text:
    Elizabeth Schweickhardt, Appellant, v. John C. Jokers, Administratrix of the Estate of Louise Jokers, Deceased, Appellee.
    Gen. No. 8,171.
    Opinion filed May 2, 1928.
    P. A. Griswold, for appellant; Chapman & Du Hadway, of counsel.
    P. M. Hamilton and Sumner & Reardon, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This controversy pertains to a claim which the appellant Elizabeth Schweickhardt filed against the estate of her deceased mother, Louise Jokers. Louise Jokers died April 12, 1925, and her son John C. Jokers, who had been conservator of her estate prior to her death, became administrator thereof. The claim which was filed against the estate in the county court of Jersey is as follows:

To services rendered, caring for my mother, the said Louise Jokers, in Godfrey, Illinois, giving her board, lodging and washing, caring for her room, waiting on her, combing her hair, dressing and undressing her, bathing her, helping her to move about, nursing and carrying meals to her in bed when sick, giving her constant care and attention from March 1,1908, to October 1,1920, at $1.00 a day....................................$4,500.00
To services rendered the said Louise Jokers in St. Louis, Missouri, including board and lodging, washing, care of room, nursing, dressing a cancer, never leaving her alone, waiting on her when unable to go to the toilet, giving her personal care and attention from May 18, 1921, to April 12, 1925, three years, ten months, twenty-four" days, at $2.00 a day.............................$2,838.00
$7,338.00
Less funds advanced and interest thereon.. .$2,998.50
$4,339.50

The appellant’s claim was contested by the administrator and a counterclaim for the estate was filed. There was a trial without a jury in the circuit court of Jersey county, where the case had been taken on appeal from the county court. At the close of the evidence, the court rendered the following finding and judgment:

“It is therefore considered by the Court that the plaintiff, Elizabeth Schweickhardt, do have and recover of and from the defendant; John C. Jokers, administrator of the estate of Louise Jokers, deceased, the sum of $1,460.00 for services in the care of Mrs. Louise Jokers. It is further considered by this Court that the defendant John C. Jokers, administrator of the estate of Louise Jokers, deceased, do have and recover of and from the plaintiff, Elizabeth Schweickhardt, the sum of $2,468.00, amount due from plaintiff to defendant on three notes in evidence, leaving a balance due from plaintiff to defendant of $1,008.00, costs to be paid by the defendant in due course of administration.”

This appeal is' prosecuted from the judgment.

The principal error assigned and urged for reversal of the judgment is that the court on motion of the appellee excluded the evidence offered by the claimant in reference to her services rendered in caring for her mother at Godfrey, on the ground that there was not sufficient proof of an agreement on the part of the deceased to pay for such services, and also because a claim for these services was barred by the statute of limitations.

Concerning the services rendered by the appellant for her mother while she was living with her at Godfrey, Hilda La Mothe, appellant’s daughter, testified that the deceased came to live with her mother about March 1, 1908, and continued to live with her mother until October 1, 1920, when the family moved to St. Louis. She also testified as follows:

“When she lived with us at Godfrey and in St. Louis she had room, board and washing. Mother took care of her and mended and made her clothes. She was very helpless. She walked with a cane and could not bend over. Mother combed her hair, bathed her, washed her face, put on her shoes and stockings, took them off, dressed and undressed her and emptied the slop jar for her. At one time in Godfrey she fell and was injured by a truss she was wearing and was confined to her bed about two months. She had a nurse about two weeks, but after that mother took entire care of her; prepared her meals; took them to her bed. During that time she could not go to the toilet, but was obliged to use a bed pan and mother attended to that. During fall and winter of 1919 she was sick and was sometimes obliged to have a doctor. This made extra work for mother, and sister Alma had to leave school in Alton and come home to help mother.”

A number of other witnesses corroborated Mrs. La Mothe in reference to the character of the services rendered by the appellant to her mother. In reference to the question of an understanding or agreement between the appellant and the deceased, Mrs. La Mothe testified as follows: “While Mrs. Jokers lived with us in Godfrey, I heard her tell mother several times-that when she died mother would be paid for taking care of her.” Mrs. Minnie Svoboda, who was a witness for appellant in reference to the same matter, testified that she was in the Schweickhardt home sometimes two or three days out of a week helping the appellant with her housework, and that Mrs. Jokers talked about compensating her daughter: “She said Lizzie would be well paid after she died for taking care of her. Heard Mrs. Jokers make a statement like that more than once while she was living in Godfrey. She mentioned it two or three times.” Mrs. Elizabeth Hartman, who is a cousin of the appellant, testified that she called on the appellant while she lived at Godfrey once or twice a year and saw Mrs. Jokers, who was her aunt, there, and that she heard Mrs. Jokers make a statement concerning the matter of compensation to be paid to the appellant as follows: “I heard her make statement as to compensation to Elizabeth for what she had done for her. She told me that the one that was best to her while she was living would get what was left of her money, and that was Mrs. Schweickhardt.” Alma Canney also testified concerning the same matter: “When living in Godfrey I have heard grandmother make statements as to whether mother would receive compensation for what she did for her. She didn’t want my mother to feel so worried. She said at her death she would be well paid for anything she ever done for her.”

The inference to be drawn from this testimony is clearly to the effect that the appellant and the deceased had an express understanding and agreement that the appellant was to be paid at the time of Mrs. Jokers’ death for the services she rendered in caring for her. It may also be pointed out in this connection that the compensation which the appellant was to receive was not payable until after the death of her mother, and, therefore, that her cause of action would not accrue to appellant until the happening of that event, and hence the statute of limitations did not begin to run until the mother’s death. “A cause of action must have existence before it can be barred. ’ ’ Davis v. Munie, 235 Ill. 620. A promise to pay a debt at the death of the promisor is a valid and legally binding obligation. Neish v. Gannon, 198 Ill. 219.

In Waterman v. Estate of Kirk, 139 Ill. App. 451, the court said: “Where a contract provides that performance by the promisor shall take place upon the happening of a certain contingency or the fulfillment of a certain condition, the cause of action accrues and the statute begins to run when the event occurs and the condition is complied with, and not before.” And it was distinctly held in Estate of Switzer v. Gertenbach, 122 Ill. App. 26, that where the proof shows an agreement between a claimant and a deceased for services to be paid at death and out of his estate, the claim does not mature until the death of the deceased, and the statute of limitations does not run against the claim for that reason.

It is clear from the authorities above cited that appellant’s claim for services rendered at Godfrey was not barred by the statute of limitations.

For the reasons stated, we therefore conclude that the court erred in excluding the evidence concerning the services of the appellant rendered for her mother during the time the deceased lived with her at Godfrey. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Fannie H. Depue, Executrix of the Last Will and Testament of George W. Depue, Deceased, Petitioner and Appellee, v. Julian H. Heberling, Executor of the Last Will and Testament of Aaron T. Depue, Deceased, et al., Defendants. J. Melvin Gregory, Appellant.
    Gen. No. 8,196.

      Opinion filed May 2, 1928.
    Scott W. Lucas, for appellant.
    Dailey, McCormick & Radley, for Fannie H. Depue, Appellee.
    Clarence W. Heyl, for Samantha A. Depue, defendant.
   Mr. Justice Niehaus

delivered the opinion of the court.

This appeal is from that part of the decree of the county court of Mason county, rendered in the matter of the petition to sell real estate to pay debts in the estate of George W. Depue, deceased, namely, that part by which the appellant’s claim, which had been filed against the estate of Aaron T. Depue, deceased, was held to be invalid and set aside. It appears from the petition which was filed by Fannie H. Depue as executrix of the estate of George W. Depue, deceased, that the title to the real estate involved in the proceeding had been devised to the deceased by the last will of his brother Aaron T. Depue, who had preceded him in death and whose estate was being administered in the same court. Aaron T. Depue at the time of his death was a resident of the State of Michigan, and at the time of the filing of the petition in this proceeding, ancillary administration had been granted and was still pending in the county court of Mason county, and apparently there was also a deficiency of personal property in the estate of Aaron T. Depue, mainly due to the allowance of a claim of the appellant James Melvin Gregory against that estate for the sum of $7,853.23. The validity of this claim and the legality of its allowance by the county court of Mason county was one of the controverted matters in the proceeding to sell the real estate to pay debts referred to. The findings in the decree concerning the appellant’s claim are as follows:

“The Court further finds that on November 1st, 1924, one of the defendants herein, James Melvin Gregory, filed in this court what purports to be a copy of claim prior thereto filed by him in the Probate Court of Menominee County, Michigan, against the estate of Aaron Thompson Depue, deceased; that said copy of claim was not verified by the affidavit of the said James Melvin Gregory, or by the affidavit of anyone for him, and that the said copy of claim as filed by him was not sufficient to give this Court jurisdiction; that on account of inadvertence or mistake the said copy of claim was allowed by this Court as a claim against the estate of the said Aaron Depue, deceased, in the sum of $7,853.23; that the said claim was allowed prior to the day fixed for adjustment day in said estate, and the said Court was without jurisdiction to allow said claim as a claim against the estate of Aaron Thompson Depue, deceased; that the said judgment and the record thereof in this court of the allowance of said claim should be set aside and for naught held.
£ ‘ The Court further finds from the evidence that the said James Melvin Gregory is not entitled to recover anything by his said alleged claim, and that the same should be disallowed, and that there are no other claims now pending and undisposed of against said estate of said Aaron T. Depue, deceased.”

That part of the decree involving the validity of the appellant’s claim and the legal propriety of setting it aside and expunging the record of its allowance are the only matters involved in this appeal.

The record discloses the following facts, namely, that Aaron Depue, deceased, prior to the year 1916, had been a resident of Mason county; that in 1916 he removed to the State of Michigan where he died testate on the 28th day of June, 1922; that at the time of his death he owned the farm in Mason county, consisting of about 320 acres, which is involved in this controversy. He left surviving him his widow, Samantha A. Depue, his brother, George W. Depue, and his nephew, James Melvin Gregory, the appellant, but left no child or children nor descendants. The will of Aaron T. Depue was probated in Menominee county, Michigan, and by his will he devised the real estate in question to his mother, Mary A. Depue, for life, and subject to the life estate of his mother, he devised it to his brother, George W. Depue. The mother died January 12,1919, thus leaving George W. Depue owner in fee simple of the farm land in question, but subject to the rights of any creditors of Aaron T. Depue, deceased. After the probate of the will of Aaron T. Depue in Michigan, it was filed in Mason county and ancillary administration was taken out on the estate at the instance of Julian H. Heberling, who had been named as executor in the will, and Heberling was appointed executor by the county court of Mason county and qualified as such about the 13th day of October, 1924. He filed an inventory and fixed the first Monday of the following December term of the county court, 1924, as adjustment day, and notice was given to creditors by publication and posting notices, as required by the statute.

On October 1, 1924, before the time fixed for the adjustment of claims against the Aaron T. Depue estate, the clerk of the county court of Mason county received a written document from some one whose identity is not disclosed by the record. The written document was apparently a copy of a claim which the appellant had filed against the estate of Aaron T. Depne in Menominee county, Michigan, and it was certified as such by the judge of Menominee county. This copy of appellant’s claim filed in Michigan is as follows:

“State of Michigan,
The Probate Court for the County of Menominee Estate of A. T. Depue, deceased.
To James M. Gregory, Dr.
Address Shingleton, Mich.,
A one-third interest in the Estate of Mary M. Depue, deceased, of Mason County, Illinois, of which A. T. Depue was the Administrator. $6549.49
Interest thereon at the rate of 6% per annum from May 1, 1920 1148.82
$7698.31
July 22. Expense in accompanying remains of A. T. Depue from Faithorn, Mich., to Easton, Ill. 100.00
Oct. 23. Expense Shingleton, Mich., to Menominee, Mich., to assist in Probating Will of A. T. Depue 25.00
$7823.31
(Settlement with the other heirs in the Estate of Mary M. Depue was made May 1, ’20, the Administrator withheld settlement with the signer of this claim, using his share in purchasing a farm property near Faithorn, Mich., with the understanding that interest would be paid thereon until final settlement was made.)
State of Michigan, ^ gg County of Menominee)
James M. Gregory, being duly sworn says: I reside in the County of Alger, Michigan.
The foregoing statement of account against the estate of A. T. Depue, deceased, is a true and correct statement, and said account is a just claim against said estate.
There is now due and unpaid on said claim, over and above all legal set-offs, the sum of Seventy-Eight Hundred Twenty-three — 31/100—dollars.
James M. Gregory
Subscribed and sworn to before me this 6th day of April A. D. 1923.
Glen E. Sanford
(Seal) Notary Public, Menominee County, Mich.”

From the testimony of the county clerk it appears that he filed this copy of appellant’s claim, which had been filed against the estate of Aaron T. Depue in Michigan, as a claim against the estate of the deceased then pending in the county court of Mason county on the day he received it, namely, November 1, 1924; that on the day he received the claim, Heberling, the executor of the estate, came into his office and requested him to write a waiver of process and entry of appearance on the back of the claim, which he did; that Heberling signed the waiver and entry of appearance as executor, and then took the claim to the county judge. Heberling testifies that he told the county judge that he wanted the claim allowed. The county judge indorsed upon the wrapper inclosing the claim, “Approved, November 1, 1924, John Greenway, County Judge,” and thereupon returned it to the clerk. The county clerk evidently regarded the indorsement of the county judge as an order for the allowance of the claim, and entered the following order in the record of claims against estates:

“Now on this day comes J. Melvin Gregory and presents to the Court his claim against said estate; also comes said executor, enters his appearance herein and waives service of process and makes no objection to the allowance of said claim. And the Court having heard the evidence on said claim, finds said claim to be just and unpaid. It is, therefore, ordered by the Court that said claim be allowed and classified as follows :
‘ ‘ Claimant. J. Melvin Gregory; class,..........; amount, $7,823.31.”

The claim on its face did not purport to be a claim against the estate of Aaron T. Depue, deceased, in Mason county, and was not sworn to as a claim against the estate in Mason county. The waiver of process and entry of appearance by the executor did not make it a legal claim against the estate; nor did the oral request of the executor make a proper legal basis for the allowance of the claim as a valid claim against the estate; nor could such request take, the place of proof of how much, if anything, was due on the claim from the estate, or in what class the claim should be allowed. No evidence was adduced or heard by the court at any time concerning the validity of the claim nor the class to which it belonged, as required by the statute; nor did the court make any order allowing the claim against the estate. The indorsement on the wrapper of the claim indicating an approval of it by the court was not an adjudication by the court that the claim was just and unpaid; nor what if any amount was due the claimant; nor in what classification it was legally entitled to be entered.

The county court is without jurisdiction to allow claims against estates except such as constitute an indebtedness against an estate, and except in the manner provided for by the statute. Bocock v. Leet, 210 Ill. App. 402. And “the classification of a claim is as much a part of the judgment as that of the allowance of the claim.” Ford v. First Nat. Bank, 201 Ill. 120. It appears from the original claim filed,. which has been certified up to this court for inspection, that the entry of appearance and waiver of process which had been indorsed on the back of the .claim by the executor was afterwards canceled and withdrawn, and the record also discloses that thereafter the executor filed a motion to dismiss appellant’s claim, for the following reasons:

“1. That said claim was not filed in this court or presented as required by statute, on or before the second Monday of December, 1924, the day fixed by the ” executor as adjustment day.
“2. That no summons or notice was issued or served upon the executor after said claim was filed, and on account of the failure to issue summons or notice and have same served upon the executor, the said claim is now barred by the Statute of Limitations.
“3. Said claim is not verified by the oath of complainant before an officer authorized by law to administer an oath.
“4. Said claim as filed is not in the form required by statute.
“5. Under the Statute of Illinois said claims cannot be allowed for the reason that it was not filed before adjustment day as fixed by the executor, and when same was filed no summons or notice was issued and served upon the executor.
“Wherefore, this executor prays the Court will dismiss said claim.
Julian H. Heberling, Executor of the Last Will and Testament of Aaron Thompson Depue, Deceased.”

This motion by the executor for dismissal of the claim came up for hearing before the court and was contested by the appellant, who was represented by his attorney at the hearing. Upon the hearing of the matter the court dismissed the claim. The appellant thereupon prayed an appeal to the circuit court from the order dismissing his claim and perfected his appeal. When the matter came up for hearing in the circuit court on appeal, the claim was again dismissed at appellant’s costs, and this was the state of the record, concerning appellant’s claim, at the time of ‘the entry of the decree of sale in question.

It is contended by the appellant, however, that the order of dismissal did not do away with the force and effect of the judgment entered in the court record of claims, allowing appellant’s claim. It is. sufficient to say concerning this contention that the allowance of appellant’s claim never had legal force or effect as a judgment because it was not entered by the clerk pursuant to any order of the court allowing the claim, and was not based on the statutory requisites for the allowance of claims against estates. It was not an adjudication by the court that it was legally entitled to allowance as a just claim against the estate. Kingan & Co. v. Estate of Burns, 104 Ill. App. 661. Even if the claim had been found to be a valid claim and allowed against the estate of Aaron T. Depue in Michigan, that would not have been a sufficient legal basis for its allowance against the decedent estate in the county court of Mason county. “A judgment against an administrator in one State is no evidence of indebtedness against another administrator of the same decedent in another State, for the purpose of affecting assets received by the latter under his administration.” Rosenthal v. Renick, 44 Ill. 202; Elting v. First Nat. Bank of Biggsville, 173 Ill. 368; McGarveg v. Darnall, 134 Ill. 367; Strauss v. Phillips, 189 Ill. 9. And in McGarveg v. Darnall, supra, the court pointed out that a judgment against an administrator in one State is not competent testimony to show a right of action against either a domicilary or ancillary administrator in another State, or to affect the assets in such other State. It is well settled that the county or probate court has general and unlimited jurisdiction in matters of administration, and in the exercise of equitable powers may, in proceeding for the sale of real estate to pay debts, set aside its own order allowing a claim against an estate if mistake or fraud has intervened. Schlink v. Maxton, 153 Ill. 447; Ford v. First Nat. Bank, 201 Ill. 120, 122; Whittimore v. Coleman, 239 Ill. 450; Kinne v. Schumacher, 65 Ill. App. 342; Swayer v. Wiemers, 182 Ill. App. 651. In Ford v. First Nat. Bank, supra, the Supreme Court said: “It is contended by the appellee that the probate court is clothed with a broad jurisdiction over all probate matters, and may look into and correct the allowance of claims after the term at which they are allowed. This is true as between the creditors and the heirs-at-law upon a petition filed for the sale of real estate to pay debts.”

We are of opinion, therefore, that the county court properly ordered the judgment of allowance of appellant’s claim which had remained on the records of the court to be set aside and expunged.

A motion was made by the appellee to dismiss this appeal on the ground that the appeal should have been taken to the circuit court. We took the motion with the case. It is apparent from what is set forth in the foregoing opinion that the appeal grows out of a decree of the county court entered in a proceeding to sell real estate of a decedent to pay debts, and that therefore the appeal was properly taken to this court. Atherton v. Hughes, 239 Ill. 632; Sifford v. Cutler, 244 Ill. 234; Wachsmuth v. Penn Mut. Life Ins. Co., 231 Ill. 29.

The motion to dismiss the appeal is denied and the decree of the county court is affirmed.

Affirmed.


author: Mr. Presiding Justice Jones

text:
    Owen Anderson, Administrator of the Estate of Anton Sampo, Deceased, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 7,827.

      Opinion filed August 15, 1928.
    J. A. Connell and Boys & Osborn, for appellant.
    M. D. Morahn, L. O. Browne and Butters & Butters, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Owen Anderson as administrator of the estate of Anton Sampo, deceased, recovered a judgment against the defendant railroad company for $2,000 and costs, because of personal injuries to said decedent.

No question is raised upon the pleadings or instructions to the jury, and there is but little controversy over the testimony. When the decedent received the injuries from which he died, he was an employee of the Marquette Cement Manufacturing Company. The important question in this case is whether the injuries received by him grew out of and in the course of his employment.

The accident occurred at Dickinson in LaSalle county at about 7:30 a. m. on June 26, 1921. At that time and for many years previous thereto, appellant operated a line of railroad from Streator to Denrock, passing through Dickinson, where the cement company operates its plant. There is no town at Dickinson. The land on both sides of the railroad right of way is occupied by the cement company’s buildings, mines, and other equipment. The railroad runs approximately east and west at that point between the Vermilion River on the south and a rocky bluff on the north. The cement company employed about 500 men, some of whom went to and from work by automobiles. In doing so, they passed through a gate on the highway north of the plant, from which a road led down the hill. Others were accustomed to riding on appellant’s trains which carried coaches for that purpose. Still others used a bus which ran on the highway. The employer did not furnish any conveyance or pay transportation for any of its employees. The railroad company had no depot platform or special accommodation at Dickinson where it took on or let off passengers. Portions of some of the buildings of the cement company were located on the railroad company’s right of way. Toward the east side of the plant, there was a stub or spur switch extending along the south side of the main track connected at the east end with the main track.

Appellee’s intestate lived at Jonesville on appellant’s railroad about two miles from Dickinson. He had been employed by the cement company since February, 1920. He was not required to use the railroad in going to or leaving his work. His brother, who was also employed at the cement company’s plant and lived at Jonesville, sometimes went by train, sometimes by bus, and he sometimes walked.

The duties of appellant’s intestate at the cement plant frequently required him to cross and to travel along appellant’s tracks where they ran between the buildings of the cement company. Employees of the cement company were required to register the time of their coming to work and leaving by means of a time clock. They worked in 8-hour shifts. Sampo’s time of employment was from 11:15 p. m. to 7:15 a. m. each 24 hours. On the morning of the accident, he punched the time clock in the power house at 7:23 a. m. He started down the track toward a coach which was standing on the main line a short distance from the power house, with the intention of riding to his home in Jonesville. As he approached the coach, a car on the adjoining stub switch became derailed, while attached to a moving train on the switch, and one end of it swung around and struck him. His collar bone was broken and he was otherwise severely injured. He was taken to a hospital in LaSalle where he remained until August 8, 1921. He returned to work on September 12th following, and continued in his employment until January 21, 1922. On the latter date he was taken ill with pneumonia and died on the 27th of that month. That the pneumonia and resulting-death were occasioned by the injuries received at the time of the accident is not questioned on this appeal.

From the time of the accident to Sampo until he returned to his employment in September following, his employer made certain payments to him for which he signed receipts reciting the payments were for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ft 201 et seq. Appellant claims that Sampo applied for compensation to his employer, but appellee insists that it was paid to him without his having applied therefor. No petition was filed with the industrial commission and appellee’s intestate did not request appellant to file anything with the commission. After Sampo returned to work, appellant reimbursed the cement company for the' amounts paid by it to Sampo, and also for the hospital bill, which had been paid by the cement company.

It is conceded that if Sampo’s injuries arose out of and in the course of his employment, there can be no recovery in this action. Appellant contends that Sampo applied for and received compensation and thereby admitted his injuries did so arise. In the particular work being done, appellant was- engaged in intrastate commerce and was therefore operating under and governed by the provisions of the Workmen’s Compensation Act. (Goldsmith v. Payne, 300 Ill. 119.) Sampo and the cement company were also operating under and governed by the provisions of the act. Section 29 of the act, Cahill’s St. ch. 48, Ü 229, provides that where an injury or death for which compensation is payable by the employer was not proximately caused by the negligence of the employer or his employees, but was caused under circumstances creating a liability for damages in some person other than the employer, such other person having elected to be bound by the act, or being bound thereby, then the right of the employee or the personal representative to recover against such other person shall be subrogated to his employer. Appellant claims the provisions of that section are controlling in this case and that if it is liable at all, its liability is to the cement company and not to appellee.

The Compensation Act governs where the employee’s injury or death is the result of an occurrence, “for which compensation is payable by the employer.” (Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413, 414.) Compensation is payable by the employer only when the injury or death arose out .of and in the course of the employment. If the injury did not so arise, then the provisions of section 29. of the act are not applicable. (Kelly-Atkinson Const. Co. v. Foreman Bros. Banking Co., 218 Ill. App. 345.) Whether Sampo’s injuries arose out of and in the course of his employment, and not whether he made application for compensation, is the important factor to be determined. It was said in the Foreman Bros. case, supra, that “the situation is not changed by reason of the fact that Cahill actually received some payments from his employer, in the form of compensation under the act. The act applies only when compensation is legally payable for the injury in question. The fact that it may actually be paid cannot affect the question of whether the circumstances of the injury are such as to bring it within the terms of the act.” We think this doctrine is sound and is within the letter and spirit of the act.

The accident did not occur on the premises of the Marquette Cement Manufacturing Company. Sampo had departed from the place of his employment after checking out by the time clock and was upon the right of way of appellant on his road home. He was performing no errand or duty for his employer and was no longer engaged in its service; nor was the employer under any duty to protect or govern him.

It is urged by appellant that its tracks and property were so closely connected with the plant of the cement company at the place of the accident that they should be considered in fact a part of the plant. Some of the buildings were partially upon appellant’s right of way, and a traveling crane or bridge extended across the tracks. It was necessary for employees of the cement company to cross and travel along the tracks in the performance of their duties, but we do not regard those circumstances sufficient to establish appellant’s contention. Similar situations are not uncommon. Appellant is a common carrier. Trains were run on its line of railroad through Dickinson upon a regular schedule, and there is nothing to show that the cement company had any control of any part of appellant’s tracks, or of any part of the right of way, except the ground leased for its purposes.

It is not claimed that Sampo was on any of such leased ground. He had left his employer’s premises and was upon the right of way of appellant. His route was of his own choice. Where an employee, in going to or coming from his work, chooses a route more dangerous than that afforded to the public or by Ms employer, or places Mmself in a dangerous place, where his employment does not necessarily carry him, and where he incurs a danger of his own choosing outside of the reasonable requirement of his employment, the risk arising from such act cannot be said to be incident to his employment. (St. Louis & O’Fallon Coal Co. v. Industrial Commission, 325 Ill. 574.)

It was held in Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, that where an employee was injured on her way to work by falling over a cellar door in a public sidewalk adjacent to her employer’s building, the fact that she was on her way to work was unimportant. She was not on the premises where she was employed, and it was held that the accident did not arise out of or in the course of her employment.

Under the law as announced in these cases, we are of the opinion that the injuries to Sampo from the accident in question did not arise out of, or in the course of his employment.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Jett

text:
    Albert Albee, Trustee, and George L. Murphy, Plaintiffs in Error, v. R. A. Gross et al., Defendants in Errors.
    Gen. No. 7,881.

      Opinion filed September 4, 1928.
    Frank E. Maynard and Fred B. Bennett, for plaintiffs in error.
    Knight & Swenson, for defendants in error.
   Mr. Justice Jett

delivered the opinion of the court.

This was a bill filed by Albert Albee, as trustee, and George L. Murphy, complainants, to foreclose a trust deed against R. A. Gross, Ada M. Gross, Charles F. Brandt and Della Brandt, et al. The record shows that on June 30, 1914, Albert Albee was the owner of the premises described in a certain trust deed sought to be foreclosed in this proceeding, being a farm consisting of approximately 246 acres of land, situated in Winnebago county, Illinois; that on said date of June 30, 1914, the said Albert Albee sold said land to the defendant R. A. Gross and conveyed the same by warranty deed bearing date June 30,1914; a trust deed was given and signed by the said R. A. Gross, as and for a part of the purchase price of said premises, and the notes secured by said trust deed were in a total principal sum of $22,000.

It is further shown that R. A. Gross and Ada M. Gross, his wife, sold the premises described in the bill of complaint on July 8, 1914, to Charles F. Brandt, one of the defendants, and conveyed the same by warranty deed, which warranty deed provided as follows, to wit: “Subject, however, to one certain trust deed conveying the premises hereinabove described, dated June 30th, 1914, and filed for record July 7,1914, in the office of the recorder of deeds of Winnebago county, Illinois, as document No. 98696, and the notes thereby secured totaling the sum of $22,000, which said trust deed and the notes thereby secured, the grantee herein hereby assumes and agrees to pay as part payment of the purchase price for the premises hereby conveyed.” It is further shown that Charles F. Brandt purchased the said premises in question with the full knowledge of said assumption clause and accepted said warranty deed with the express understanding that the said $22,000 trust deed assumed by him was as and for a part of the purchase price of said lands.

It is further shown that George A. Allen purchased the premises in question from the said Charles F. Brandt and Della Brandt, his wife, by warranty deed, said warranty deed contained an assumption clause similar to the one above quoted appearing in the deed of B. A. Gross and wife to Charles F. Brandt which deed was accepted by George A. Allen, and the said Allen thereby agreed to pay said trust deed and notes, aggregating $22,000, as so much of the purchase price of the said property.

It is further shown that on February 28, 1925, the said George A. Allen was still the owner of the premises described in the bill of complaint. Said note, secured by said trust deed had become due and payable. George A. Allen was unable to pay the said note and desired an extension of the time within which to make payment thereof. The said George A. Allen, without the knowledge of B. A. Gross, Ada M. Gross, Charles F. Brandt and Della Brandt, defendants in error, applied to one George L. Murphy, banker, who held one of said trust deed notes, secured by said trust deed in question, for an extension of time for a period of one year within which to pay said obligation. George L, Murphy, acting as agent for the several holders of the trust notes, other than Gross and Brandt, had prepared an agreement to extend the time of payment, and instructed Albee, trustee, to sign the extension agreement for one year, and that the said George A. Allen came to the bank of Murphy, at Woodstock, and signed said extension agreement, and on a later date Albee, trustee at said bank of said Murphy, signed said extension agreement at the request of Murphy.

An agreement was entered into and signed whereby the loan was to be extended for one year in consideration of Allen paying six per cent instead of five per cent, at the rate of interest provided in said notes, said interest to be payable quarterly at the American National Bank at Woodstock. A written contract was entered into between Albee, trustee, and Allen, the debtor; neither Gross nor Brandt knew anything about the agreement at the time it was entered into.

When the period of extension had expired the notes remained unpaid. A bill to foreclose was then filed by the trustee and Murphy. Gross and Brandt were included among the parties defendant. They defended against the bill on the ground that they did not consent to the extension of time of payment of the notes secured by the trust deed; that the relation between them and Allen was that of principal and surety, and the extension of time, based upon a valuable consideration, without their knowledge and consent, worked a release of their liability.

After the issue was made up the cause was referred to the master in chancery to take proof and report findings as to the law and fact; the master found in conformity with the prayer of the bill, recommending decree of foreclosure, and also that in the event that the real estate in question should not sell for enough to satisfy a decree, that the defendants R. A. Gross, Charles F. Brandt and George A. Allen be held to be liable for any deficiency in the amount to be paid.

The defendants in error, ft. A. Gross, Ada M. Gross, Charles F. Brandt and Della Brandt, filed objections to the master’s report. The master heard the objections to his report and overruled the same. After the master filed his report in the circuit court, and overruled the objections of the defendants in error, the defendants in error then asked leave of the circuit court that the objections filed before the master stand and be considered as exceptions to the master’s report in the circuit court. This was allowed by the court and the objections filed before the master stood as exceptions to the report of the master in the circuit court.

The court heard the objections and after considering the same, entered a decree sustaining the objections to the master’s report; to that part of said report which finds the defendants in error, R. A. Gross, Ada M. Gross, Charles F^JBrandt and Della Brandt, original mortgagors, and mortgagor’s grantees, liable for deficiency decree, but the court found that the master’s report as to all other matters should be approved and confirmed by the court, and decreed accordingly.

The sole issue therefore presented for the consideration of the court is, Did the extension agreement, dated February 28,1925, signed by Albert Albee, trustee, and George A. Allen, then owner of the premises in question, made for an added consideration of one per cent, and without the knowledge and consent of the defendants in error, R. A. Gross, Ada M. Gross, Charles F. Brandt and Della Brandt, release them from liability for the payment of the trust deed notes secured by the trust deed, or from liability under deficiency decree upon foreclosure and sale of the premises in question?

After an investigation of the authorities bearing upon the contention of the respective parties to this proceeding, we are convinced that the decisions of the courts have not been uniform. Upon an examination of the cases in this State, we find that the ones sustaining the contention of plaintiffs in error are two, decided by the Appellate Court of the first district, viz., Morganroth v. Pink, 227 Ill. App. 244, and Elwell v. Hicks, 180 Ill. App. 554. There are two cases decided by the first district, viz., Johnston v. Paltzer, 100 Ill. App. 171, and Bascom v. Fox, 167 Ill. App. 1, and one in the second district, Wyatt v. Dufrene, 106 Ill. App. 214, and Brosseau v. Lowy, 209 Ill. 405, which sustain the contention of the defendants in error, so at the outset we have opinions in the Supreme Court and different districts of the Appellate Court, disagreeing as to what the rule should be, under the state of facts arising out of the record in this cause.

Much reliance is placed by plaintiffs in error upon Morganroth v. Pink, supra. Plaintiffs in error insist that the rule announced in Morganroth v. Pink, supra, was approved by the Supreme Court by its act in denying a petition for writ of certiorari. An examination of the case, in our judgment, discloses that the reason for the petition of certiorari being denied was that all the points of law raised in the latter opinion -had been presented to the Appellate Court for the first district, in said case as reported in Morganroth v. Pink, 216 Ill. App. 158. There was nothing new in the case as indicated in the opinion, when it subsequently was decided in the Appellate Court, where the court said in Morganroth v. Pink, 227 Ill. App. at page 247: “Defendant’s counsel now forcefully argue against our decision, but we must adhere to the rule that whatever was determined by this court on the former appeal is res adjudicata and the law of this case, and is binding on the parties, the trial court and this court in this case for all time.”

An examination of the Morganroth and the Elwell cases indicate that the decisions in both cases are principally based upon an interpretation placed upon Fish v. Glover, 154 Ill. 86.

Fish v. Glover, is a case in which the mortgagor conveyed the mortgaged premises without the knowledge of the mortgagee, and sought to excuse himself from the primary liability under section 1, Revised Statutes, chapter 132, Cahill’s St. ch. 132, ¶ 1, on the theory that he was a surety merely because of the assignment. The court held that the statute referred to a contract in writing, binding sureties, and not to contracts of suretyship, arising by implication.

In the present case there is a written document, to wit, an agreement for a consideration between the mortgagee and the grantee of the mortgagor, to which the mortgagor Gross and Brandt, as grantee, were not parties, which as such, by an act of the mortgagee, recognized and accepted the subsequent grantee, George A. Allen, and such subsequent grantee only as the principal debtor. The mortgagee thus estopped himself from holding the mortgagor as principal alone, or with the grantee, having entirely disregarded the mortgagor, when he, the mortgagee, for a valuable consideration granted an extension of the debt to the grantee.

The opinion in Fish v. Glover evidently is misinterpreted by the plaintiff in error, and as evidence of that fact we find that at page 91, the court quoted from Jones on Mortgages as follows: “The mere assignment by the mortgagor of his interest in the mortgaged premises to a third person who agrees to pay off the mortgage, does not release the mortgagor. There is no novation unless there be something to show that the mortgagee has released the mortgagor, and has agreed to look solely to the purchaser for payment of the mortgage debt. There must be a substitution of a new obligation for the old one, and the new obligation must be a valid one.”

In addition to the case of Fish v. Glover, the court in Elwell v. Hicks, and Morganroth v. Pink, supra, refer to the decisions in Schloten v. Barter, 217 Ill. 148, and Webster v. Fleming, 178 Ill. 140. In Fish v. Glover there was no fact that showed an extension of the time of payment by the holders of the notes, to the last grantee, who assumed the payment of the incumbrance. In Scholten v. Barber, supra, the grantees were grantees under quitclaim deeds in which no reference was made of the incumbrance, and the facts did not show any extension of the time of payment of the indebtedness secured by the incumbents, and in the case of Webster v. Fleming, supra, there was no extension of the time of payment of the indebtedness.

It appears, therefore, that the Supreme Court cases relied upon, viz., Webster v. Fleming, 178 Ill. 140; Scholten v. Barber, 217 Ill. 148, are not authority for the conclusions reached in Elwell v. Hicks and Morganroth v. Pink, supra. Plaintiffs in error rely on the cases of Keller v. Ashford, 133 U. S. 610; Denison University v. Manning, 65 Ohio St. 138. These cases, together with a number of others are reviewed in In re Both, 272 Fed. 516, which holds against the contention of the plaintiffs in error and supports that of the defendants in error, and among other things says: “If, after learning of the change of relationship effected by the agreement between the mortgagor and mortgagee, he sees fit to enter into contractual relations with the grantee, then he, in a sense, makes himself a party thereto, and must in so contracting and henceforward deal with the parties in view of that changed relationship. This imposes upon him no hardship, and does not against his will alter his original contract. If he by this contract with the grantee or thereafter releases the grantee, or by valid agreement extends the grantee’s time of payment, or otherwise alters the terms of the original obligation, no good reason is perceived why the rule applicable as between principal and surety should not be applied to him.”

The contention of the defendants in error is fully sustained in Wyatt v. Dufrene, 106 Ill. App. 214. The contention of defendants in error is also supported in Johnston v. Paltzer, 100 Ill. App. 171, and Bascom v. Fox, 167 Ill. App. 1. In discussing the questions bearing upon the rule involved in the instant case, in Brosseau v. Lowy, 209 Ill. 405, at page 410 the court said: “In the case at bar, Coombs, the trustee in the trust deed, at the solicitation and request of one or both of the Boenerts, and without the knowledge of the mortgagor, Ziese, not only extended the time of payment of the indebtedness, but released more than enough of the land covered by the trust deed necessary to make good the entire debt; so the mortgagor must have been released, even as to the liability of the surety, which relation he might otherwise have held.”

Union Mut. Life Ins. Co. v. Hanford, 143 U. S. 187, was a suit in equity filed by the Union Mutual Life Insurance Company, a corporation of Maine, against Hanford, et al. citizens of Illinois, to foreclose a mortgage on land in Chicago, and to obtain a decree for any balance due the plaintiff above the proceeds of the sale. Fake and wife, two of the defendants, were defaulted. Hanford and Chase answered. The principal defense relied upon by Hanford and Chase was that they were discharged from personal liability on the notes by the extension of the time of payment, without their consent. In its opinion, the court, among other things, said: “By the law of Illinois, where the present action was brought, as by the law of New York and of some other states, the mortgagee may sue at law a grantee who, by the terms, of an absolute conveyance from the mortgagor, assumes the payment of the mortgage debt. Dean v. Walher, 107 Ill. 540, 545, 550; Thompson v. Dearborn, 107 Ill. 87, 92; Bay v. Williams, 112 Ill. 91; Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 253. According to that view, the grantee, as soon as the mortgagee knows of the arrangement, becomes directly and primarily liable to the mortgagee for the debt for which the mortgagor was already liable to the latter, and the relation of the grantee and the grantor towards the mortgagee, as well as between themselves, is thenceforth that of principal and surety for the payment of the mortgage debt. Where such is held to be the relation of the parties, the consequence must follow that any subsequent agreement of the mortgagee with the grantee, without the assent of the grantor, extending the time of payment of the mortgage debt, discharges the grantor from all personal liability for that debt. Calvo v. Davies, 73 N. Y. 211; Home Nat. Bank of Chicago v. Waterman, 134 Ill. 461, 467.

“The case is thus brought within the well settled and familiar rule that if a creditor, by positive contract with the principal debtor, and without the consent of the surety, extends the time of payment by the principal debtor, he thereby discharges the surety; because the creditor, by so giving time to the principal, puts it out of the power of the surety to consider whether he will have recourse to his remedy against the principal, and because the surety cannot have the same remedy against the principal as he would have had under the original contract; and it is for the surety alone to judge whether his position is altered for the worse. * * * In the case at bar, the mortgagee, immediately after the absolute conveyance by the mortgagors, was informed of and assented to that conveyance and the agreement of the grantee to pay the mortgage debt, and afterwards received interest on the debt from the grantee; and the subsequent agreement by which the mortgagee, in consideration of the payment of a sum of money by the grantee, extended the time of payment of the debt, was made without the knowledge or assent of the mortgagors. Under the law of Illinois, which governs this case, the mortgagors were thereby discharged from all personal liability on the notes, and the Circuit Court rightly refused to enter a deficiency decree against them.”

In Jones on Mortgages, 7th Ed. section 741, he says: “A purchaser who assumes the mortgage becomes as to the mortgagor the principal debtor, and the mort-gagor a surety; but the mortgagee, unless he has assented to such an arrangement, may treat both as principal debtors. * * * The change of position can only be brought about, as regards the mortgagee, by his voluntary agreement to accept the grantor and grantee in their relation of principal and surety. * * * The mortgagee may release the mortgagor from his personal liability in such case without discharging the land, or the grantee, who assumed the debt. But he cannot release the grantee, who has thus become the principal debtor, without releasing the mortgagor who has become the surety. He may, by his dealings with the purchaser and mortgagor, recognize the former as the principal debtor, and the latter as surety toward himself. Any material alteration of the mortgage contract will discharge the mortgagor.” In section 742, he goes on to say:

“A purchaser having assumed the payment of an existing mortgage, and thereby become the principal debtor, and the mortgagor a surety of the debt merely, an extension of the time of payment of the mortgage by an agreement made upon á valid consideration between the holder of it and the purchaser, without the concurrence of the mortgagor, discharges him from all liability upon it. In such case the mortgagor’s liability is extinguished, notwithstanding the agreement of the extension between mortgagee and grantee expressly declared that it should not impair the security or any condition of the bond and mortgage.”

In George v. Andrews, 60 Md. 26, 45 Am. Rep. 706, it is said that when a mortgagor sells the mortgaged property to one who agrees to pay the debt for which the security was given, he has the right upon any default by his grantee, in the payment of the principal or interest, to have the property immediately sold, and this right can be exercised by a demand upon the mortgagee to pursue his remedy against the property, a demand which the latter cannot disregard; and that when, by a valid agreement between himself and the grantee for an extension of the time of payment, the mortgagee deprives himself of the ability to meet such demand from the mortgagor, the latter is released from all personal liability.

"Where the grantee of mortgaged premises assumed and agreed to pay the mortgage debt, and subsequently made an arrangement with the mortgagee for an extension of the time of payment, the court in Codman v. Deland, 231 Mass. 344, 121 N. E. 14, said that by the agreement with the mortgagee, the grantee became the principal debtor, and it follows that the agreement for the extension of time of payment operated to discharge the mortgagor; that the fact that the agreement to pay the debt and to grant the extension of time of payment was embodied in the same instrument was immaterial. The reason upon which the rule rests, that a binding extension of time given by a creditor to a principal debtor, without the consent of the surety, releases the latter, is, that a surety on paying the debt has a right to subrogation; but by subrogation he gets only such rights as the mortgagor actually has; therefore, when the creditor has postponed the debt, the security, on paying it, cannot sue the principal until the extension expires; but the surety, by the only contract to which he has ever consented, has a right to so sue the principal at any day after the debt matured; hence, the extension deprives him of his right, and from that fact the law conclusively presumes an injury to him and releases him from liability.

In the case at bar the extension agreement contained a provision to the effect that all of the provisions, stipulations, powers and covenants in the principal notes and trust deed shall stand and remain unchanged. It is the contention of plaintiffs in error that this language shows an intent that the mortgagor was not to be released from his obligation, and that the extension agreement was intended in no manner to affect him.

In Metzger v. Nova Realty Co., 214 N. Y. 26, an extension agreement was as follows: “Nothing herein contained shall impair the security now held for said debt, or any condition or agreement contained in said bond and mortgage, which bond and mortgage the party of the second part hereby ratifies and confirms as modified by this agreement.” In its opinion the court said: “We may inquire what was the situation of the parties on May 1st, 1910. The plaintiff had without the consent of Nova Realty Company extended the time of payment of the principal sum secured by the bond and mortgage for a period of three years. He had thereby denied to himself the right to foreclose the mortgage immediately fifter May 1st, 1910, and the mortgage by reason of the extension of time not being due the Nova Realty Company could not pay the debt to the plaintiff and become substituted to the mortgage security and proceed against the land by foreclosure. Had it paid the mortgage to the plaintiff and undertaken to foreclose the same it would be met by the defense that the mortgage debt was not due. If the Nova Realty Company demanded of the plaintiff that the mortgage be foreclosed, such demand would be futile; plaintiff had by the agreement to extend the time of payment created a condition which would estop him from maintaining such action.

“We think it clear that by the action of the plaintiff, the mortgagee, he denied to the Nova Realty Company the equitable rights vested in it. If he could legally extend the time of payment for three years without the consent of the company, he could make a like extension for a period of ten years or even a greater number of years, and, upon his theory, continue the liability of the Nova Realty Company, upon the bond.”

In Maier v. Thorman, — Tex.- Civ. App. —, 234 S. W. 239, it was held that the mortgagor was released from personal liability on a note secured by a mortgage by an extension of the time of payment given by the mortgagee to a purchaser of the property who had not assumed payment of the debt, without the knowledge and consent of the mortgagor, although the extension expressly provided that the holder of the note, by granting such extension, did not in any way waive, lose or relinquish any of the liens securing the same or of the personal liability of any persons now liable thereon.

From what is disclosed by the record there can be' no question but what Albee, the trustee, received a .consideration for making a vital alteration in the terms of the original contract made between himself and the mortgagor, Gross; he thereafter looked to Allen for primary liability, having failed to consider the right of either Gross or Brandt, when he changed the terms of the contract, calling for payment of the notes.

While we recognize that the decisions have not been uniform upon the question as presented by the record in this proceeding, after an examination of numerous authorities, we are of the opinion that the weight of authority sustains the contention of the defendants in error, and being of that opinion, the decree and judgment of the circuit court of Winnebago county is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    First Trust & Savings Bank, Trustee under the Last Will and Testament of Lucius G. Fisher, Deceased, Appellant, v. Economical Drug Company, Appellee.
    Gen. No. 32,531.

      Opinion filed October 3, 1928.
    Behearing denied October 16, 1928.
    Hoag & Ullmann, for appellant.
    Good, Childs, Bobb & Wescott and Edwin A. Hunger, for appellee; James B. Wescott and F. M. Hartman, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Complainant, as trustee of the estate of Lucius G. Fisher, deceased, filed its bill in equity against defendant praying for an injunction enjoining it from cooking and from selling in the premises demised to it in the Fisher Building, situate on the northeast corner of Van Burén and Dearborn Streets, in the city of Chicago, any edibles, except candy, etc. There was a reference to a master who reported that complainant was not entitled to the relief prayed and recommended that the bill be dismissed for want of equity. On a hearing before the chancellor, the report of the master, together with his recommendation, was approved, and a decree entered dismissing the bill for want of equity, and complainant brings the record to this court for review by appeal.

The term granted by the lease was 10 years from May 1, 1924. The premises demised were to be used as a drug store with the right to sell candy, cigars and soft drinks, and for no other purpose.

The clauses in the lease between the parties, which are involved in the controversy projected by the bill, are the following:

‘' That the lessor * * * has demised and leased * * stores * * * in the Fisher Building * * * to be occupied by said lessee for a drug store, with the right to sell candy, cigars, and soft drinks, and for no other purpose whatsoever.”

Paragraph 11. ‘ ‘ The said lessee is hereby given the exclusive right to maintain a drug store in the said building, as aforesaid, with the limitations and restrictions herein contained, and also the exclusive right to sell cigars and cigarettes.”

Paragraph 17. “It is expressly understood that the lease dated April 24th, 1916, from Charles B. Osborne, as trustee under said last will and testament of Lucius Q-. Fisher, deceased, to the John R. Thompson Company gives to said John R. Thompson Company the exclusive right to maintain a restaurant in said building, and the lessee herein further covenants and agrees that it will not sell anything in the way of edibles on said premises that will in any way conflict with said exclusive right, and that it will do no cooking on said premises.”

The following clauses in the so-called Thompson lease (which lease is part of the evidence in the record) are pertinent to the rights of the parties to this suit, viz:

“The said lessee is hereby given the exclusive right to maintain a restaurant in said building, except in so far as the lessee of the buffet may furnish a free lunch to its. patrons.
“The said lessee is hereby given the exclusive right to maintain a restaurant in said building but which shall not include the right to sell liquor, cigars, tobacco, or cigarettes except as hereinafter provided.”

A great deal of testimony appears in the record, taken before the master as to a custom prevailing in the so-called “loop” of the city of Chicago regarding what articles are ordinarily sold in a “Drug Store,” and to define the meaning of the word “Drug Store” within such local environment. Such evidence is not only enlightening but historically interesting. However, the inherent difficulty with such evidence is its immateriality to the relief sought by the averments, of the bill and its prayer for relief. The whole controversy injected by the bill is confined to the breach of covenants in the lease regarding the occupation of the premises. In the granting -clause the following words are used:

“That the lessor * * * has demised and leased * * * stores * * * in the Fisher Building * * * to be occupied by said lessee for a drug store with the right to sell candy, cigars and soft drinks, and for no other purpose whatsoever.
“The said lessee is hereby given the exclusive right to maintain a drug store in the said building as aforesaid, with the limitations and restrictions herein contained, and also the exclusive right to sell cigars and cigarettes.”

Then occurs the following provision in Paragraph 17, after reciting the making of the John R. Thompson Company lease with its exclusive right to maintain a restaurant in the “Fisher Building”:

“And the lessee herein further covenants and agrees that it will not sell anything in the way of edibles on said premises that will in any way conflict with said exclusive right, and that it will do no cooking on said premises.”

The foregoing covenants and conditions run during the whole of the term demised in the lease, so that the expiration of the Thompson lease recited in the Drug Company lease and the granting of a new term to the Thompson Company in no way affects or detracts from the force of the covenants and provisions above recited. Furthermore, there is no provision in defendant’s lease that the landlord will not grant a renewal of the Thompson lease with an exclusive covenant to operate and maintain a restaurant in the building. So far as defendant is concerned the landlord was free to deal with the Thompson Company upon such terms and covenants to which they might mutually agree. It seems to us idle to contend that in effect defendant can in any way or manner influence the exclusive right which Thompson procured to operate a restaurant in the Fisher Building, either under the first lease or any renewal or extension of the same, so that defendant is in no way legally concerned in the renewal of the Thompson lease. It bears no equation to its rights in the premises. It is the contract of lease originally be: tween complainant and the Home Drug Company, to the latter of whose rights defendant succeeded, which is the bone of contention. What a drug store by custom dispenses in the loop lends no light to the solution of the problem actually involved in this case. The question is not what a drug store may sell, but what the defendant under the covenants of the lease may not sell. This case must be decided within the four corners of the lease between the parties before us, and we cannot add to or detract from that document by giving any heed or attention to any contemporaneous conversations or oral agreements made either before or subsequent to the execution of the lease. Prior conversations are in law merged in the subsequently executed lease and subsequent ones are impotent to in any manner change the writing. Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102.

In the instant case defendant expressly admits its violation of the covenant not to sell edibles on the demised premises by admitting that it was selling edibles thereon at and before the filing of complainant’s bill. There is no ambiguity in the several clauses in the lease limiting the power of defendant in the conduct of its-drug business. ‘ That it will not sell anything in the way of edibles,” and that it will in no way do anything that conflicts with Thompson’s exclusive right to maintain a restaurant in the Fisher Building, and that it will do no cooking on the premises, are readily understood phrases and contain nothing of an ambiguous character, so that he that reads can easily understand. The words used to express the meaning intended were plain, and unambiguous, and need no construction. That defendant would sell no edibles nor do any cooking on the demised premises meant just exactly what the words naturally import, neither more nor less.

Defendant urges in argument that complainant is not entitled to maintain its bill for injunction because it has an adequate remedy at law by a suit in “Forcible Entry and Detainer,” Cahill’s St. ch. 57, a statutory remedy. This suggestion is highly impracticable. The object of renting premises is to make money from rentals. An action in forcible entry and detainer would be no adequate remedy. It would destroy the lease and leave the leased premises vacant and tenant-less. Such would not be remedial. It would be destructive of the landlord’s most valuable asset, the lease, together with the rent flowing therefrom. The only adequate remedy open to complainant was the one availed of by this proceeding to enjoin defendant from further violating the covenants which the bill avers defendant had violated, and at the time of the filing of the bill, continued to violate, Defendant in effect admits such violation. It seems but reasonable in the circumstances appearing from the record before us that the injunctional remedy prayed for is the only one that could give complainant adequate relief and the relief to which complainant undoubtedly is entitled. It cannot be disputed that there is no contractual relationship between the Thompson Company and the defendant,- so that the Thompson Company could not maintain an action against defendant for its action in depriving the Thompson Company of the exclusive right granted to it in its lease to maintain and operate a restaurant in the Fisher Building. While it may not be the legal duty of complainant to protect the Thompson Company from being deprived of its contract right under its existing lease by the conduct of defendant depriving it 'of the exclusive right, granted to it in its lease, to operate a restaurant in the Fisher Building, yet it cannot be gainsaid that from a moral viewpoint complainant should do all things needful and possible to protect the Thompson Company from any invasion by anybody in the enjoyment of all the rights granted to it by complainant under the existing lease. This injunctional proceeding, if given effect by an injunctional order, as prayed for, will have the effect of protecting the Thompson Company against the invasion of defendant, which, if permitted to continue will deprive it .from availing of the right granted to it to exclusively niaintain and operate a restaurant in the Fisher Building. ■ This will at least operate to prevent a multiplicity of suits which is another arm of equity jurisdiction, and likewise enables complainant to protect the Thompson Company in the right granted to it by its lease to operate exclusively a restaurant in the Fisher Building.

The remedy of complainant for the alleged breach óf the covenant in its lease inhibiting it from selling edibles-and from cooking upon the demised premises is by injunction. There are many authorities which so hold. Among them are the following: Bryden v. Northrup, 58 Ill. App. 233, where the premises were demised to - be occupied for studio, salesroom and dwelling purposes and for no other purposes. A subtenant of the lessee fitted up a part of the premises for a saloon. In affirming a decree restraining such use .of the demised premises, the court said:

“The words of the lease made a condition that the premises should be occupied ‘for no other purpose’ than those mentioned. White v. Naerup, No. 5351, this court * * *.
■ “To prevent the occupation for a purpose within the prohibition in the lease, equity will interfere. Taylor, Landlord & Tenant, sec. 416.” The court affirmed the decree granting an injunction.

In Star Brewery Co. v. Primas, 163 Ill. 652, the court puts this query in its opinion affirming an injunctional decree for a violation of a covenant similar to the one in the instant case:

“Under these circumstances is there any reason why an injunction will not lie to restrain a use of the property, which is contrary to the terms of the clause in question?” And answering the question, we say, “None.” To a similar effect is Davis v. Driver,— Tex. Civ. App. —, 271 S. W. 435, where the tenant was enjoined from violating a restrictive covenant in the lease as to occupancy. The premises were leased, the opinion reads, “to be used and occupied as a drug store and jeweler stand * * * and not otherwise. ” A decree was entered enjoining the tenant “from preparing, cooking, selling, and serving food * * * in a building leased by appellees to appellants by written contract, which provides that the premises are ‘to be used and occupied as a drug store, * * *.’ ” The space under lease opened into the lobby of the Roselyn Hotel in a three-story building, the bill. alleging that the appellants without consent “began a café and restaurant business on the premises leased to them, preparing, cooking, selling, and serving meat, mashed potatoes, * * pie, sandwiches, etc.,' in violation of the lease * *. Appellants urge that the judgment of the court is erroneous because appellees had an adequate remedy at law.” Continuing, the court in affirming the injunctional judgment order, said:
“It is our opinion that the lessors are within their rights in limiting the use of the leased premises to any specific business by contract, and that the stipulation in the lease contract excludes the idea of permitting the use and occupancy of the leased premises as a café or restaurant.” Weil v. Abrahams, 53 N. Y. App. Div. 313; Consolidated Coal Co. of St. Louis v. Schmisseur, 135 Ill. 371, in which latter case the court, inter alia, said:
“It is well settled, that whenever the use to which premises are sought to be appropriated is inconsistent with the purposes for which they were let, and the change will operate to the injury of the lessor, the aid of such court may properly be invoked. In respect of purely negative covenants annexed to or contained in contracts or leases, courts of equity will frequently interpose by injunction, and indirectly enforce specific performance of such negative covenants by prohibiting their breach; and it seems to be well settled, that where there is an express negative covenant, courts of equity will entertain bills for injunction to prevent their breach, although the same will occasion no substantial injury, or though the damages, if any, be recoverable at law. This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions and covenants as he pleases touching the mode of enjoyment and use of the land.- As said in Steward v. Winters, 4 Sandf. Ch. 587: ‘He is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with "him must abide by the definition.’ (Hill v. Miller, 3 Paige, 254; Macher v. Foundling Hospital, 1 Ver. & B. 188; High on Injunctions, 1142.) In this latter class of cases the court proceeds upon the ground that the grantor or lessor having expressly stipulated that the grantee or lessee shall not do the particular thing complained of, the latter is bound to refrain, and the former is not required to submit to the opinions of others as to whether he will or will not suffer substantial injury.”

In Sullivan v. Monahan, 123 Ill. App. 467, the premises were leased “for the purpose of conducting a saloon business.” The tenant quit the saloon business and in its place conducted a restaurant. In reversing a judgment for the defendant in forcible entry and detainer where there was a restrictive covenant, the court said:

“It is conceded that the only question presented for our consideration and determination is, whether the language in the lease, viz.: ‘for the purpose of conducting a saloon business, ’ should be held to constitute an express or necessarily implied covenant restricting the use by appellees of the leased premises to the saloon business, or whether the right of appellees to conduct a saloon business is thereby merely super-added to their right, in the absence of any restrictions, to use the premises for any purpose for which they are adapted, so long as they commit no waste or nuisance.
“The familiar rule of interpretation, that the expression of one thing is the exclusion of another, seems applicable in the construction of the lease here involved. The purpose for which the premises were to be used being expressed, it follows that their use for any other purpose must be held to be, by necessary implication, if not by express covenant, prohibited.”

In the case supra, the court ruled that notwithstanding the lease did not provide that the premises should not be used for any other purpose than the one designated in the lease, still that the expression of one use by implication precluded the right of the tenant to use the demised premises for any other use than the one specified in the lease.

In consonance with what we have said in the expression of our views regarding the right of complainant to the injunctional relief prayed, the decree of the superior court dismissing complainant’s bill for want of equity is reversed, and the cause is remanded with directions to the superior court to enter a decree enjoining defendant permanently, as prayed for in the bill.

Decree reversed and cause remanded with directions.

Wilson and Taylor, JJ., concur.


text:
    Sadie Risedorf, Defendant in Error, v. James Fyfe, Plaintiff in Error.
    Gen. No. 32,619.

      Opinion filed October 3, 1928.
    Rehearing denied and opinion modified October 17, 1928.
    McGinnis & Sadoski, for plaintiff in error.
    Maxwell R. Herman and Werner H. Sommers, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries resulting from the automobile of defendant striking and injuring the plaintiff. Originally James Fyfe and his wife, Ruth Fyfe, were defendants. At the trial defendant Ruth Fyfe was dismissed out of the case.

The defendant, James Fyfe, was served with a pluries summons returnable to the January term, 1926, of the court, and as to Ruth Fyfe, pluries. summons was returned not found. The summons was served too late for the January term, and under the statute the cause stood continued to the February term. On February 15, 1926, the first day of the February term, the defendants entered their appearance in writing in their own proper persons, giving their street address where notices could be served on them in compliance with section 16, chapter 110, R. S., of the Practice Act, Cahill’s St. ch. 110, ¶ 16.

Neither of the defendants pleaded to the action and on April 8, 1926, both of them were defaulted without giving any notice to either of the defendants of such intended action. On April 29,1926, plaintiff dismissed as to the defendant Ruth Fyfe, and the cause proceeded to trial against the defendant James Fyfe, without the giving of any notice of such proposed trial when a jury was impaneled, who assessed plaintiff’s damages at the sum of $7,500 against James Fyfe, and a judgment thereon was entered by the court.

At the time of the trial defendant was not present in court and the case was not on the regular trial call.

On October 7, 1927, defendant James Fyfe filed a motion to vacate the judgment. To this plaintiff interposed a demurrer which the court sustained, and this writ of error is sued out in an effort to reverse the judgment and the proceedings leading thereto.

There is found in the bill of exceptions Rule 20 of the circuit court, which reads:

“No motion will be heard or order made in any cause without notice to the opposite party when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the trial calendar.”

Neither of the defendants could be held to be in default until the expiration of a rule upon them to plead, and no notice of any application for a default was served upon defendants. In these circumstances the court proceeded to an assessment of damages without jurisdiction so to do.

Under section 16, supra, defendants were entitled to notice of an application for a default against them, and for the assessment of damages. With their appearance on file they had the right to appear in the absence of any plea to the declaration and to cross-examine witnesses in diminution of damages, and to offer evidence for the like purpose.

The action was for unliquidated damages. By section 44, Cahill’s St. ch. 110, ¶ 44, it is provided that “On the appearance of the defendant or defendants, Ithe court may allow such time to plead as may be deemed reasonable and necessary. ” And in section 57, Cahill’s St. ch. 110, ¶ 57, it is provided that “For want of appearance the court may give judgment by default, except in cases where the process has not been served, or declaration filed, ten days before the term of the court.”

A defendant entering his appearance is entitled by the statute and under the rule, supra, to notice of all steps to be taken in the action and no default can legally be entered against a defendant whose appearance has been entered in writing without notice, as provided by the statute and Rule 20, supra.

There is a distinction between a defendant who is defaulted for want of a plea where there is no appearance, and where one enters his appearance without pleading. One who fails to enter an appearance or plea is subject to be defaulted without notice, but where a defendant enters his appearance a default cannot be taken against him without notice, nor any step in the proceeding taken without giving him notice.

In American Mail Order Co. v. Marsh, 118 Ill. App. 248, it was held that the entry of an order of default against a defendant whose appearance has been entered and is on file, without notice to such defendant of such application, is erroneous, and that such defendant is not in default until there has been a rule entered against him to plead, saying: “After appearance, he is entitled to notice of every step in the case until a default has been regularly entered against him. Appellant, having entered its appearance, was therefore entitled to notice of the execution of the writ of inquiry as to the amount of damages. Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235.”

In Plaff v. Pacific Exp. Co., 251 Ill. 243, it was held that it was error to enter a judgment by default without notice, where a defendant had a written appearance on file. While in that case the Supreme Court refused to disturb the judgment, the ground of it was that the defendant, or his attorney, had been guilty of negligence. There is no negligence in this case claimed to be attributable to defendant.

' In Straus v. Biesen, 242 111. App. 370, the court held that it was error to assess damages without notice to defendant whose appearance was on file, and for that reason reversed the judgment.

Proceedings under section 89 of the Practice Act, Cahill’s St. eh. 110, ¶ 89, required the court to pass on the question as to whether there was an error in fact in the record before it. We will presume that if the court had known that the defendant had his appearance upon file, and that no notice had been given him of the application for default and judgment, the court would not have proceeded to assess the damages in the case. The absence of notice'was a question of fact which was not brought to the attention of the court, and did not involve a question of law. The question of law must be based upon the fact, and the law was that without notice to the defendant, whose appearance was on file, there could be no valid judgment. That no notice was given, and that defendant’s appearance was on file, were matters of fact which were unknown to the court.

For the errors above pointed out, the order of default is vacated and the judgment of the circuit court is reversed with directions to permit the defendant, James Fyfe, to appear and plead to the merits of the action.

,Reversed and remanded with directions.

Taylor and Wilson, JJ., concur.


text:
    C. W. Boxwell for use of Sigurd A. Thorsen, Appellant, v. Lion Oil Company, Appellee.
    Gen. No. 32,642.
    Opinion filed October 3, 1928.
    Frederick A. Gariepy and Owen Rall, for appellant.
    Charles E. Carpenter, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The record discloses that Sigurd A. Thorsen obtained a judgment by confession against C. W. Box-well, in the municipal court of Chicago, for the sum of $1,237 and costs.

' That an execution on said judgment issued in due course and was returned nulla bona and no part satisfied June .7,1926.

On March 17, 1927, plaintiff sued out a writ of garnishment against defendant Lion Oil Company, a corporation, as garnishee, and filed certain interrogatories to be answered by said garnishee, which were answered in substance denying that the garnishee owed any money to Boxwell or had in its possession property of any kind belonging to him. Issue was joined on the answers and a trial before a judge of the court resulted in a finding and order that Boxwell, for the use of Thorsen, take nothing by his garnishee suit and that defendant, Lion Oil Company, be released and discharged as such garnishee. From the latter order Boxwell for use of Thorsen prosecutes this appeal.

It appears from the evidence that the “Standard Tire Service Company” operated an oil filling station at Ohio and La Salle Streets in Chicago, and that “Box-well’s Service incorporated” succeeded the Standard Tire Service Company in operating said oil filling station; that the land on which the oil station stood was owned by one Palmer and that the Tire Company originally leased the property from Palmer and that the Boxwell Service Company succeeded to the right and title of the Standard Tire Service Company; that the Boxwell Service Company was indebted to the Lion Oil Company to the amount of $4,528.25, and to other creditors in the sum of $3,953.60, besides owing rent to Palmer, all of which it was then unable to pay. In this condition the Oil Company and the Boxwell Service Company entered into a written contract whereby the business of the Boxwell Company was turned over to the Oil Company, to operate and manage during the unexpired term of the Palmer lease, November 15, 1927, with the agreement that the net profits of the operation of the filling station, if there were any, were to be applied to the payment of the existing debts of the Boxwell Company, and when the debts were paid the property and business of the filling station were to be returned to the' Boxwell Service Company; that the Oil Company went into possession and operated the business until June 2, 1926, at a loss to the Oil Company of $1,504.3-9. Because of this loss the Oil Company concluded to abandon the further operation of the business and to return the same to the Boxwell Service Company, and so informed Boxwell and Palmer, the landlord. Thereupon by the consent of all the interested parties, the lease to the land on which the filling station stood was, as well as the contract between the Oil Company and the Boxwell Company, canceled and a new lease made by Palmer to the Oil Company; that thereafter the Oil Company made improvements upon the property and paid for them and started operating the station in its own name, and the Boxwell Company gave to the Oil Company a note dated December 14,1925, for the amount of its indebtedness to the Oil Company, and secured the same by a chattel mortgage upon the filling station property. This mortgage was foreclosed and the property sold to the Oil Company for the amount due on the note.

There is no contention that Boxwell personally ever owned the filling station. Such fact was well known to Thorsen, because when the business of the filling station was originally operated by the Standard Tire Service Company, both Thorsen and Boxwell were stockholders in that company. Both Boxwell and Thorsen were officers of that company. Thorsen thereafter sold his stock in the Standard Company to Box-well. From the evidence it is clear that Boxwell personally never owned the property of the Boxwell Service Company and the title thereto, at the time of the Oil Company’s operation of it, remained in the Box-well Service Company and that the purpose of such operation was from the profits anticipated but not made therefrom to pay the existing indebtedness from the Boxwell Company to the Oil Company.

As Boxwell the individual was in no wise connected with the matters involved in this litigation he is in no position to invoke the Bulk Sales law, Cahill’s St. ch. 121a, in the transactions between the Boxwell Company and the Oil Company. There was never any indebtedness existing between Boxwell personally and the Oil Company. The transactions involved in this litigation were between the two corporations and no one else. Boxwell personally has no standing to invoke the Bulk Sales Act, as he was not a creditor of the Boxwell Company when the sale challenged was made. As held in Lawndale Sash & Door Co. v. West Side Trust & Savings Bank, 207 Ill. App. 3, the Bulk Sales Act has no application where a person is not a creditor at the time of the sale of the business of the corporation concerned. As shown by the record in this case, neither Boxwell nor Thorsen has any standing in the instant case to challenge or impugn any dealing or transaction between the Boxwell Service Company and the Lion Oil Company. When the garnishee case was commenced the garnishee Lion Oil Company was not indebted to Boxwell the individual on any .account whatsoever.

For the reasons heretofore given in this opinion the judgment of the municipal court is affirmed.

Affirmed.

Wilson and Taylor, JJ., concur.


text:
    J. D. Fulrath, Trading as Fulrath Nash Sales, Appellant, v. Richard Wolfe, Appellee.
    Gen. No. 32,664.

      Opinion filed October 3, 1928.
    Rehearing denied October 16, 1928.
    Harold L. Ickes, for appellant.
    Adler, Lederer & Kahn and Thomas B. Brown, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The action is libel.

The cause was disposed of by a judgment of nil capiat when the court sustained a general and special demurrer to plaintiff’s second amended declaration and plaintiff brings the record here for review on-appeal.

The offending letter is in the following words:

“Chicago Nash Company Motor Cars and Trucks Telephone Calumet 2000 2000 Michigan Boulevard
H. T. Hollingshead
President Chicago
May 28th, 1926.
Mr. J. D. Fulrath, % Fulrath Sales 7937 South Chicago Ave., Chicago, Illinois.
Dear Sir:
In view of the facts disclosed by our investigation into your methods of merchandising Nash cars, we must discontinue our business relationship with you to take effect as mutually agreed upon between ourselves about ninety days ago.
You may consider this as formal notice to that effect — and confirming our conversation and understanding that we had with you yesterday afternoon.
Yours truly,
Chicago Nash Company-Richard Wolfe, Secretary.”
The letter with its innuendoes as set out in the declaration demurred to is as follows:
“Chicago Nash Company 2000 Michigan Boulevard Telephone Calumet 2000 Chicago
H. T. Hollingshead President
May 28, 1926
Mr. J. D. Pulrath, % Pulrath Sales 7937 South Chicago Ave.,
Chicago, Illinois
Dear Sir:—
In view of the facts disclosed by our (meaning Chicago Nash Company, Richard Wolfe, Secretary) investigation into your (meaning the plaintiff doing business as Pulrath Nash Sales) methods of merchandising Nash cars, (meaning that plaintiff’s business methods were unethical and that plaintiff was a ‘gypper’) we (meaning Chicago Nash Company, Richard Wolfe, Secretary,) must discontinue our business relationship with you (meaning the plaintiff doing business as Pulrath Nash Sales) to take effect as mutually agreed upon between ourselves about ninety days ago.
You. (meaning plaintiff doing business as Fulrath Nash Sales) may consider this as formal notice to that effect — and confirming our conversation and understanding that we (meaning the Chicago Nash Company, Richard Wolfe, Secretary,) had with you (meaning the plaintiff doing business as Fulrath Nash Sales) yesterday afternoon, (referring to the said accusation of the said defendant that said plaintiff was ‘gypping’ and was a ‘gypper’).
Yours truly,
(Signed) Chicago Nash Company Richard Wolfe Secretary.”

It is not in dispute that the letter first above set out is not libelous or defamatory per se, but plaintiff contends in effect that adding to the offending letter certain innuendoes set out in the declaration, together with certain oral conversations therein set out read into the letter, stamps it as libelous and defamatory of plaintiff.

The gravamen of the libel, plaintiff insists, arises from the innuendoes averred, as the meaning intended to be conveyed by the letter and oral conversations in effect charged plaintiff with being a “gypper.”

This contention raises the important issue as to whether a nonlibelous letter can be made libelous by combining with it certain words uttered by defendant in the presence of third parties, which, if they can be legally read into the letter, would change it from being one devoid of the elements of libel into a libelous communication. As the letter in itself is admittedly non-libelous, we are not concerned regarding its publication by defendant if the slanderous words previously uttered cannot, for the purpose of establishing the libelous character of the letter, be read into it. We have not been referred to any case, nor are we acquainted with any, holding that contemporaneous or previously uttered slanderous words may be read into the non-libelous article and thereby change its character from that of nonlibelous to one of libel. Plaintiff stresses that reference to plaintiff as a “gypper” in conversation can be read into the alleged libelous letter- to give it its true and well understood meaning. This might be well enough if the word “gypper” anywhere appeared in the so-called libelous letter, but that word is nowhere found in the letter. The innuendoes found in the declaration as to what was intended by defendant in the use of the word “gypper” has no application to the stigmatized libelous letter, as that word is not there found. Such innuendoes are not available to impute a libel to the letter which in itself is otherwise innocent of any libelous meaning. The innuendoes set out in the pleader’s interpretation of the intended meaning" of defendant, in the words used in the letter, cannot be imputed to him for the purpose of changing an innocent letter void of any libelous interpretation, into that of one tainted with libel. It therefore follows that in legal contemplation and by legal construction, the innuendoes interpreted into the letter set forth, with such innuendoes in plaintiff’s first count of his amended declaration, have no place there and aré futile to impart a libelous character to such letter — nor are the slanderous words set out in the amended declaration, as being spoken by defendant of and regarding plaintiff, available to be read into the letter for the purpose of impressing such letter in itself innocent of libel, into that of a libelous character. The innuendoes in order to be available as a pleading in libel must be of the very words and phrases used in the letter upon which the libel charged is grounded. An examination of the amended declaration, with its interpretation of innuendoes as to the meaning of words not found in the alleged libelous letter, utterly fails to state by that pleading a libelous cause of action. Slanderous words uttered by defendant of and concerning plaintiff would not be receivable as evidence supporting the libel alleged to arise from the contents of the letter set out in the first count of plaintiff’s amended declaration after disregarding the innuendoes there set out as to words not found in the letter. If the word “gypper” was anywhere found in the letter these observations would have no application. While the spoken words may be actionable in a suit in slander, they have no force in an action of libel as in the case at bar. While it is true that if the slanderous words previously uttered were connected with the words in the so-called libelous letter they might be admissible in evidence on the question as to the measure of damages suffered by plaintiff chargeable to the published libel and repeated by the use of the same words orally, but not otherwise.

Taking the words of the letter with their obvious and not strained meaning they are to the purport and effect that defendant discharged the plaintiff from his employment under a contract with the Chicago Nash Company for the sale of its cars, and that such service under such contract was “to take effect as mutually agreed upon by ourselves about ninety days ago.” The letter concludes with these words: “You may consider this as formal notice to that effect and confirming our conversation and understanding that we had with you yesterday afternoon. ’ ’ The effect of such letter was to terminate the existing contract as agreed the day before its date between plaintiff and defendant. If the contract existing between them was not terminated in that way plaintiff still has his action for its breach providing defendant did breach the contract in attempting to terminate it as he did.

The words of an alleged libel, where susceptible of it, will receive an innocent construction by interpretation. Young v. Richardson, 4 Ill. App. 364; Isabella Harkness v. Chicago Daily News Co., 102 Ill. App. 162.

In later years there has not been much change by judicial construction of the law of slander and libel. An early case, interesting and somewhat instructive by its reasoning and defining of what constitutes either libel or slander, is Rice v. Simmons, 2 Har. (Del.) 417. We cite it simply for its historical value on these phases of the law.

The letter of defendant to plaintiff, of May 28, 1926, on which the libel, the subject of this suit, is alleged to arise is neither of a libelous nor defamatory character and contains no words which can reasonably be construed as libelous. It consequently follows that the general and special demurrer interposed by defendant to plaintiff’s second amended declaration is well founded in law, therefore the judgment of the circuit court, in sustaining said demurrers and entering the judgment found in the record, is affirmed.

Affirmed.

Taylor and Wilson, JJ., concur.