”

During the pendency of the proceeding, the bill was amended and Francis A. Harper was made an additional party. He was served with summons and filed an appearance in the case so that the court had complete jurisdiction of Francis A. Harper.

The court in its decree followed the master’s reports, and we believe from a review of the record that the decree is just and should be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


text:
    Milton Booth et al., Appellees, v. George Roy Baker et al., Appellants.
    Gen. No. 35,741.
    Heard in the third division of this court for the first district at the February term, 1932.
    Opinion filed December 21, 1932.
    Rehearing denied January 6, 1933.
    Charles A. Schreiber, for appellants; Leon N. Miller and David L. Apfelbaum, of counsel.
    James N. Lorenz, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from a decree of the superior court of Cook county in a proceeding in chancery by Milton Booth and Albert Weber, suing individually and as president and trustee of the Chicago Coal Teamsters, Chauffeurs and Helpers Union, and Yard-Men and Coal Hikers Union, Local Unions Nos. 704 and 701 respectively, of the Chicago- Teamsters, Chauffeurs and Helpers Union of Chicago and Vicinity, against appellants and other defendants named in the bill, restraining and enjoining appellants and sncli other defendants, their agents, servants and associates, from pretending to be the officers or trustees, or board of trustees, or executive board of the Chicago Coal Teamsters, Chauffeurs and Helpers Union, Local No. 704, or YardMen and Coal Hikers Union Local No. 701, and from announcing or asserting or pretending that they are such officers and have any authority or power to act in that capacity. By the injunction order the defendants are also enjoined from dealing with or transacting any business as officers of said Chicago Coal Teamsters, Chauffeurs and Helpers Union Local No. 704 and Yard-Men and Coal Hikers Union No. 701.

By the bill it is alleged that these unions are voluntary associations in good standing, and are composed of more than 1,700 members in good standing, and that ■the complainant, Milton Booth, is a member and president of Local Union No. 704 and Local Union No. 701, and that Albert Weber is a member and trustee of Local Union No. 704 and Local Union No. 701; that they have been president and trustee respectively for such local unions for a number of years last past, and that Milton Booth is 4th vice president of the general executive board of said Chicago Coal Teamsters, Chauffeurs and Helpers Union of Chicago and Vicinity. In general terms, the bill recites that appellants and other defendants named are not members in good standing of the various unions referred to. The bill charges that on March 8, 1931, the defendants organized a meeting, attended by them and other persons unknown to the complainants, and without notice of the meeting to the complainants or to other members of Local Union No. 704 and Local Union No. 701, pretended to elect the defendants, George Boy Baker, president, James Lynch, secretary-treasurer and business agent, Frank Kasper, chairman of the board of trustees, Walter Thomas, vice president, Walter J. Collins, recording secretary, Grant Irwin, business agent, and G. McGregor, trustee, of Local No. 704 and Local No. 701 respectively; that at an adjourned meeting on March 15, 1931, the persons mentioned proceeded to elect trustees of these unions. The bill recites further that these persons who held this pretended election, did so in violation of the by-laws of the various organizations, and without right; that the complainants are the regularly elected and qualified officers of such associations, and that the defendants are disrupting and disorganizing these associations to the detriment of the members thereof.

There is no allegation in the bill that any property right is jeopardized or involved in the alleged acts of the defendants. In 14 Ruling Case Law, page 365, we find the following, which seems to be a fair statement of the law in this regard:

“It may be stated generally that the office of an injunction is the protection of property and rights of property, and that such relief will not be granted to relieve from all the annoyances caused by those who are inconsiderate of the feelings and business interest of others, or generally to protect political or personal rights.”

In Lewis v. Voliva, 154 Ill. App. 48, a bill was filed in which it was prayed that an injunction issue restraining one Voliva and his agents from interfering with the complainant as general overseer of a church, and for other relief not involving any property rights. The injunction was denied, and on appeal by complainant to the Appellate Court of the 2nd District, in its opinion in which the decree of the trial court was affirmed, the Appellate Court said:

“A court of equity will not interfere with the internal administration of a church unless property rights are in some way involved. ... We are unable to see that any property rights can fairly be said to be submitted for litigation by this bill. . . . We fail to see in this contention any question over which a court of equity has jurisdiction, but our opinion is that if there is an organized body of persons who constitute said church, it must be left for that body to determine this question in accordance with its laws and usages, free from interference by the courts.”

In Sheridan v. Colvin, 78 Ill. 237, the rule is announced as follows:

“It is elementary law that the subject matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests,” and in State v. Brush, 318 Ill. 307, the Supreme Court says:
“Injury to property or civil rights is the foundation of the jurisdiction of courts of equity.”

In the instant case, complainants seem to rely principally on Guilfoil v. Arthur, 158 Ill. 600. In that case, a bill was filed by the officers of the International Brotherhood of Locomotive Engineers against John H. Guilfoil, in which it was alleged that certain real estate had been conveyed to Guilfoil in trust for the widows and orphans of deceased members of the Brotherhood of Locomotive Engineers; that Guilfoil had entered into possession of the property with his family, and had received the use, rents and profits of the property and converted them to his own use, and had refused to account to the officers of the Brotherhood for such rents and profits. The bill prayed that an accounting be had of such rents and profits and that a decree be rendered in favor of the officers of the Grand International Brotherhood of Locomotive Engineers. In that case, the court decreed such an accounting upon the theory that a property interest was involved. It is useless to cite further authorities, for it is generally held by the courts of this State that equity will not take jurisdiction unless some property right is involved, which is not the case here.

The decree of the superior court of Cook county ordering the injunction to issue, is reversed and remanded.

Reversed and remanded.

Wilson, P. J., and Hebel, J., concur.


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    Martin Wright et al., Appellees, v. Depositors State Bank et al., Appellees. Salvatore Chiavola, Appellant.
    Gen. No. 36,176.

      Heard in the third division of this court for the first district.
    Opinion filed December 21, 1932.
    Dowling & Healy and J. C. De Wolfe, for appellant.
    Friedman, Schimberg & Alster, for appellee Aaron Saperstein.
   Mr. Justice Hall

delivered the opinion of the court.

In this case a bill in chancery was filed in the circuit court of Cook county by Martin Wright and others, complainants (appellees herein), creditors of Depositors State Bank, insolvent, against the stockholders of this bank to enforce the stockholders ’ liability provided for by section 6, Article XI, of the Constitution of the State of Illinois. Thereafter complainants filed a petition in said cause in which it is alleged among other things that Salvatore Chiavola, Frank Bobek, Agnes Hanacik and Anna Mrosek, as alleged creditors of said Depositors State Bank, theretofore filed a bill in the circuit court of Cook county, No. B-235621, against the Depositors State Bank and its stockholders, and that Aaron Saperstein, an alleged creditor of said bank, an appellee herein, had also theretofore filed a similar bill in the circuit court of Cook county against the stockholders of the Depositors State Bank, in which each sought to obtain the same relief as that prayed in the bill filed herein.

The petition also recites “that in the canse known as Chiavola v. Depositors State Bank, No. B-235621, said complainant, Chiavola, is not and was not a bona fide creditor of said bank at the time of filing his said bill herein, and is not entitled to maintain said cause and is not entitled to any equitable relief whatsoever ; and that his said solicitor, John C. DeWolfe, intends also to harass your petitioners in the orderly procedure of the above entitled cause.” To this petition Salvatore Chiavola, Frank Bobek, Agnes Hanacik and Anna Mrosek filed a sworn answer in which they assert that they are depositors and creditors of the Depositors State Bank.

In its prayer for relief, the petitioners in the instant case ask that Salvatore Chiavola, Frank Bobek, Agnes Hanacik and Anna Mrosek, complainants in cause No. B-235621, together with their solicitors, agents and servants and each of them, be restrained and enjoined from prosecuting any further proceedings in cause No. B-235621, and from instituting or prosecuting any other suits or actions of any kind in law or in equity against the said Depositors State Bank or any of the stockholders to enforce the statutory stockholders’ liability until the further order of this court.

Affidavit was made to the petition by one John A. Bussell, who stated that he knew the contents of the petition, and that the same was true except as to such matters as are therein alleged to be upon information and belief of said petitioners, and as to such matters 'and things he believes it to be true. The petition was signed by “Martin Wright, Anna Lanser, by McElroy & Pearson, Solicitors,” and sworn to by John A. Bussell. Upon this petition, supported by the affidavit, the court ordered that an injunction issue and that said Salvatore Chiavola, Frank Bobek, Agnes Hanacik and Anna Mrosek, complainants in said cause, together with their solicitors, agents and servants and each of them be enjoined and restrained from prosecuting any further proceedings in said cause No. B-235621, and from instituting or prosecuting any further suits or actions of any kind in law or equity against the said Depositors State Bank or any of its stockholders to enforce the statutory stockholders’ liability until the further order of this court. This is an interlocutory appeal from such order.

An affidavit with a form of oath to a petition for an injunction upon which perjury cannot be assigned, is not sufficient to justify the court in ordering an injunction to issue without a hearing. It is apparent that perjury could not be assigned upon the petition and affidavit under oath attached thereto. An oath is defined by Standard Dictionary to be “such an attestation or affirmation to the truth of a statement as renders liable to punishment for perjury one who wilfully thus asserts what is not true.”

Apparently, the allegation in the petition upon which the court ordered the injunction to issue is that Chiavola, one of the appellants, was not a creditor of the bank. This is ah issue to be determined in the trial of the case. There is no allegation in the petition for injunction that Frank Bobek, Agnes Hanacik and Anna Mrosek are not bona fide creditors of the bank, and have not the right under the law to proceed with the bill filed by them.

The trial court was in error in issuing the injunction upon the showing made in the petition and upon the affidavit thereto. The decree appealed from is, therefore, reversed and remanded. This court holds that Aaron Saperstein, appellee, is not a proper party to the appeal. It is, therefore, ordered that his assignment of cross errors and his brief and argument be stricken from the files.

Reversed and remanded.

Wilson, P. J., and Hebel, J., concur.