text:
    John Deere Plow Company of Moline, Appellant, v. Georgia Marie Carmer, Appellee.
    Gen. No. 8,482.

      Opinion filed April 14, 1931.
    N. E. Hutson, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from the judgment of the county court of Piatt county in a proceeding to try the right to property under the statute, concerning a Graham-Paige automobile and a Sparton radio. The court found the property right to be in the appellee, Georgia Marie Carmer. The facts proven,' as disclosed by the record, are that Glenn F. Carmer, the husband of the appellee, was indebted to the appellant John Deere Plow Company of Moline in excess of the sum of $8,000; and that in the settlement of the indebtedness the appellant accepted a note from the debtor and the debtor’s father for about one-half of the indebtedness; and for the remaining half the debtor gave his promissory note; also a bill of sale of the property mentioned, to secure the payment of the note. The bill of sale which was acknowledged before a notary public, and also recorded in Piatt county, is as follows:

“Know All Men by These Presents, That G. F. Carmer, of Bloomington, in the County of McLean and State of Illinois, party of the first part, in consideration of one dollar ($1.00) in hand paid, the receipt whereof is hereby acknowledged, and of other good and valuable considerations does by these presents, sell and deliver to John Deere Plow Company of Moline, party of the second part, the following described personal property, to-wit:

One Graham-Paige Sedan, Model 615, Engine No. 723,626, Serial No. 715633, Color Robin’s Egg Blue, 1 Model 111 Sparton Console radio complete with tubes.
“It is hereby agreed, by and between the parties, that said personal property may be sold by second party at public or private sale, without notice, and that the proceeds of said sale, less the expense of taking, caring for, keeping, fitting, repairing and selling same, shall be applied as a credit on the indebtedness of said first party to said second party, as evidenced by certain promissory notes which said first party admits are unpaid at this date, as follows:
One Note'; Principal $4395.58 Date of Note April 25-30. Date Due Demand.
“It is further specially agreed, by and between the parties, that the delivery of said personal property to and the sale of the same by second party shall in no manner relieve or release first party from liability for payment, of any part of his said indebtedness upon said notes that may remain unpaid after the net proceeds of the sale of said personal property has been credited as aforesaid; and it is further agreed, that the net proceeds realized from the sale of said personal property may be applied by the second party on either or all of said notes as second party may elect, and the application of any money thus received will be considered as a voluntary payment of said first party on said note or notes as of the date on which said personal property is sold.
“In Witness Whereof, Said first party has hereunto set his hand the 21st day of May A. D. 1930.
(Sgd) Gr. F. Carmer.
Signed and Delivered in the Presence of
H. W. Pike.
H. W. Porter.”

It will be noticed that the bill of sale provides that the property embraced therein may be sold by the appellant at public or private sale without notice; and that the proceeds of said sale less the expense of taking, caring for, keeping, fitting, repairing and selling the same, shall be applied as a credit on the indebtedness of the debtor as evidenced by the promissory note referred to. At the time of the settlement in question and the execution and delivery of the bill of sale, the automobile and radio described therein were in the actual possession of appellee who was the debtor’s wife; but who was living separate and apart from her husband; and residing with her father in McLean county. The appellant notified the appellee that it had a bill of sale for the property shortly after it had accepted it, and asked her to deliver the property therein described, but could not obtain the property from the appellee. While negotiations were going on with reference to that matter, the appellee on July 1, 1930, obtained a judgment note of her husband made to her for $2,222.20; and had an execution issued upon this judgment to the sheriff of Piatt county, which was levied on the property referred to on July 5, 1930; and the appellant thereupon gave notice to the sheriff of its claim to the property which resulted in the trial of the right of property mentioned. The court found that the title of the property was in the appellee and rendered judgment accordingly.

The appellant contends that under the evidence and the law the court should have found the title and right to the property in question in the appellant.

It is contended by the appellee that the bill of sale did not operate as a sale of the property to the appellant; that it is in effect a chattel mortgage, bnt as a chattel mortgage is not properly acknowledged and recorded so as to be valid as against the interest of appellee as a creditor.

It is also contended that the title to the property never passed by the bill of sale to the appellant because there was no delivery of the property. We are unable to agree with these contentions. The owner of personal property may convey title thereto to another person even though the property is'in the possession of a third person where the third person does not claim to own it. L. C. Smith & Bros. Typewriter Co. v. Blakemore, 183 Ill. App. 14. Where the property is in possession of a third party as bailee, notice to such bailee of the sale of the property is sufficient to work a change of the legal possession to the vendee; and in such case an actual delivery of the property to the vendee is unnecessary even against attaching creditors of the vendor. National Bank of Chambersburg v. Buckeye Iron & Brass Works, 46 Ill. App. 526; Hughes v. Stubblefield, 21 Ill. App. 216. Where property in the hands of a bailee is sold by the owner and the bailee notified of such sale, such notice will work a change of the legal possession into the hands of the vendee and the consent of the bailee is immaterial. Hodges v. Hurd, 47 Ill. 363. Under the terms of the bill of sale in question, there is an absolute transfer of the property described therein, and the title to the appellant. The transaction therefore amounts to a sale. St. Louis Iron & Machine Works v. Kimball, 53 Ill. App. 636. A deed or a bill of sale given in satisfaction of indebtedness, cannot be declared to be a mortgage. Osborne v. Morgan, 171 Ill. App. 549. Where it appears that a bill of sale was absolute on its face, it will require evidence of the clearest character to show that it was intended only as a mortgage. Purington v. Akhurst, 74 Ill. 490. The evidence in this case shows that the transfer of the property in question to the appellant was a bona fide sale; and that the appellee never claimed any ownership or title to the property in question, except as a judgment creditor; and that at the time of the execution of the bill of sale she held the property as the property of her husband, and she had knowledge of appellant’s title long before obtaining the judgment against her husband, under which the levy was made.

Under the facts proved, we conclude that her rights to the property as a judgment creditor were subject to the rights of the appellant as the rightful owner of the same. The judgment finding the title of the property in the appellee is therefore erroneous. The judgment is reversed and the cause remanded with directions to the court, to render a judgment that the right of property is in the appellant.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Edwards

license: Public Domain

text:
    State Bank of Prairie du Rocher, Illinois, Appellee, v. George Brown and Magdalena Brown, Appellants.

      Opinion filed October 30, 1931.
    C. B. Morrison and Whitnel & Browning, for appellants.
    R. E. G-auen and A. C. Bollinger, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On July 5, 1928, in the circuit court of Monroe county, a judgment by confession was entered in vacation, in favor of appellee and against appellants and Walter Brown, jointly, in the sum of $405.14 and costs.

On October 2, 1929, appellants filed their motion, which, according to its terms, was to ‘‘ set aside ’ ’ such judgment, and for leave to plead. Affidavits were filed in support of same. A supplemental motion was later filed, asking the same relief, together with additional affidavits. Appellants tendered pleas of the general issue, and a verified plea denying the execution of the note sued upon.

The affidavits, in substance, set forth that the note sued upon, as to appellants, was a forgery; that Walter Brown died on July 4, 1928, the day prior to the rendition of the judgment; that administration was had on his estate in the county court of Monroe county; that on October 1, 1929, same, by order of such court, was declared insolvent; that appellee had filed a claim based upon said note, and that the court ordered a dividend of 31 per cent paid on claims of the class to which it belonged, which amount was paid to appellee. That on the following day, or October 2, 1929, they filed their motion aforesaid; and that no execution, based on said judgment, had ever been served upon them.

Appellee filed a counter affidavit averring that about a week after the entry of such judgment, the attorney for appellants, who still appears for them in this court, stated to appellee’s attorney that it would not be necessary to issue execution upon the judgment, for the reason that same would be paid. That thereupon said attorneys went to the office of the circuit clerk to request that no execution issue, but being informed by the clerk that execution had been delivered to the sheriff, they together went to the office of the sheriff and requested that the execution be returned unserved, which was accordingly done.

Appellee moved the court to strike the additional affidavits. The court, by its order, struck such affidavits and denied the motion of appellants to set aside the judgment and grant leave to plead, and this appeal is for the purpose of reviewing such order of the trial court.

Appellants contend that Walter Brown being dead at the time the narration and cognovit were filed, the judgment was void as to him for want of jurisdiction, the power of attorney having been revoked by his death; that the judgment, being joint, was an entirety, and if void as to one defendant, was likewise void as to all.

Appellee insists that the judgment, as to appellants, was voidable; that they, by not filing their motion for nearly 15 months after entry of the judgment, and not excusing the delay, have been guilty of laches, and consequently are not entitled to relief.

If an action is begun against a person already dead, a judgment rendered therein is void, for want of jurisdiction. Claflin v. Dunne, 129 Ill. 241, 244. 33 Corpus Juris, page 1107. The fact of death may be shown by any interested party, as no judicial record can be created, which will estop a party in interest from showing that such defendant was dead when the suit was commenced. 15 R. C. L., page 620, sec. 59. The judgment as to Walter Brown was a nullity.

In Illinois, a joint judgment against several defendants, whether rendered in an action upon contract, or in tort, is a unit, and cannot be separated into parts. Seymour v. Richardson Fueling Co., 205 Ill. 77; Livak v. Chicago & Erie R. Co., 299 Ill. 218, 226. If execution issue upon such judgment, it must be against all of the defendants. Merrifield v. Western Cottage Piano and Organ Co., 238 Ill. 526, 531.

In those jurisdictions where a joint judgment against two or more defendants is regarded an entirety, and as such, indivisible, the judgment, if void as to one defendant, is held to be void as to all. Whit Oak Coal Co. v. Burns, 203 Ill. App. 434; Contakis v. Flavio, 221 Mass. 259, 108 N. E. 1045; Holbrook v. Murray, 5 Wend (N. Y.) 161, 162; Hanley v. Donoghue, 43 Am. Rep. (Md.) 554. Hence the judgment, being void as to Walter Brown, was likewise void as to appellants.

Appellee cites Aldrich v. Housh, 71 Ill. App. 607, as announcing a contrary rule. It will be found, upon examination of the opinion' therein, that the decision rested upon impressions rather than precedents, as indicated by the statement of the court: “No decision, either in Supreme or Appellate Courts, in this State, has been cited by any counsel in the case that we consider directly in point on this question, and we shall therefore reach our conclusion from analogies, and from our own conception of the justice of the case.” This case is apparently at variance with the current of authority on the question.

The judgment, being void, was subject to attack by motion, irrespective of the lapse of time; hence, appellants are not precluded, by laches, from moving" to set same aside. People v. Miller, 339 Ill. 573, 579.

In our opinion the trial court erred in striking the affidavits of appellants, and denying their motion to set aside the judgment, and for leave to plead.

The order is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice McSurely Mr. Justice Matchett

text:
    Hannah Frank, Appellee, v. Max Siegel et al., Appellants.
    Gen. No. 35,361.

      Matchett, J., dissenting.
    Opinion filed October 29, 1931.
    Rehearing denied November 12, 1931.
    William Feldman, for certain appellant.
    Mayer, Meyer, Austrian & Platt, for appellee; M. Paul Noyes, of counsel.
   Mr. Justice McSurely

delivered' the opinion of the court.

This is an appeal by defendants from an interlocutory order appointing a receiver of the mortgaged premises in a foreclosure proceeding. Complainant’s motion for the appointment was based upon provisions of the deed of trust and upon the allegations of the bill of a default in payment of the indebtedness. The trust deed provides that, in case of default in any of the indebtedness secured thereby, the legal holder of the notes shall have the right, upon filing a bill to foreclose without regard to the solvency or insolvency of the debtor and without regard to the “then value of said premises” or whether occupied by the owner of the equity as a homestead, to have a receiver appointed with power to collect the rent of the premises during the pendency of the foreclosure suit and during the full 15 months’ period of redemption, if there is a deficiency.

The bill alleges that the trust deed was given to secure four principal notes aggregating $13,500, three being for $1,000 each and the fourth for $10,500, the last payable on August 15, 1931; that the first two notes were paid and partial payments made on the third, leaving $100 due, and that no payments have been made on the interest note for $315, which matured February 15,1931, or on the principal note for $10,500, and that by reason thereof complainant has elected to declare the entire principal due together with interest thereon. The bill also alleged that the premises are commonly known as Number 817 Milwaukee avenue, Chicago, and are improved with a three-story brick building containing a store on the first floor, occupied by one of the defendants, and rooms on the second and third floors leased for lodging house purposes and that “said premises are meagre and scant security for the moneys due the complainant.”

Defendants say that this latter allegation is merely a conclusion and of no evidentiary value and argue that facts should be shown which would justify the appointment of a receiver and that no such facts were presented. Complainant insists that the receiver was properly appointed, “irrespective of the value of the land, whether it was, as alleged, scant security for the mortgage debt or was then worth, if you please, twice the amount of that debt.”

The issue is thus squarely presented whether a chancellor in such a proceeding should appoint a receiver solely upon the averment in the bill that there is a default in payment of the indebtedness, and that the trust deed conveys the rents and profits as part of the security and authorizes such an appointment upon default.

Complainant presents respectable precedents for his position. Oakford v. Robinson, 48 Ill. App. 270, in which there was a deficiency decree; Niccolls v. Peninsular Stove Co., 48 Ill. App. 317; Loughridge v. Haugan, 79 Ill. App. 644; Ryan v. Illinois Trust & Savings Bank, 100 Ill. App. 251; Ortengren v. Rice, 104 Ill. App. 428; McLester v. Rose, 104 Ill. App. 433. In Townsend v. Wilson, 155 Ill. App. 303, it was said that complainant was entitled as a matter of right to the appointment of a receiver, although in this case the premises went to a sale under a decree which found that the security was scant and there was a deficiency decree. The controversy arose between the deficiency creditor and the redemptors of the land as to which was entitled to the rents in the hands of the receiver up to the period of redemption. In Owsley v. Neeves, 179 Ill. App. 61, the sole question was whether the court properly ordered the rents paid to satisfy a deficiency judgment. In Bolton v. Starr, 223 Ill. App. 39, it was decided that the money in the hands of the receiver should he applied to satisfy a deficiency decree. In Greenebaum Sons Bank & Trust Co. v. Kingsbury, 248 Ill. App. 321, the crucial question was whether a mortgagor who had conveyed the rents as security could by making a lease of the premises prior to his default abridge the rights of the mortgagee or the receiver in possession after default by the act of making the lease. A similar point was decided in Rohrer v. Deatherage, 336 Ill. 450, where it was held that the mortgagor could not make a lease of the mortgaged premises which would interfere with the rights of the mortgagee to enter for condition broken. Thus we see that in many of the cases cited by complainant the crucial questions presented were not the single question presented here.

There is a large number of cases holding that the provisions in the trust dqed for a receiver do not control. An early case was Degener v. Stiles, 6 N. Y. S. 474, where the court made the very pertinent statement that the claim of complainant seeking a receiver by virtue of the provisions of the trust deed authorizing such appointment in a foreclosure proceeding “seems to be that a court of equity is bound to decree specific performance of every contract which may be entered into between parties, no matter whether it appears from the facts of the particular case that it is inequitable or unconscionable so to do or not.” This case was quoted with approval in Brick v. Hornbech, 43 N. Y. S. 301, where it was said:

“Unless the land is inadequate security, the appointment of a receiver is an unnecessary annoyance and hardship. ... In the case of a clause in a real estate mortgage for the appointment of a receiver upon default, the court is not obliged to comply with it. . . . Parties may not, by contract, impose an obligation upon courts in such a respect. Extraordinary remedies are not resorted to, unless required. It is for the court, in every instance, to determine whether it should take upon itself such a trust, and whether it should do so depends upon whether it is necessary for the security or protection of the mortgagee.”

Iii Aetna Life Ins. Co. v. Broeker, 166 Ind. 576, the court said:

“The appointment of a receiver is a remedy; it is a part of the procedure of courts of chancery to conserve and enforce equitable rights, but it is not an equity in itself, and parties cannot bargain concerning the exercise,*of the jurisdiction. Such provisions, no doubt, may be entitled to some weight upon the application, but a court of equity will not enforce them where it would be inequitable or unconscionable so to do,” citing a large number of cases.

In Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76, after saying that the effect of the provisions of the trust deed conveying the rents was to pledge them for the payment of the debt as fully as the property itself and that to make this pledge effectual the appointment of a receiver to collect them was properly stipulated for, the court further said:

“It is not meant, however, to be said that a court of equity will appoint a receiver simply because such appointment is stipulated for in the mortgage. The court is not bound to enforce such a provision where it is not necessary to enforce the lien on the rents and profits for the payment of the mortgage debt. But it has been held that such an agreement in the mortgage is entitled to weight in determining whether the power of the court to make the appointment should be exercised or not. (Keogh Manf. Co. v. Whiston, 14 N. Y. S. 344.)” The opinion then gave consideration to the pledge of the rents and the stipulation for the appointment of the receiver and held that there was an uncertainty as to whether the property would bring a sufficient amount at the foreclosure sale to satisfy the debt and in view of the fact that the mortgagors had failed to keep the buildings insured, as they had agreed, and in view of the large accumulation of unpaid interest, if was held that the appointment of the receiver was proper.

In this court we have repeatedly held that the pledge of the rents in the trust deed is not conclusive upon the chancellor upon the application for the appointment of a receiver; that while it is entitled to weight, all the equities of the case should be considered and that it would be contrary to the nature of a court of equity to enforce the exact letter of the contract of mortgage regardless of the necessities or equities involved. Bothman v. Lindstrom, 221 Ill. App. 262; Grabowski v. MacLaskey, 257 Ill. App. 484; Chicago Title & Trust Co. v. McDowell, 257 Ill. App. 492; Reliance Bank & Trust Co. v. Skamski, 262 Ill. App. 629 (abst.); Thomas v. Damond, 262 Ill. App. 644 (abst.).

We conclude that, as a court of equity will not enforce specific performance of every contract regardless of whether or' not so to do would be unconscionable, so the provisions of a trust deed for the appointment of a receiver should not be enforced unless equitable considerations so require; that the request for a receiver is an appeal to the conscience of the court and not a demand based upon any agreement of parties purporting to restrict the discretion of the chancellor. The possession of a receiver is the possession of the court and parties cannot by contract impose this burden of administration upon the chancellor regardless of the necessities of the situation.

It follows from what we have said, that the burden of showing to the court facts which would justify the appointment of a receiver is upon the complainant. By the ancient practice of chancery in England a receiver was not appointed until after the coming in of the defendant’s answer. This was for the purpose of enabling the court to weigh the respective claims as to the circumstances. Later this practice was changed, but it was held that there must be strict and special reasons for the appointment before answer, such as immediate danger to the property. It is now the settled practice in England and in many jurisdictions in this country that a receiver may be appointed before answer where complainant can satisfy the court that there is a clear proof of the exigency of the particular case. 53 C. J. 56. Consonant with this it was said in Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103: “Application for the appointment of a receiver is addressed to the sound legal discretion of the court. It is a high and extraordinary remedy. The power is not arbitrary and should be exercised with caution and only where the court is satisfied there is imminent danger of loss if it is not exercised. The general rule is that the applicant must show . . . that the property itself, or the income arising from it, is in danger of loss from neglect, waste, misconduct or insolvency,” citing several cases. To the same effect is Aetna Life Ins. Co. v. Broeker, 166 Ind. 576, where it was held that to justify the appointment of a receiver pendente lite, “the mortgagee must show” that the premises are insufficient to secure the payment of the mortgage debt.

It is inherent in the very nature of the proceeding that the applicant for a receiver must first show the necessity for such appointment. It would be a controversion of well settled rules to require the defendant in the first instance to show that the necessity did not exist.

For the reasons indicated we hold that the receiver in this cause was improvidently appointed and the order is therefore reversed.

Reversed.

O’Cohhor, P. J., concurs.

Mr. Justice Matchett

dissenting: I agree with what is said in the foregoing opinion as to the application for receiver being addressed to the sound legal discretion of the court, that it is a high and extraordinary remedy to be exercised. with care and caution. It should never be used as a means of oppression, but where, as here, the mortgagor conveys the rents, issues and profits as additional security, where it is made to appear that a substantial default in payment of principal and interest has been made, and that the mortgagor has conveyed to a third party the equity of redemption, and where such holder is collecting the rents and profits which have been so assigned as secured, it seems obvious to me that unless a receiver is appointed to collect the rents, the same will be dissipated, the security taken destroyed and the contract of the parties practically abrogated. I think that where such a showing is made it is then for the defendant to present to the court facts, if such facts exist, which will satisfy the court that the appointment of a receiver is inequitable. Defendants here did not do this. They had notice, but they did not appear. The holder of the equity in this case is not the mortgagor but is one to whom the mortgagor has conveyed and who now under this ruling, although he did not appear to object after notice, is to be allowed to take the rents which his predecessor had pledged to secure the indebtedness. I cannot see equity in this nor facts which could appeal to a court of conscience. On the' contrary, it seems to me that the ruling adopted gives opportunity to the speculator on the equity to get that to which he has no right either at law or in equity.

Justices of the Appellate Court specially concurring: We concur in the holding of the majority opinion that, even though the trust deed conveys the rents and profits as security and provides that a receiver of the premises may be appointed upon default in the payment of any of the indebtedness, a receiver should not be appointed solely upon the allegations of a bill to foreclose that there is such a default and a general allegation that the security is scant.

We also concur in the holding that the burden is upon the applicant for a receiver to present facts by verified bill, petition or by evidence showing the necessity for such an appointment.

Martin M. G-ridley

Kickham Scanlan

Otto Keener

Hugo M. Friend

Francis S. Wilson

Oscar Hebel.


author: Mr. Presiding Justice O ’Connor

text:
    Marian McDermott, Appellee, v. McKeown Transportation Company, Appellant.
    Gen. No. 35,164.

      Opinion filed November 9, 1931.
    Rehearing denied November 23, 1931.
    John A. Bloomingston, for appellant.
    Jam:es L. Bynum, for appellee.
   Mr. Presiding Justice O ’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover damages for personal injuries claimed to have been sustained by her on account of the defendant’s negligence in failing to have a rear light on one of its trucks, as a result of which an automobile in which plaintiff was riding crashed into the rear end of the truck, injuring plaintiff. There was a jury trial and a verdict and judgment in plaintiff’s favor for $5,750, and the defendant appeals.

The record discloses that plaintiff, a woman about 20 years of age, and two young men, were riding in a Ford automobile driven by one of the men from plaintiff’s home in Wilmette to a party to be held in Evans-ton. They were proceeding south at about 18 or 20 miles an hour in Railroad avenue, a north and south street, when the front end of the Ford struck the rear end of defendant’s truck, which was also being driven south in Railroad avenue, and plaintiff was severely injured. The accident occurred about nine o’clock p. m., May 13,1926. The Northwestern railroad tracks run along the east side of Railroad avenue, the tracks being on an elevated embankment about 25 feet high. Along the west side was a row of trees with heavy foliage. The night was dark, misty and foggy; there was one windshield wiper in front of the driver which was being operated on account of the fog and mist. Plaintiff sat in the middle of the front seat of the Ford car between the two men and she testified that just before the accident the automobile was traveling about 15 miles an hour as they went south in Railroad avenue; that the “night was misty, rainy, foggy, and the fog got heavier as we got towards Evanston”; that the “windshield was so full of water and all splashed up, that you could hardly see, with the rain and moisture in the air. I couldn’t see even through the windshield”; that from the time they left her home until the accident she didn’t say anything to the driver or the other boy with reference to how the car was being driven; that she didn’t know a truck or anything was in front of them until the collision.

Lloyd Schreck, the young man who was driving the Ford, testified that he was going from 18 to 20 miles an hour; that Railroad avenue was ‘ decidedly foggy; you could hardly see at all. . . . As I drove along Railroad avenue you couldn’t hardly see anything it was so dense in there, just like a tunnel, you might say, going all along there, on account of the embankment on the east side and the trees on the west side”; that he had his headlights on and that he could see only about eight or ten feet ahead; that there were some arc lights in the street but they gave practically no light 11 on account of the fog. It didn’t penetrate at all”; that when he first saw the truck it was five or six feet ahead of him; that he didn’t see any rear light on the truck; that as soon as he saw the truck he endeavored to stop but was unable to do so.

There is other evidence a.s to the condition of the weather at the time in question to the same effect. The evidence further shows that the truck in question was in charge of two men, a driver and his helper; they had been delivering" merchandise, the last delivery having been made in Wilmette about five or ten minutes before the accident and that the speed of the truck at the time in question was about ten miles an hour. The evidence further shows that a kerosene lamp was attached underneath the rear end of the truck which was struck and damaged by the impact with the Ford. There is further evidence to the effect that the lamp was a comparatively new one in good condition and that it was lit when it began to get dark about two hours before the accident. The helper testified that when he made the last delivery in Wilmette about five minutes before the accident, the lamp was lit, and threw a red light to the rear and a white light to one side.

The case was tried on the theory that there was an absolute legal duty on defendant to maintain a red light on the rear of the truck, as required by the statute, Cahill’s St. ch. 95a, f[ 17, if defendant would relieve itself from liability in case one were injured on account of there being no red light, and this is the contention of plaintiff. An instruction was given in the language of the statute, that “When upon any public highway in this State, during the period from one hour after sunset to sunrise, . . . each motor vehicle or trailer shall also exhibit at least one lighted lamp which shall be so situated as to throw a red light visible in the reverse direction.” But we think the law is not so unreasonable that there might not be circumstances which would relieve one from liability in case the rear light suddenly went out. Toledo, Wabash & Western Ry. Co. v. Beggs, 85 Ill. 80; People v. Kastings, 307 Ill. 92; Berkovitz v. American River Gravel Co., 191 Cal. 195; Yates v. Brazelton (Cal. App.), 291 Pac. 695.

In the Beggs case a judgment in a personal injury case was reversed and it was held that the breaking of a wheel on a coach of a railroad train which had been made by skillful manufacturers and had been thoroughly tested, would not render the railroad liable for negligence. The court said (p. 83): “The defect in the car wheel was not discoverable by the usual and proper tests, and, on the authority of Illinois Central Railroad Co. v. Phillips, 49 Ill. 234, we must hold the company, under the proof in this record, not liable. That the car wheel broke when in operation, raising the presumption of negligence in the corporation, is admitted, but that presumption is overcome by showing the wheel was the work of one of the most skillful manufacturers in the United States; that it was of the kind usually employed in the service, and had been subjected to and withstood the usual tests.”

In the Kastings case it was charged that the defendant unlawfully operated a taxicab without having complied with certain sections of’the Motor Vehicle Act, Cahill’s St. ch. 95a, H 44 et seq. He was fined $100 and costs. On appeal the judgment was reversed. The court said (p. 106): “It will be noticed also that the taxicab owner who gives a bond as surety is by the act not only made liable in damages for injury to persons and property by negligent operation of his machine, but is also held liable for such damages as occur by reason of the defective construction of his taxicab. . . . The clause making the taxicab owner liable for injury by reason of the defective condition of his taxicab virtually makes him an insurer in that particular.” The court then referred to the Beggs case, supra, and other authorities, and continuing said (p. 107): “In Daugherty v. Thomas, 45 L. R. A. (N. S.) 699, it is laid down by the Supreme Court of Michigan as a general proposition that absolute liability, without fault on his part, cannot ordinarily be imposed upon a citizen, because it deprives him of property without due process of law. ’ ’

In the Berhovits case, supra, plaintiff recovered damages for personal injuries on account of the claimed negligence of the defendant in driving a motor truck on a public highway at night without ‘ ‘ a tail light or any light whatsoever on the rear of said truck. ’ ’ In that case, at about two o ’clock in the morning, plaintiff and other persons were traveling in a Dodge touring car on a public street in Sacramento, when the car crashed into the rear of an automobile truck traveling in the same direction. The automobile was damaged beyond repair, one of the men riding in it was killed and the plaintiff severely injured. The evidence was sharply conflicting as to whether the tail light on the truck was burning at the time of the accident. It was a coal-oil lamp, the type used for such lights. Some witnesses testified that they passed the truck shortly before the accident and the rear light was not burning. The driver of the truck testified that shortly before the accident he got off the truck and saw that the tail light was burning. The court instructed the jury that the statute of the State required a red light on the rear of trucks, and that if the jury believed the lamp was not lit at the time of the accident, defendant was guilty of negligence. The court said that this was a correct statement of the law in most cases where the violation of a statute was charged, and continuing said (p. 198): “By the exercise of ordinary care, the driver of a motor vehicle at night would always know whether the headlights were burning and in such a case instruction No. 5 would be strictly accurate. The tail light, however, is not in the immediate view of the driver, whose attention is ordinarily directed ahead, and it cannot be the intention of the law that a watchman must be maintained over the rear light to observe whether it is constantly burning. It is well known that with the best of care coal-oil lights, as well as electric lights, sometimes go out. If one drives a motor vehicle in the nighttime when he knows, or in the exercise of ordinary care ought to know, that the tail light is not burning, he is guilty of negligence. While ignorance of the law is no excuse, ignorance of the fact, where ordinary care has been exercised, is a sufficient excuse. Violation of an ordinance ‘is presumptively an act of negligence and conclusively so until rebutted by evidence that it was justifiable or excusable under the circumstances. ’ ”

In the instant case we think the theory of the defendant must be sustained. It would not be liable even if the rear light was not lit at the time of the accident, if the jury believed from the evidence that such failure was occasioned without negligence on defendant’s part.

We are also of the opinion that the finding of the jury in favor of the plaintiff, to the effect that plaintiff was guilty of no negligence, is against the manifest weight of the evidence. The undisputed evidence is that it was dark, misty and foggy and that this condition was obvious to plaintiff, yet she never did or said anything to the driver of the automobile in which she was riding as to the speed at which the automobile was being driven — no remonstrance or objection of any kind; and we think that under the law of this State, if plaintiff would free herself from negligence, she should have done something or complained to the driver that he was driving too fast under the circumstances, because, under the law, she could not recover unless she were in the exercise of due care. Pienta v. Chicago City Ry. Co., 284 Ill. 246; Opp v. Pryor, 294 Ill. 538. In the Pienta ease the plaintiff was injured as the result of a collision between a street car and a wagon in which he was riding on a public street in Chicago, and it was held that the negligence of the driver of the wagon was not imputable to plaintiff, who was on the wagon assisting in making deliveries; but it was also held that it was the duty of the plaintiff, where he had an opportunity to learn of danger and to avoid it, to warn the driver of the vehicle; that “The passenger has no right, because someone else is driving the vehicle, to omit reasonable and prudent effort on his part to avoid the danger.” And it wras held error for the court to refuse to give an instruction by which it was sought to tell the jury that it was the duty of the plaintiff to warn the driver of the wagon of the danger as soon as it was apparent to plaintiff.

In the Opp case it was held that one who was riding in an automobile as a guest of the driver is not relieved of the duty to exercise ordinary care where the guest has equal opportunity with the driver to observe the danger. In that case plaintiff was riding in an automobile as a guest of the driver in Lafayette, Indiana, and as they were crossing the railroad track a freight train, backing out with little or no lights, struck the automobile, injuring plaintiff. The evidence showed that the plaintiff was in as guod, if not better, position than the driver to have seen the train, and that she did not do anything in connection with the driving at all. The court held that before plaintiff could recover she must show that she was in the exercise of ordinary care for her own safety, and that it was her duty, under the circumstances, to observe the danger and, if practicable, warn the driver. The judgment in her favor was reversed because of faulty instructions on this point.

In the instant case it is obvious to anyone that it was extremely dangerous to drive the Ford automobile at 18 or 20 miles an hour through such mist and fog. Automobile lights will not penetrate in such a sitúation, and the testimony of the driver here is that he could not see more than 8 or 10 feet ahead of the Ford. And while the negligence of the driver is not imputable to the plaintiff, yet, before she can recover she must show that she was in the exercise of due care for her own safety.

For the reasons stated the judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

HcSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O’Connor

text:
    Oscar H. Haugan, Appellee, v. Israel Carr et al., Defendants. Appeal of Hyman Levin and Annie Levin, his Wife, from Interlocutory Order Appointing Receiver, Appellants.
    Gen. No. 35,607.

      Opinion filed November 9, 1931.

      Holland & Shuchter, for appellants; Samuel H. Holland and Irving Zimmerman, of counsel.
    Miller, Gorham & Wales and Anderson & Anderson, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants, Hyman Levin and his wife, seek to reverse an order entered by the circuit court of Cook county, appointing a receiver in a foreclosure suit. Their contentions are (1) that complainant did not serve them with a notice of his intention to accelerate the payment of some of the unmatured bonds as provided in the trust deed; (2) that there was no sufficient showing that the property was scant security for the indebtedness; and (3) that the receiver’s bond was filed before the bond of the complainant. The receiver was appointed on the verified bill and a verified petition.

The bill was filed January 15, 1931, to foreclose a ■ trust deed dated April 1, 1926, given by Levin and his wife to secure an issue of $60,000 bonds, part of them maturing April 1, 1928, and annually thereafter until 1933. From the bill and petition it appears that 18 of the bonds, aggregating $9,000, were paid as they fell due; that on October 1, 1930, there was a default in payment of interest of $615.92; that on April 1, 1931, $3,000 of the principal and $1,530 interest fell due and that there was paid on account of these sums $1,150,' leaving a balance due on that date of $3,380; that the general taxes for 1928, amounting to $1,612.42 were unpaid; that the 1929 taxes were due and unpaid; that there were two trust deeds on the property given to secure an indebtedness aggregating $20,000, which were subsequent to complainant’s lien, and a judgment of $1,000 against the defendant, Carr, the owner of the equity of redemption, the property having been conveyed to him after the making of the trust deed in the instant case; that to protect the lien, complainant would be required to pay taxes and assessments against the property, fire insurance premiums and mechanics’ lien claims, costs and solicitors’ fees; that the premises are improved with a one-story brick garage, having a capacity of 150 cars and were occupied by a tenant who was paying a rental of $600 a month; that the value of the property did not exceed $60,000; that the trust deed provided that upon default a receiver might be appointed without regard to the solvency or insolvency of anyone liable for the indebtedness and without regard to the value of the premises. The trust deed further provided that in case of default in the payment of any of the bonds or interest and such default should continue for a period of 30 days, the trustee might “by notice in writing to the mortgagors declare the principal of all bonds . . . to be due and payable immediately.” It further provided that “All the covenants, promises, undertakings and agfeements . . . by or on behalf of the mortgagors, shall be binding upon the legal representatives and assigns, whether so expressed or not”; that the term “mortgagor” should include and mean “all legal representatives and assigns” of the mortgagors.

The record further discloses that at the time the bill was filed, July 15, 1931, complainant caused to be filed an affidavit of nonresidence in which affiant swears that the defendants, Hyman Levin and Annie Levin, his wife, on due and diligent inquiry, could not be found, so that'process could not be served upon them, and that upon due and diligent inquiry their place of residence could not be ascertained, and that their last known place of residence was 1236 Columbia avenue, Chicago. And there is also in the record proof that publication was made to obtain service on Levin and his wife, and that the clerk of the court sent to them by registered mail at 1236 Columbia avenue such notice, and that the letters were returned to the clerk, the postal authorities having been unable to find them.

July 16,1931, complainant caused notice to be served on the defendant, Carr, the owner of the equity, that on the following day, July 17, complainant would ask for the appointment of a receiver, and on the same day the written Appearance of Carr, Levin and his wife was filed by their solicitors, Holland and Shuchter, and that on that day an order was entered, on motion of the solicitor- for defendant, Carr, continuing complainant’s motion for the appointment of a receiver to July 29. On July 29, an order was entered, on motion of the solicitor for complainant, continuing the’ motion for the appointment of the receiver to July 31. This order recites that it was entered by agreement of the parties, and on July 31, the order appointing the receiver was entered.

The order recites inter alia that the motion was fully argued by counsel and the court finds that it was necessary for the preservation and conservation and proper management of the property that a receiver should be appointed; that the premises were scant and insufficient security for the payment of the indebtedness secured by the trust deed; that the fair, reasonable market value of the premises was less than the amount of the indebtedness and unpaid taxes and that it was necessary to resort to the rents and profits in order to satisfy the indebtedness.

The court required the complainant to file a bond in the sum of $500, and the receiver a bond in the sum of $5,000. The bond of the receiver was filed and approved August 6, and the bond of the complainant filed and approved August 11. The trust deed pledged the rents, issues and profits of the premises for the payment of the debt secured by the trust deed.

It will be noted that the defendant, Carr, the owner of the equity of redemption, does not appeal from the order appointing the receiver. The appeal is prosecuted only by the defendant, Hyman Levin, who executed the bonds, and his wife, who signed the trust deed.

The contention of the Levins is that the election of the complainant to accelerate the payment of some of the bonds was unavailing because complainant did not serve the Levins, the mortgagors, with a notice of complainant’s intention to declare the unmatured bonds due and payable as the trust deed required. The trust deed provides that the trustee may accelerate the payment of any unmatured bonds where there has been a default of 30 days, by giving a written notice to the mortgagors of his intention so to do. And it further provides that the term “mortgagors” shall include the mortgagors’ assigns; and the record discloses that the complainant was unable to find the Levins and that he did serve notice on the defendant, Carr, the owner of the equity. In these circumstances, we think the notice was sufficient to authorize the court to appoint a receiver. Whether the Levins will have any defense to the suit on its merits on account of the failure to give them notice, is a matter not before us. Moreover, we think the Levins ought not be heard to complain of the appointment of the receiver on the ground that they were not given the notice required by the trust deed for the reason that they, by their solicitors, entered their appearance on July 17. The motion for the appointment of the receiver was continued on two occasions after that day, once on motion of the solicitors for the Levins and Carr, and the receiver was not appointed until July 31. It therefore affirmatively appears that the Levins were apprised of the fact that complainant was seeking to have a receiver appointed, and the record fails to disclose that they made any objection. If they had objected that there was no showing made that they had been given the notice required by the trust deed, it might be that the bill would have been amended or such showing otherwise made.

Where a motion is made for the appointment of a receiver in a foreclosure suit, and the proper parties have been notified of such application, we think it proper practice to require those who opposed the appointment to specify their objections, so that the court could pass upon them and to permit the complainant to obviate such objections if he were able to do so; and in case a receiver were appointed and an appeal prosecuted, the opposing parties should be confined to the points thus made. The purpose of reviewing a decision of the trial court on appeal is to review the decision of the trial court and points not there urged ought not to be presented on review except those that go to the question of the court’s jurisdiction. Fisher v. City of Chicago, 213 Ill. 268; People v. Meerts, 267 Ill. 210. The holding in these cases we think analogous here.

In the Fisher case the court said, p. 270: “An appeal is allowed for the purpose of reviewing the decision of the county court upon objections filed, and if that court has jurisdiction of the subject matter, the party appearing there must present his objections to that court. Objections must be made in such manner as to show the point on which a decision is asked, arid to enable the opposite party to obviate the objection, if it can be done. The county court is not charged with the duty of searching for objections which are not pointed out, and an objection not made in that court must be regarded as waived, and cannot be made for the first time on appeal to this court. ’ ’

In equity and good conscience we think the Levins, having been before the court by their solicitors long before the receiver was appointed, and having made no objection, they ought not now be heard to complain that there was no showing that notice had been given to them. A court of equity does not look with favor upon such procedure.

Nor do we think there is any merit in the Levins’ contention that the receiver was erroneously appointed because there was not sufficient showing that the property was scant security for the indebtedness. Just how the Levins could be injured by the appointment of the receiver on the ground that the property was scant security, we are unable to comprehend, and it is elementary that unless they would be injured on this ground they cannot complain in a court of chancery. The trust deed pledged the rents and profits as well as the property for the payment of the indebtedness and by the appointment of the receiver the rents would go towards the reduction of the debt, which would be of benefit to the Levins. Further, it appears that'there was a default in payment of interest October 1, 1930 ; that $3,380 more was due April 1, 1931, which included principal and interest; the taxes for 1928, 1929, amounting to more than $1,600 a year were unpaid; and that the property was not worth more than $60,000. There was about $60,000 due under the terms of the trust deed, and in view of the specific pledge of the rents and profits, and the stipulation of the appointment of the receiver in the trust deed, and in view of the uncertainty as to whether, at the foreclosure sale the property would bring in an amount sufficient to satisfy the debt, we think the appointment was warranted. Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76. The fact that the complainant’s bond was not filed until a few days after the receiver’s bond was filed, is a mere irregularity of no consequence.

The order of the circuit court of Cook county is affirmed.

Affirmed.

McSurely and Hatchett, JJ., concur.'.


author: Mr. Justice Matchett

text:
    Albina Charbonneau, Appellant, v. Wray S. Norton, Appellee.
    Gen. No. 35,140.

      McSurely, J., dissenting.
    Opinion filed November 9, 1931.
    Welch & Hoffman, for appellant.
    Babcock, Worthy & Gtlruth, for appellee; Charles H. Chapman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action on contract for money claimed to be due for the support, maintenance and education of defendant’s infant children, Dorothy Norton and Helen Wray Norton, there was a trial by the court, a finding for plaintiff in the sum of $125, with judgment thereon, from which plaintiff has perfected this appeal, claiming that she ■ is entitled to a judgment for a larger amount.

The undisputed evidence tends to show that plaintiff did support, maintain and educate these infant children, who were respectively two and ten years of age at the time she received them, from March 1, 1924, until July 15, 1925.

By way of defense the affidavit of merits averred that defendant demanded the custody of the children and advised plaintiff that he would not pay for the maintenance and support of the children at her home; that plaintiff refused to give up the children to him, although he often demanded the custody of them; that after that time the children were held under the dominion of plaintiff against defendant’s will; that he was therefore not liable.

The material facts appear to be as follows: Defendant and Mary Louise Norton were married January 13, 1912, and Dorothy and Helen Wray were the only children born of that marriage. Dorothy was born September 9, 1914, and Helen January 29, 1922. Defendant ceased to live with his wife as her husband in 1921, and did not thereafter live with her. She died March 10, 1924. Prior to her death, and on or about July 31, 1923, she filed a bill for divorce in the circuit court of Cook county, Illinois, averring desertion, praying for a divorce, etc. Defendant was served by publication. December 6,1923, a decree of divorce was entered in the case which awarded the care and custody of these minor children to their mother, Mary Louise Norton. Ten days prior to her death and on the day she was taken to the hospital, she gave these two infant children into the custody of her sister, the plaintiff in this case. Plaintiff worked for a salary in a store and employed her mother, the grandmother of the children, to care for them in her absence. They were sent to school and were clothed at plaintiff’s expense.

Defendant says that he visited the children during the period from March 1, 1924, to July 15, 1925, about 15 to 20 times; that the children did not appear to be clothed to his satisfaction, but that he did not complain about that and he did not refuse to permit them to live there by taking them away; that he is a stock and bond broker earning from $300 to $400 a month. He testifies that after the death of the mother in the early part of May, 1924, when it first came to his knowledge that the children were with plaintiff, he went to plaintiff’s home and had a conversation with her in the presence of John J. Hickey, Mrs. Charbonneau, Mrs. Chalifoux, Mrs. Bennett and Ms daughters; that he told plaintiff he wanted to take the children home; that she replied nobody was going to take the children and that the mother had willed them to her; that he stated that was “quite foolish,” that it was not possible to will children. Defendant’s testimony is further: “She (plaintiff) said, ‘You are not going to take these children; she willed them to me and I am going to keep them. ’ I (defendant) said, ‘I want to take these children home and take care of them, that is what I came here for.’ She said, ‘You will not take them out of here. You abused and were mean to my sister, and I am not going to allow them to go.’ I said, ‘You and I have no quarrel. If that is the way you feel about it, I probably will have to take some further steps.’ I spoke to the children about not to be afraid. ’ ’

Defendant says he went back to plaintiff’s home in the middle of the same week and had a conversation with plaintiff when no one else was present; that he told her he wanted to take the children home, and he had refused for three consecutive years to support the children “in the conditions in which they should not be,” as he saw it; that plaintiff said, “they are willed to me and I am going to keep them. ’ ’ Defendant says that at the time he spoke of a previous situation he had relative to the children; that the governor of Indiana would not permit him to be extradited because of the conditions in which the children were being kept and because he refused to support them in those conditions.

Defendant further testified that he afterwards returned several times, and some time after September he told plaintiff that he came to get the children and that she did not have the equipment to take care of them; that then for the first time she told him that she wanted money for the care of the children, and that he again said to her that he would not support the children there when they were being kept against his wishes; that she said she was going to keep them and he was going to pay her for it, and if he paid her he could have them; that she followed him when he went on the porch and kept screaming, “Pay your debts and you can get your children. ’ ’

These conversations and interviews are denied by plaintiff, Mrs. Charbonneau, who says that defendant never asked that she return the children and never asked about the condition of the children; that she saw him about June 10, 1925, and that she did not see him from that time until the children went with him in July; that as a matter of fact, while she was employed during the day he would come and get the children and promise them care; that she never stopped them from going with him; that as a matter of fact the children went with their father voluntarily when they left for defendant’s home.

Dorothy testified that her father came to see her about six weeks after her mother’s death and talked with plaintiff; that he said he came to get the children but that plaintiff sgid they were to stay, with her; that defendant said to her in the presence of her aunt, “When you children are ready to come, let me know.” She said her father came to see her after that time; that on one occasion he said he came to take the children and that her aunt wanted him to pay $125; that plaintiff did not say the exact amount of money she wanted but she wanted money for taking care of the children; that her father said he would not pay for it; that her aunt said the children were to stay with her, and “Dad asked me if I wanted to come, but I didn’t say”; that her father afterwards came to the house in response to a telephone call from her, and at that time “We were all ready to go.” They were then taken to the home of defendant’s mother, 213 North Austin boulevard. When asked what caused her to pack up, Dorothy answered, “My aunt asked me if I would want to go live with my father. I left my aunt to go to my father.” She says that her wish to go to her father did not grow out of her own mind, but her aunt told her that if she wanted to go to her father she could do so. She says, “I called my grandmother and my father came over. ’ ’ She further says that her father told her twice that whenever she wanted to live with him to let him know; that she was not forced to stay with her aunt; that her father gave her spending money when he came.

No propositions of law or of fact were submitted to the court, and we are left in some doubt as to the theory upon which the trial judge made the finding and entered the judgment showm by the record. The evidence submitted by plaintiff as to the value of the maintenance and service provided for these children is not disputed. It would seem that if defendant was to be held liable at all it should have been for a larger amount. However, the finding may have been based upon the theory that defendant was liable up to the time he made a demand for the children and that thereafter he was not liable. Defendant has cited a large number of authorities, all of which we think are quite easily distinguished upon the facts.

There is no doubt of the general rules of law applicable to such cases. The duty of a parent to support and maintain his own children is a primary and natural obligation which, fortunately, is usually fulfilled without resort to courts of law. When the father complies with that obligation, obviously he is not liable to any other person who has furnished support without his consent. Obviously also, in the first instance he has the right to determine the kind and character of support and maintenance which will be furnished, and no other person has any right to determine that question for him; nor is he obligated to pay for services and maintenance rendered by others to his children under such circumstances. However, where a parent wholly fails and refuses to furnish necessary support to his infant child, the law will imply a promise on his part to reimburse anyone who renders support and maintenance. Defendant has cited a number of cases, such as Witzmann v. Koerber, 28 Ill. App. 174, and Chilcott v. Trimble, 13 Barb. 502, where it was held in substance that if a plaintiff who had stood in loco parentis to an infant desired to determine that relationship, he should tender the child or give notice of his intention; Johnson v. Smallwood, 88 Ill. 73, where the question at issue was whether a father was bound by the contract of an infant for necessaries, and it was held that under the circumstances appearing he was not; Brush v. Blanchard, 18 Ill. 46, where a stepfather who had received the son of his wife into the family, standing in the position of loco parentis, was held not liable to pay for the services of the minor; and Thorp v. Bateman, 37 Mich. 68, and Fetrow v. Krause, 61 Ill. App. 238, which announce the general rule that where the relationship between the minor and the person with whom he lives is that of loco parentis, the minor may not maintain suit for his services, nor may the person taking the place of the parent, or the estate of the person standing in such relationship, be held liable for support. Hunt v. Thompson, 4 Ill. (3 Scam.) 179, and Schnuckle v. Bierman, 89 Ill. 454, are also cited, but these cases announce the general rules which have heretofore been stated. On the other hand, plaintiff, relies upon the rule as stated in 46 Corpus Juris 1262:

“It is a necessary consequence of the duty to support the child that the parent may, in a proper case, be held liable for necessaries furnished to the child by a third person, whether they are procured by the child or by the mother; and the mother has the same right as a stranger to recover from the father for necessaries furnished by her to the child, in the absence of any equitable reason for imposing on her the father’s primary obligation to support the child. On the other hand, it has been held that the mother cannot separate from her husband, take charge of the children, and maintain a suit against him for necessaries furnished them. 1'n order to hold the parent liable there must be either an express promise to pay or circumstances from which a promise can be implied. Of course, where necessaries are furnished to a minor child with the parent’s authority or under his express promise to pay therefor, the parent is liable; and a moral obligation to support the child is a sufficient consideration to sustain such promise, but not to sustain a promise to pay for necessaries already furnished.”

Plaintiff also relies on Mullally v. Lott, 162 Ill. App. 533, and there seems to be more similarity between the facts of that case and of this than any of the other cases cited. There the plaintiff sued to recover for board and clothing furnished defendant’s wife and minor daughter. There was a finding in favor of plaintiff for the amount claimed to have been furnished to the daughter from January 1, 1908, to January 1, 1909, and against plaintiff for the board and clothing furnished the wife. Defendant sued out a writ of error, and plaintiff assigned cross-errors. Plaintiff was the grandfather of the minor daughter. As to the claim for the support of defendant’s wife, it was urged that her rights had been adjudicated in a bill filed by her for separate maintenance. The court held, however, that the claim was not barred by that proceeding, but that the issues of fact as to whether the wife had been living separate and apart from her husband without. good cause and against his consent had been heard by the trial court and decided in favor of defendant, and that this court could not say that the trial court was clearly and manifestly wrong in its findings. As to the claim on account of support of the child, the opinion states that defendant made a feeble effort to maintain the contention that he desired and offered to support and provide for his daughter; but the court was of the opinion that the evidence clearly showed the contrary; that he was amply able but made no provision to support his daughter, although he knew that she had no means and must depend on someone for support; that he knew that the grandfather was providing for her; that the situation seemed in a measure understood by both plaintiff and defendant; that the greater weight of the testimony was to the effect that “the arrangement was acquiesced' in by the defendant,” and that under all the circumstances the court might properly find an implied promise on the part of defendant to pay for the lodging and necessary clothing of the daughter which had been furnished by the grandfather.

Upon a consideration of all the evidence in this case we arrive at the same conclusion. To begin with, the evidence shows without dispute that this father wrongfully deserted his wife and children; that he failed to provide for their support, and that by a decree of a court having jurisdiction of the marriage status, the custody of these children was taken away from him and awarded to the mother. The testimony of Dorothy was given while she was living with and was under the influence of her father. That she attempted to give a clear and truthful recital of all the circumstances, we do not doubt. She was certainly not a hostile witness and we think her evidence, taken in connection with that of the plaintiff and all the other circumstances appearing in the case, shows by a manifest preponderance of the evidence that defendant acquiesced in these children remaining with their aunt while knowing that plaintiff was expecting compensation from him for the support and maintenance furnished them. In view of the proceedings which had taken place in court and defendant’s abandonment of his family, plaintiff in our opinion might well have hesitated to deliver the children into the father’s custody unless assurances were made which would have given her reason to believe that he had prepared a home where they would be taken care of, and that he had come to a state of mind in which he recognized his natural obligation to support his children. The uncontradicted testimony shows that defendant visited these children time after time while the plaintiff aunt was absent earning the means by office work performed by her in a leather goods department of a Chicago store to provide for their necessities. A careful reading of the testimony fails to show any attempt on defendant’s part in good faith to regain or prove himself worthy of the custody of the children. The persons named by him as present when he demanded the children were not called as witnesses with the exception of Dorothy. Plaintiff denies his statements and is corroborated by the circumstances. We think he is liable to plaintiff in reasonable amount for the care, maintenance and education of the children, which he utterly failed to provide.

Defendant offered no evidence as to the amount which should be paid in case he was found to be liable. Plaintiff’s affidavit of merits states the sum to be $1,500 and says this is due after allowing all credits, deductions, etc. Her testimony indicates a much larger amount, namely $25 a week, which would make a total sum of $1,750 due. " An aunt, Amelia Williams, states that a fair, reasonable and customary charge would be “from ten up,” evidently meaning $10 a week. It is apparent that the exact amount which should be paid must in the last analysis be a matter of opinion. Weighing all the evidence as to defendant’s income and station in life, the kind and nature of the support and maintenance which was furnished, as well as the opinion evidence, we have come to the conclusion that $10 a week would be a fair and reasonable sum. At this rate there would be a total amount due to plaintiff of $700.

The judgment of the trial court will therefore be reversed with a finding of facts and judgment here in favor of plaintiff and against defendant for $700.

Reversed with finding of facts and judgment here.

0 ’Connor, P. J., concurs.

McSurely, J., dissents.

Findings of facts: We find as facts that defendant is the father of the minor children, Dorothy and Helen Wray Norton; that from March 10, 1924, until July 15, 1925, with the knowledge, consent and acquiescence of defendant, plaintiff furnished support and maintenance in the way of necessaries, food, clothing and education to said minor children; that during all of said time defendant failed in his obligation to maintain, support and educate his said children, and that he is liable to plaintiff for the fair and reasonable value of such support, maintenance and education as was furnished by plaintiff. We further find the fair and reasonable value of said support, maintenance and education so furnished by plaintiff for said minor children to be the sum of $10 a week for 70 weeks, making a total sum of $700, for which judgment should be entered in this court against defendant, Wray S. Norton, and in favor of plaintiff, Albina Charbonneau.


author: Mr. Justice Matohett

text:
    Samuel Israel, Defendant in Error, v. Jerry R. Selman, Plaintiff in Error.
    Gen. No. 35,203.

      McSurely, J., dissenting.
    Opinion filed November 9, 1931.
    Rehearing denied November 23, 1931.
    Sissman & Sissman, for plaintiff in error.
    J. E. Yaffe, for defendant in error.
   Mr. Justice Matohett

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment in favor of plaintiff in the sum of $3,500 entered upon the finding of the court.

The amended statement of claim alleged that on September 26,1929, at Canton, Ohio, plaintiff loaned to defendant $3,500 in cash which defendant promised to repay with interest at 7 per cent per annum; that defendant gave collateral of $7,200 on said loan and executed and delivered to plaintiff a receipt promising to return the collateral upon payment of the $3,500 with interest, and that neither principal nor interest had been repaid.

The affidavit of merits asserted a defense to the whole amount demanded; denied that defendant received $3,500 at Canton, Ohio, on September 25, 1929, as a loan, or that such loan was obtained upon security; alleged that the junior mortgage notes of $7,200 had been given plaintiff to replace collateral security previously deposited by defendant with plaintiff to secure a loan of $4,500 and not for the purpose of securing an additional loan. The affidavit generally denied that defendant owed the sum demanded.

It is urged in the first place that plaintiff did not sustain the allegation, by a preponderance of the evidence, that he loaned defendant $3,500. Plaintiff testified to an arrangement made orally with defendant in Chicago, whereby defendant agreed to borrow half of all the money plaintiff could obtain for defendant’s use. He further testified that pursuant to that arrangement he raised $7,000 which was turned over to defendant at Canton, Ohio, on September 26, 1929, and that for $3,500 of the amount thus furnished defendant gave him collateral. The junior mortgage notes, which plaintiff said were received by him as collateral, were offered in evidence and received without objection. Plaintiff, however, did not produce the receipt described in his amended statement of claim, and no explanation is offered for its nonproduction.

The evidence of plaintiff is corroborated by that of Irma Stueber, who testified to a conversation with defendant Selman on September 27, 1929, at Delpire’s restaurant, 47th street and Lake Park avenue, when, she says, plaintiff was present. She says that defendant told her that plaintiff had given him $7,000 in cash, of which he understood $1,500 was the money of the witness; that both of them had expected to give her that amount that day but could not do so. She says that defendant said he would give her that amount with interest when a certain deal on Montrose avenue was settled, and that he would give plaintiff $3,500 and interest as soon as he received the money on the Mont-rose avenue deal, and that she would get the $1,500 as soon as plaintiff received his collateral back from the $3,500 which he put up. She did not receive the $1,500, but October 11, 1929, she received from plaintiff defendant’s check for $8.75, interest.

On the other hand, defendant testifies that he and plaintiff talked about the trip which was about to be made to Canton; that plaintiff had $5,000 and defendant $2,000 in cash. He says that plaintiff handed over to him $5,000; that a Mr. Weissler and another man gave him some money, and that they instructed him “to go over to that book agent and place that amount of money on a certain horse. ’ ’ He further says, ‘1 They gave me the name of the horse. I went over there and placed all the money. He (plaintiff) said, ‘here is the money. G-o and place it.’ ” Defendant also testified that while on the train en route to Canton, plaintiff and defendant agreed that plaintiff was to get 50 per cent of the winnings and defendant 50 per cent; that there was nothing said about the proportion of losses to be borne, as there was no expectation of any losses. He says lie received from plaintiff $5,000, not $7,000; that he returned no part of it to plaintiff; that the money was all placed on the bet on the horse and was all lost; that the bet was placed with a bookmaker in Canton, Ohio.

Defendant testifies that the, notes offered and received in evidence were given by him to plaintiff during the month of August as collateral security on a different loan; that there was a previous note held by plaintiff for $5,000, which amount had been received by him from plaintiff; that the notes in question were given in August, 1929, and not on September 25, 1929. Defendant says that he owed plaintiff on other transactions $5,000 less commissions, for which he claims credit. He denies that he promised plaintiff he would repay the $3,500 placed on the bet in the event of loss, but says he did not .ask plaintiff to lend him the money for the purpose of laying it on the bet; that plaintiff gambled on his own accord and that defendant did so too.

Mark Weissler testified for defendant that he, Weissler, first made a proposition to defendant to go down to Canton, Ohio; that there was laid altogether on that race $9,000; that he, witness, laid $2,000 and was to get one-fourth of the winnings; that the arrangement about the share that the witness was to get was made in the presence of plaintiff, who knew that witness was to receive one-fourth share; that the agreement was by plaintiff, defendant and a Mr. Green, who was likewise to receive 25 per cent; that Green himself did not pay any money but that the $2,000 put up by the.witness was put up in partnership with him.

In rebuttal plaintiff testified that defendant paid $8.75 to Miss Stueber; that defendant gave a check for that amount to the witness. The check was drawn on the First National Bank of Chicago, payable to Miss Stueber. Plaintiff further said that when the collateral was handed to him by defendant he said, “Whatever money you raise, you will loan me half of it”; that he was to get back $7,000 on the same day in Canton, Ohio; that defendant was to meet him on that day at the hotel where they stayed, but that the meeting did not take place.

Miss Stueber also testified in rebuttal that she spoke to defendant before she went to Canton about a loan of $1,500 that she had made September 25, 1929; that she cashed a check and received three $500 bills, which she took to plaintiff’s office; that defendant arrived there later; that plaintiff already had five $1,000 bills and five $100 bills, and she, plaintiff and defendant counted the money.

If the controlling question in the case was whether defendant agreed to repay the $3,500 to plaintiff, we would be compelled to hold, since the finding of the court upon review is entitled to the same weight as the verdict of a jury (Broderick v. O’Leary, 112 Ill. App. 658) that the finding was not against the weight of the evidence.

A much more serious question is raised by the further contention of defendant that the money was turned over to defendant by plaintiff to be used in a gambling transaction; that the whole transaction between these parties was illegal and contrary to public policy, and that plaintiff therefore cannot recover upon a contract made for such a purpose. This defense was not set up in the affidavit of merits, perhaps for .the reason that defendant did not care to furnish evidence upon which he might be indicted for a criminal offense. However, the defense was presented and the evidence on the issue received and weighed by the court. There is no doubt that upon this question the burden was upon defendant to establish the defense by a preponderance of the evidence (Patterson v. Scott, 142 Ill. 138). If when the evidence was offered plaintiff had made an objection that the defense was not set up in the affidavit of merits, it would have been error on the part of the trial court to refuse to sustain the objection. No objection of this kind was made, and the evidence having been heard and the issue tried, we will not reverse and remand for the purpose of requiring the parties to file better pleadings. Lyons v. Kanter, 285 Ill. 336.

Plaintiff contends that as the transaction occurred at Canton, Ohio, and as there is no proof that such transaction was illegal there, the contract, under the law of comity, will be enforced in this State, citing Roundtree v. Baker, 52 Ill. 241; Miller v. Wilson, 146 Ill. 523. These cases state the undoubted general rule of law in that respect. The law of comity between the different States does not require a contract made in one State to be executed in another where it would be against the public policy of the latter State. A gambling contract or transaction is contrary to the statute and policy of the State of Illinois. (Pope v. Hanke, 52 Ill. App. 453, affirmed 155 Ill. 617.) Upon the issue as to whether this transaction in which these parties engaged was a gambling transaction, there is no dispute as to the facts. The evidence of defendant and Weissler to that effect is not denied. Plaintiff testifies that defendant told him he would give plaintiff the money the next day; that he would get it in Canton and that “he was going to get it betting on the horse races.” Plaintiff further testified that defendant said he had tips on the horses and that he had confidence in defendant; that defendant said, “All the money you procure you loan me half of it; and on your half we will go down and bet on the horse races ’ ’; that defendant “had something official” and said, “Whatever you get at the bank, I will be responsible for half of it; you loan me half — any amount of money you can possibly get.” Plaintiff further testified to the effect that defendant took the money and lost all of it betting on the races.

The evidence leaves no doubt that all the parties understood that the money was obtained from plaintiff for the purpose of betting it on the races at Canton," Ohio, and that the agreement to treat half of it as a loan, assuming such agreement was made, was a part of that transaction and not severable from it.

There are cases holding that the mere knowledge by one party that money loaned to another is to be used for the purpose of gambling does not invalidate the transaction, and that seems to have been the holding of the Supreme Court of Illinois in the early case of Lurton v. Gilliam, 1 Scam. 577, where two parties purchased a piece of cloth at a store on credit, a memorandum being made at the time to the effect, “If Mr. Douglass is elected to Congress, P. M. Brown is to pay for the cloth; if Mr. Stuart is elected, James Burton has it to pay.” In that case the court held that the contract for the sale of the cloth was severable and distinct from the bet made and was not tainted by it. The court said:

“It does not appear that the defendants in error were in any way parties to the bet, or encouraged it; and we do not perceive that their contract for the sale and delivery of the cloth, was tainted with a participation in the original agreement between the parties. Their mere knowledge of it could not certainly connect them with it; and having parted with their property under the arrangement, common honesty surely requires that the party at whose instance it was delivered, conformably to his agreement, should be held answerable for the value of the merchandise delivered. Money loaned to be used in gaming could heretofore ' have been recovered back at common law, but it is now prohibited by the statute against gaming. ’ ’

On the other hand, in Mosher v. Griffin, 51 Ill. 184, where a party sued for services rendered in fitting a horse for a race on which money was bet, the Supreme Court held that these services, whether the race was run or not, being in aid of an offense prohibited by the statute, were in violation of the law, and that plaintiff could not recover. The court also held that the money expended for the shoeing and feed of the horse while under training was not necessarily a part of a gaming transaction, and that plaintiff might recover therefor.

The cases concerning such illegal transactions are collected in a note to State v. Capital City Bank, 53 A. L. R. 1356, and the general rule is there stated to be that a contract legal in itself is not rendered unenforceable by the mere fact that one of the parties has knowledge of an intended purpose of the other party by means of the contract or subject matter of it to violate some law or public policy of a state. The note cites 6 E. C. L., p. 697, to that effect. It also appears that the weight of the authority is to the effect that this rule is not applied where the evidence shows a participation by the lender in the unlawful purpose for which the money is to be used, and Mosher v. Griffin, 51 Ill. 184; Hoefeld v. Ozello, 290 Ill. 147, and Frank v. McDonald, 86 Ill. App. 336, are cited as authorities to that effect.

The evidence of -plaintiff establishes beyond a doubt that in the whole transaction plaintiff not only knew that the money which he was raising was to be used for an unlawful purpose but also participated in such purpose and expected to profit by the transaction. His presence at Canton, Ohio, on the day of the races leaves no doubt of this controlling fact. Since (assuming his version to be true) his loan of $3,500 was made to assist in a transaction which was unlawful and contrary to the public policy of this State, he cannot be permitted to recover.

The judgment of the trial court will therefore be reversed with a finding of facts and judgment here in favor of defendant.

Reversed with finding of facts and judgment here.

O’Connor, P. J., concurs.

McSurely, J., dissents.

Finding of facts: We find as facts that the plaintiff, Samuel Israel, loaned to defendant, Jerry E. Selman, the sum of $3,500 to be used for the unlawful purpose of betting on horse races; that plaintiff not only had knowledge of the unlawful use to be made of the money but participated in the unlawful transaction with the expectation and hope of receiving profit therefrom; that as a matter of law he is not entitled to recover upon the claim upon which he brings suit.