author: Mr. Justice Johnston

text:
    Yellow Cab Company, Appellee, v. Harold A. Howard and John C. Howard, Trustees under the Last Will and Testament of Sarah J. Howard, Deceased, Appellants.
    Gen. No. 31,082.
    1. Eminent domain — where transfer of title effected by judgment and not by primate sale. Where the day before judgment was entered in a condemnation suit the owner of the property conveyed it to the condemnor for a consideration identical with the amount of the verdict, with certain deductions, but judgment therefor was not made until after the judgment was entered, held in view of all the circumstances that the property was transferred by virtue of the condemnation judgment and not by private sale, and the owner was therefore liable to a lessee, who was not a party, as for money received, to the extent of the value of the unexpired term of the leasehold, since the condemnation judgment included the value of the leasehold.
    2. Assumpsit — evidence admissible in lessee’s action against owners for money had and received as result of condemnation proceeding. In an action by the lessee of real property against the owners thereof for money had and received by the latter as a result of a proceeding condemning part of the property for the purpose of widening a city street, held that evidence of defendants’ commencement of an action against plaintiff for rent was admissible as tending to discredit the testimony of one of the defendants that he “sold” the condemned part of the property to the condemnors.

      3. Eminent domain — lessee’s right of action against owners to whom amount of condemnation award was paid for money had and received. The lessee of real property, who was not a party to condemnation proceedings for the purpose of widening a city street, has a right of action against the owners of the property to whom the amount of the condemnation award was paid, for money had and received, to the extent of the value of the leasehold.
    4. Assumpsit — when action of assumpsit for money had and received will lie. The general rule is that the action of assumpsit for money‘had and received will always lie whenever one person has received money which belongs to another and which in equity and justice should be returned, and it is not necessary that there should be any privity of fact between the parties.
    5. Eminent domain-^-when payment of condemnation award to county treasurer is proper. Where the lessee of real property does not intervene in a proceeding to condemn a part of the property for the purpose of widening a city street, it is proper under section 14 of the Eminent Domain Act, Cahill’s St. eh. 47, jf 14, for the condemnors to pay the amount of the award to the county treasurer.
    6. Eminent domain — effect and scope of condemnation award. The jury’s award in a condemnation proceeding stands in place of the property taken and includes all interests in the property.
    7. Eminent domain — effect of lessee’s failure to intervene in condemnation proceeding. The fact that the lessee of real property did not intervene in a proceeding to condemn a part of the property for the purpose of widening a city street did not preclude such lessee from suing the owners of the property to whom the amount of the award was paid for money had and received.
    8. Eminent domain — damages recoverable by lessee when condemnors pay owners of property. In an action by the lessee of real property against the owners thereof for money had and received by the. latter as a result of a proceeding condemning part of the property for the purpose of widening a city street, held that the trial court correctly estimated the plaintiff’s damages.
    9. Eminent domain — damages to leasehold interest where only part of property taken. Where nearly three-quarters of a tract was taken on condemnation and the remainder was not susceptible of occupation under the lease for a purpose substantially similar to the one for which the original property was used under the lease, in determining the value of the leasehold, the rule applicable in cases where the entire leasehold is taken, controls.
    10. Eminent domain — measure of lessee’s compensation when entire property condemned. Where the entire leasehold interest of a lessee is taken under the power of eminent domain, the lessee’s compensation is the value of the leasehold estate, subject to the rent eovenanted to be paid; if the value exceeds the rental, the lessee will be entitled to recover the excess; if it does not exceed the rental, the lessee will be entitled to nothing.
    11. Trial — when, proposition of law offered in action tried before court without jury should be refused. When a proposition of law offered by a party to an action tried before the court without a jury does not state the law that is applicable to the facts, such proposition should be refused.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed February 7, 1927.
    Rehearing denied February 18, 1927.
    Norman K. Anderson and Benjamin Clarke, for appellants.
    D ’Ancona & Pflaum, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action for money had and received, brought by the Yellow Cab Company, the plaintiff, against Harold A. Howard and John C. Howard, trustees under the will of Sarah J. Howard, deceased, the defendants, to recover an alleged award paid to the defendants in a condemnation proceeding instituted by the South Park Commissioners to condemn property of which the defendants were the owners and the plaintiff was the lessee.

The case was tried before the court without a jury. The court found the issues against the defendants and assessed the plaintiff’s damages at the sum of $6,-434.40. From the judgment on the finding the defendants prosecuted the present appeal.

The- property in question fronted on South Park Avenue, a thoroughfare in the city of Chicago running in a northerly and southerly direction. The property was improved by a one-story garage building with a frontage of 112 feet and a depth of 180 feet. The building had a floor space of 20,000 square feet. The plaintiff had a lease from the defendants for the garage building for a term of ten years ending March 31,1925, at an increasing rental, which, in 1923 at the time of the condemnation proceeding, amounted to $6,000 -a year. At the time of the condemnation proceeding, the unexpired portion of the lease was one year and nine months. The plaintiff paid the rent up to July 1,1923. The condemnation proceeding, which was begun on February 3, 1922, was brought for the purpose of widening South Park Avenue, and included in the property sought to be condemned the east 132 feet of the property in question. The defendants were made parties to the proceeding but did not enter their appearance or make any cpntest. The plaintiff "was not made a party other than by the description “all whom it may concern.” A jury found “the just compensation to be paid to the owner or owners of, and parties interested in” the property in question to be $65,448.70, which was the identical amount at which the value of the property had been fixed in the assessment roll filed in the condemnation proceeding. On April 18,1923, judgment was entered on the verdict of the jury. Before the entry of the judgment, but after the condemnation proceeding had been begun, the de-' fendants entered into negotiations with the attorneys for the South Park Commissioners which resulted in an alleged sale of the part of the defendants’ property sought to be condemned, namely, the east 132 feet, to the South Park Commissioners at an agreed price of $65,448.70, less the taxes for 1922, the cost of the examination of the title and the amount of the special assessment "which was assessed against the property in the condemnation proceeding. These deductions totalled $3,162, leaving a balance of $61,286. On April 17, 1923, the defendants delivered a warranty deed to the attorneys for the South Park Commissioners conveying the east 132 feet of the property in question to the South Park Commissioners. On April 21, 1923, the attorneys for the South Park Commissioners delivered to the defendants the check of the South Park Commissioners for the amount of $61,286. The check was dated April 16, 1923, and the warranty deed had been acknowledged on April 17, 1923. The defendant Harold A. Howard testified that the attorneys for the South Park Commissioners had been holding the check and deed for some time previous to their delivery; that he “had been after” the check “every day”; that he had demanded his money repeatedly. The check on its face shows that the $61,286 was paid to the defendants “For Tract No. 16.” There is no other description of the property in question on the check. The warranty deed does not refer to the property in question as “Tract No. 16,” but in the judgment order in the condemnation proceeding the property is referred to as “Tract No. 16.”

Elmer J. Whitty, secretary of the South Park Commission, called as a witness on behalf of the defendants, testified that he was not connected with the South Park Commission on April 16, 1923; that he became connected with the commission in June, 1924; that “inside the check it says ‘As per bill rendered, contract No. 16, account B-58’ ”; that “it refers to the account upon which money was paid”; that “it was paid under the real estate account of the South Park Board”; that he is “not sure of that account”; that “it was in connection with the condemnation proceeding of the widening of South Park Avenue”; that “the amount was arrived at in no other way, than it was the judgment entered by the court in the condemnation proceedings”; that the check was given to pay the judgment ; that he does not know why there is a difference between the amount of the check and the judgment.

On April 15, 1923, the South Park Commissioners served notice on the plaintiff to vacate the premises. By about the first week of July, 1923, the premises were completely vacated. During the first week of July, 1923, the South Park Commissioners took possession of the east 132 feet of the property in question, wrecked the east 132 feet of the building, leaving 48 feet. After May 1, 1923, the plaintiff paid no rent to the defendants, and the defendants never demanded any rent from" the plaintiff. The plaintiff never paid any rent to the defendants for the 48 feet that were left.

The defendants were absent from Chicago from June 1, 1923, to October, 1923. In October, 1923, the defendants had a new front put on what remained of the building and leased the building at a rental of $250' a month to a tenant that used it for a service station for automobiles. At the time of the trial in the present case, the building had been leased by the defendants to a tenant that was using it as a service station for automobiles. The evidence shows that after the plaintiff began the present action against the defendants for money had and received, the defendants commenced an action against the plaintiff to recover rent alleged to be due from the plaintiff to the defendants under the lease, not for the remaining 48 feet, but for the entire property in question. The total amount claimed to be due was $3,000, of which $1,500 was alleged to be due on July 1, 1923, and $1,500 on October 1, 1923.

It is contended by counsel for the defendants that the South Park Commissioners did not acquire the property in question by the condemnation proceeding, but in a sale in which they purchased the property from the defendants; and that therefore the plaintiff has no right of action against the defendants. Counsel for the defendants contend that the South Park Commissioners abandoned the condemnation proceeding in so far as the defendants were concerned, purchased the defendants’ interest only, and left the leasehold interest of the plaintiff still to he acquired. In support of their contentions counsel for the defendants cite the cases of Uhland Club v. Schupbach, 168 Mass. 430, and Follansbee v. Jersey City, 97 N. J. Eq. 489. Counsel for the defendants further contend that the South Park Commissioners could have been enjoined by the plaintiff from taking possession of the property until they paid the plaintiff the value of the plaintiff’s leasehold interest, citing the case of Follansbee v. Jersey City, supra; that when the deed of the defendants was delivered to the South Park Commissioners the property in question became public property, the court lost jurisdiction in the condemnation proceedings and should have dismissed the proceedings as to the defendants.

In assuming the position that they have taken, counsel for the defendants at once are confronted -with the undisputed fact that the amount agreed upon between the South Park Commissioners and the defendants as to the alleged purchase price for the property in question was the identical amount found by the jury in the condemnation proceeding to be “the just compensation to be paid to the owner or owners of and parties interested in” the property in question. The amount of the jury’s award was $65,448.70. Harold A. Howard, one of the defendants, testified that the “sale price” was $65,448.70; and that that was the amount for which the defendants sold the property to the South Park Commissioners, less what the South Park Commissioners deducted. In view of the singular coincidence that the “sale price” was the same amount as the jury’s award, which included compensation for all interests in the property, it would seem to be very difficult for counsel for the defendants to argue with any degree of probability that.the “sale price” was exclusive of the leasehold interest of the plaintiff. The “sale price,” in our opinion, included the value of the plaintiff’s leasehold interest and did not represent solely the interest of the defendants. This conclusion is unavoidable unless we assume that the South Park Commissioners were of the opinion that the award of the jury was erroneous, and that the jury should have allowed as compensation to the defendants $65,448.70 exclusive of the leasehold interest of the plaintiff. Such an assumption is highly improbable, as it is unreasonable to suppose that the South Park Commissioners would ignore the jury’s award and voluntarily render themselves liable to pay more for the property than the jury allowed. It will be observed that the fact that the amount of the “sale price” and the amount of the jury’s award were identical is a very significant fact. There are other facts which tend to show that the transaction between the South Park Commissioners and the defendants was not a voluntary sale, but was a payment of the jury’s award in the condemnation proceeding. The negotiations between the defendants and the attorneys for the South Park Commissioners were not begun until after the commencement of the condemnation proceeding. The part of the property in question alleged to have been sold to the South Park Commissioners by the defendants is the precise part that was proposed to be taken in the condemnation proceeding, namely, the east 132 feet. The check sent to the defendants by the South Park Commissioners referred to the property in question as “Tract No. 16,” which reference does not appear in the description of the property in the deed, but does appear in connection with the property in question in the judgment in the condemnation proceeding. Included in the deductions which the South Park Commissioners made from the .“sale price” was the amount of the special assessment, • which had been levied against the property in question in the condemnation proceeding. After the alleged sale the defendants, made no demand on the plaintiff for rent for the remaining 48 feet, apparently assuming that the condemnation proceeding terminated the leasehold interest of the plaintiff. In January, 1924, however, about nine months after the alleged sale' of the property in question, the defendants began an action in the municipal court of Chicago against the plaintiff to recover the full quarterly rent under the lease between them and the plaintiff alleged to be due on July 1,1923, and October 1,1923. In other words, the action was brought for the full quarterly rent claimed to have accrued after the alleged sale of the property in question by the defendants to the South Park Commissioners. Counsel for the defendants in their reply brief state that the evidence showing the action in the municipal court was inadmissible in the case at bar, and that the evidence was objected to on the trial. No contention whatever, in fact no reference whatever, is made in the original brief of counsel for the defendants in regard to the inadmissibility of the evidence. Furthermore, we think that the evidence was admissible as tending to discredit the testimony of the defendant, Harold A. Howard, in which he stated that he “sold the property” in question to the South Park Commissioners. Another fact tending to show that the transaction between the defendants and the South Park Commissioners, in regard to the property in question, was not a sale is that the check of the South Park Commissioners was not sent to the defendants until April 21, 1923 — three days after the judgment in the condemnation proceeding was. entered. It is true that the deed of the defendants was sent to the South Park Commissioners on April 17th, the day before the judgment in the condemnation proceeding was entered. But the fact that the South Park Commissioners withheld payment of the money to the defendants until after the entry of the judgment in the condemnation proceeding is a circumstance tending to connect the payment of the money with the condemnation judgment. Furthermore, although the defendants demanded the money repeatedly from the attorneys for the South Park Commissioners, according to the testimony of the defendant Harold A. Howard, nevertheless the money was not paid until after the entry of the judgment in the condemnation proceeding.

We are of the opinion that the transaction between the defendants and the South Park Commissioners should not be treated as a sale, but as a payment of the award in the condemnation proceeding. In opposition to this conclusion counsel for the defendants contend that it is unreasonable to suppose that the South Park Commissioners intended the payment as a payment of the jury’s award which included the interests 'of all parties in the property in question, since such a payment would have included the amount of the plaintiff’s leasehold interest in the property in question; and that further, since the South Park Commissioners are required by section 14 of the Eminent Domain Act [Cahill’s St. ch. 47,[[14] to pay the amount of awards in condemnation proceedings to the county treasurer, if the transaction between the defendants and the South Park Commissioners should be treated as a payment of the jury’s award in the condemnation proceeding, then the South Park Commissioners would be liable to pay again the amount of the plaintiff’s leasehold interest in an action that might be brought by the plaintiff against the South Park - Commissioners. In support of their contentions counsel for the defendants cite the cases of Follansbee v. Jersey City, supra; Bartlow v. Chicago, B. & Q. R. Co., 243 Ill. 332; South Park Com’rs v. Todd, 112 Ill. 379. Assuming for the sake of argument that counsel for the defendants have correctly stated the law, there is force in their argument. Yet, we think that the preponderance of the evidence shows that the South Park Commissioners did intend the payment as a payment of the jury’s award in the condemnation proceeding. Furthermore, if they did not so intend but considered the payment as a payment in a sale, then, according to the contention of counsel for the defendants, they would have been liable to the plaintiff for the plaintiff’s leasehold interest and could have been enjoined by the plaintiff from taking possession of the property in question until they paid for the plaintiff’s leasehold interest. We are not inclined to impute to the South Park Commissioners an intent which would produce such a situation. In our opinion the South Park Commissioners in dealing with the defendants overlooked the fact that the plaintiff had a leasehold interest in the property in question, and made a payment of the award to the defendants without deducting the value of the plaintiff’s leasehold interest from the award.

As tending to support their contention that the transaction between the defendants and the South Park Commissioners was a sale and not a payment of the jury’s award in the condemnation proceeding, counsel for the defendants maintain that the following facts are of controlling importance: That the South Park Commissioners deducted from the amount paid to the defendants the taxes for the year 1922 and the charge of the Chicago Title & Trust Company for the legal opinion it furnished as to the validity of the title of the property in question; that the notice which the South Park Commissioners served on the plaintiff to vacate the property in question was served before the judgment in the condemnation proceeding was entered ; that the deed from the defendants to the South Park Commissioners was delivered to the South Park Commissioners before the judgment in the condemnation proceeding was entered.

We admit that these facts relied on by counsel for the defendants weaken the strength of our conclusion that the transaction should be treated as a payment of the jury’s award in the condemnation proceeding; but we think that when all of the evidence is considered these facts do not render such a conclusion unwarrantable. We clearly are of opinion that when all the evidence is considered, for the purpose of ascertaining the intent of the defendants and the South Park Commissioners in regard to the nature of the transaction, it is apparent that neither the defendants nor the South Park Commissioners intended that the transaction should constitute an actual sale of the property in question, wholly independent of the jury’s aw.ard in the condemnation proceeding, but that they intended that the transaction should be, in legal effect, a payment of the jury’s award.

Counsel for the defendants further contend that if it should be conceded that the transaction between the defendants and the South Park Commissioners was a payment of the jury’s award in the condemnation proceeding, such payment would include the plaintiff’s leasehold interest in the property in question, and that the plaintiff’s right of action would be only against the South Park Commissioners and not against the defendants. In support of their contention counsel for the defendants cite the cases of Follansbee v. Jersey City, supra; Bartlow v. Chicago, B. & Q. R. Co., supra, and South Park Com’rs v. Todd, supra.

We do not think that it is necessary for us to decide the question whether the plaintiff has a right of action against the South Park Commissioners. It is sufficient to say that in our. view, even though the plaintiff may have a right of action against the South Park Commissioners, as counsel for the defendants contend, the plaintiff also has a right of action against the defendants. The general rule, which is a familiar one, is that the action of assumpsit for money had and received will always .lie whenever one person has received money which belongs to another and which in equity and justice should be returned. Leigh v. American Brake-Beam Co., 205 Ill. 147, 153; Wilson v. Turner, 164 Ill. 398, 403. It is not necessary in order to maintain the action that there should be any privity in fact between the parties. Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164,177. It is also the specific rule that in a condemnation proceeding “if damages are assessed and paid to one as owner who is not the true owner, he will he liable to the true owner in an action for money had and received, or otherwise made to account to the true owner.” Lewis on Eminent Domain, § 894, pp. 1555, 1556 (3rd Ed.).

It is true, as counsel for the defendants maintain, that, on the theory that the payment to the defendants by the South Park Commissioners was a payment of the jury’s award in the condemnation proceeding, since the plaintiff did not intervene in the condemnation proceeding, it would have been proper under section 14 of the Eminent Domain Act [Cahill’s St. ch. 47, 1i 14] for the South Park Commissioners to have paid the amount of the award to the county treasurer. In the case of City of Chicago v. Gage, 268 Ill. 232, the court said (pp. 237, 238, 239):

• “The statute provides that payment of the compensation adjudged may in all cases be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, and the compensation can be ascertained and the money paid to the county treasurer in any case without in the slightest manner interfering with or disturbing the jurisdiction acquired by any court to decide questions between conflicting claimants. * * *

“If there are disputes between the different defendants to a condemnation proceeding it is a proper practice to require them to litigate and settle their interests in the property before the court prior to the empaneling of the jury, to the end that the amount to be paid to each owner or person interested in the property may be separately determined by the jury. * * * But it is not essential that that should be done. If the conflicting claims are not presented before the jury trial the parties should be required to present their claims to the fund in the hands of the county treasurer.”

The jury’s award in a condemnation proceeding stands in place of the property taken and includes all interests in the property. Aldrich v. R. J. Ederer Co., 302 Ill. 391, 395; City of Chicago v. Gage, supra, p. 239.

In our opinion, the fact that the plaintiff did not intervene in the condemnation proceeding did not preclude the plaintiff from maintaining the present action against the defendants for money had and received. This precise question has not been decided by the Supreme Court of Illinois, but the following well-considered cases support our conclusion: State ex rel. Long v. Superior Court for Lewis County, 80 Wash. 417, 423; Harris v. Howes, 75 Me. 436; McAllister v. Reel, 53 Mo. App. 81, 84.

In the case of State ex rel. Long v. Superior Court for Lewis County, supra, which was an action in regard to an award in a condemnation proceeding, it appeared that the owner of a leasehold was not made a party in condemnation proceedings where an award was made for the full value of the land in which he had the leasehold. The court said (p. 423):

"Our statute provides that the proceeding shall run against the record owners * * *. When, therefore, a lessee has not made his interest to appear of record, and the court has made an assessment in gross, the claim of the lessee is not against the petitioner, but against the fund. He may appear in the original proceeding; he may ask an apportionment of the award under sections 929-931; he may proceed in equity independent of the statute * * *, or by way of an action for money had and received.”

In the case of Harris v. Howes, supra, which was an action for money had and received involving a controversy in respect of an award in a condemnation proceeding, the court said (pp. 438, 439):

“By the fault or mistake of both of the present parties, one award only was made. The plaintiff mistook in not claiming, and the defendants in not disclaiming, the right to recover the lessee’s damages. We do not see why a bill in equity would not lie to rectify the mistake, nor why the present action cannot be sustained for such purpose. Certainly, the defendants have money in their hands which equitably and fairly belongs to the plaintiff. There can really be no more difficulty for this court to determine the relative sums belonging to the parties, than for county commissioners to work out the result. The duty of the commissioners would have been first to ascertain the entire damages and then apportion them. Nor is it. unusual in such proceedings in many of the states, for an award to be made in gross, and the division to be made after-wards according to ownerships.”

In the case of McAllister v. Reel, supra, which was an action for money had and received, the evidence showed that both the owner of property and the owner of a leasehold interest in the property appeared in condemnation proceedings brought to condemn the property, but that the owner of the leasehold did not file exceptions to the report of the commissioners in the condemnation proceeding, and the commissioners did not apportion the damages. The court said (p. 85):

“The defendant admits that the plaintiff was his lessee; that the lease had several years to run; and that the larger portion of the house was condemned and removed. He also admits that he received the entire award. The report of the commissioners conclusively shows that the entire damages to the property were assessed. Certainly, under this evidence, the defendant has money in his hands which equitably and fairly belongs to the plaintiff, and which the defendant must pay. The facts relied on by him to estop the plaintiff from making his claim are insufficient. The plaintiff and the defendant are equally to blame for the failure of the commissioners to apportion the award. The former ought to have insisted on it being done, and defendant ought to have disclaimed the right to recover the plaintiff’s portion. But the failure of the plaintiff to object to the award, or to notify the defendant of his legal right to a portion of the money, did not make out a case of estoppel against him.”

The cases of Follansbee v. Jersey City, supra; Bartlow v. Chicago, B & Q. R. Co., supra; South Park Com’rs v. Todd, supra, cited by counsel for the defendants, may support their contention' that the plaintiff has a right of action against the South Park Commissioners, but the cases do not hold that such an action would be exclusive of an action against the defendants.

The case of Follansbee v. Jersey City, supra, is also cited by counsel for defendants in support of their contention that the transaction between the defendants and the South Park Commissioners was a sale. We do not think that the case is in point for the reason that the court interpreted the evidence as showing that the municipality abandoned the condemnation proceedings and purchased the land from the owner. In the case at bar, as we view the evidence, the South Park Commissioners did not abandon the condemnation proceeding as to the defendants and thereafter purchase the property in question from the defendants. The South Park Commissioners paid the defendants for the property in question while the condemnation proceeding was still pending as to the defendants.

Counsel for the defendants further contend that the trial court incorrectly assessed the plaintiff’s damages. The method by which the trial court estimated the plaintiff’s damages, as stated by the court, was as follows:

“Measure of damages if we consider that the situation in this case is the same as though the whole property were condemned and taken: This is the proper theory in this case because after 132 feet were taken Yellow Cab Company surrendered possession of the entire property and the Lessor made no objection-to such surrender, made no demand for rent thereafter, put up a wall on the remaining part and leased it out in his own name and right, and at no time sought to hold the tenant, Yellow Cab Company, for any rent or for any difference in rent, and gave no indication that he was renting out such remaining portion on behalf of the Yellow Cab Company. Under this situation the measure of damages in this case is determined by the rule as laid down in the.case of Corrigan v. City of Chicago, 144 Ill. 537, on page 548:‘The measure of compensation for the estate of the tenant taken is the value of her leasehold estate, subject to the rent covenanted to be paid.’ Computation of Damages. The dimensions of the premises are 180 feet by 112 feet or 20,160 square feet, at 48 cents per square foot is $9,676.80 per year. The lease had one year, nine months to run or 1% years; $9,676.80 for 1% years is $16,934.40. Eent reserved in lease for 1% Years at $6,000 per year is $10,-500. Deducting $10,500 from $16,934.40 is $6,434.40 or the value of the leasehold. Yellow Cab Company is entitled to recover judgment for the sum of $6,-434.40.”

In our opinion the court correctly estimated the plaintiff’s damages. After the South Park Commissioners took possession of the east 132 feet of the ■property in question the part of the property remaining was 112 feet frontage with a depth of 48 feet.

Counsel for the defendants maintain that the part remaining was susceptible of occupation under the lease; that therefore the plaintiff’s entire leasehold interest in the property'in question was not taken, and that according to the well-settled rule prescribed in the cases of Yellow Cab Co. v. Stafford-Smith Co., 320 Ill. 294, 296; Stubbings v. Village of Evanston, 136 Ill. 37, 43, and other cases, the plaintiff was not entitled to damages for its entire leasehold interest in the propertyin question, but only for the part of the leasehold that was.taken; that even if it should be conceded that the trial court adopted the correct rule as the measure of damages, the evidence does not show that the rental value of the property was 48 cents per square foot; and that the expert witnesses who testified on behalf of the plaintiff incorrectly estimated the value of the plaintiff’s leasehold interest on the basis of a gross rental value.

The part remaining was about 5,200 square feet, while the original property consisted of 20,000 square feet. As one of the witnesses testified, the remaining part was “all frontage.” It is true that the evidence shows that at the time of the trial of the case at'bar, the remaining part was used for an automobile service station, but that is not substantially the purpose for which it was originally used. The evidence also showed that the remaining part could be used for a repair shop and for a battery business. Such uses, however, are not all of the material uses to which the original property could be put under the original lease.

In our opinion, according to the preponderance of the evidence, the property remaining was not susceptible of occupation under the lease for a purpose substantially similar to the one for which the' original property was used under the lease. In this view the proper rule by which to measure the plaintiff’s damages was the one which is announced in the case of Corrigan v. City of Chicago, 144 Ill. 537, supra, and which is the one the trial court adopted in the case at bar. The rule in the case of Corrigan v. City of Chicago, supra (pp. 548, 549), is that where the entire leasehold interest of the lessee is taken under the power of eminent domain, the lessee’s compensation is the value of the leasehold estate, subject to the rent covenanted to be paid; that if the value exceeds the rental, the lessee will be entitled to recover the excess; that if it does not exceed the rental the lessee will be entitled to nothing.

The objection of counsel for the defendants that the expert witnesses for the plaintiff estimated the value of the plaintiff’s leasehold interest incorrectly at a gross rental value, in our opinion is without merit. As we view the testimony of the plaintiff’s expert witnesses, we think that when fairly interpreted the testimony shows that they estimated the plaintiff’s leasehold interest correctly.

Counsel for the defendants further contend that the trial court erred in refusing the following proposition of law offered by the defendants:

‘1 The court finds as a proposition of law, that where a lessee fails to press its case in a condemnation proceeding, and the governmental body bringing the condemnation settles with the owner by taking a deed from him, that the said lessee has no cause of action against the owner of the property and no right to any portion of the money paid to the owner under such circumstances.”

We think that the ruling of the trial court was correct, as in our opinion the proposition of law does not state the law that is applicable to the facts. In such case a proposition of law should be refused. Gray v. Callender 181 Ill. 173, 175; Saffer v. Lambert, 111 Ill. App. 410, 413.

For the reasons stated the judgment is affirmed.

Affirmed.

McSurely, P. J., and Hatchett, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Richard Stoike, Plaintiff in Error, v. George Bonasera, Defendant in Error.
    Gen. No. 31,138.
    1. Execution — meaning of “gist of the action” as túed in Insolvent jDehtor’s Act. The phrase “gist of the action,’’ as used in section 2 of the Insolvent Debtor’s Act, Cahill’s St. eh. 72, If 5, means the essential ground or object of the action without which the action could not be maintained.
    2. Execution — meaning of “malice” as used in Insolvent Vect- or’s Act. The term “malice,” as used in section 2 of the Insolvent Debtor’s Act, applies to that class of wrongs which are inflicted with an evil intent, design, or purpose; it implies that the guilty party was actuated by improper or dishonest motives and intended to perpetrate an injury or a wrong on another.
    3. Execution — when declaration does not charge “malice” within meaning of Insolvent Vector’s Act. Count in declaration in action for personal injury sustained in automobile accident which alleged “gross disregard” for plaintiff’s safety did not charge “malice,” within the meaning of section 2 of the Insolvent Debtor’s Act, Ca-hill’s St. eh. 72, If 5, but negligence only.
    4. Execution — when judgment not conclusive of question that malice was “gist of the action” within meaning of Insolvent Vector’s Act. Where only one of the two counts of the declaration upon which the case was submitted to the jury charged malice, the judgment for the plaintiff is not conclusive of the question that malice was the “gist of the action,” within the meaning of section 2 of the Insolvént Debtor’s Act, Cahill’s St. eh. 72, j[5, and the defendant, upon whom rests the burden of proof when he seeks his discharge from custody under such statute, is not estopped by the judgment from showing that malice was not the “gist of the action,” and he may show that the verdict and judgment were based upon the count in which malice was not charged.
    5. Execution — when malice eliminated from consideration of jury. Although one count charged that an injury was wilfully and wantonly inflicted, where on the trial of the action for such injury the court charged the jury that it was not necessary to prove that the defendant was actuated by “an intention to injure” plaintiff, the question of malice was thereby eliminated from the consideration of the jury.
    Error by plaintiff to the county Court of Cook county; the Hon. J. L. Weaver, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed February 7, 1927.
    Hugh E. Porter and Alonzo H. Eanes, for plaintiff in error.
    Eitchie, Colby, Meyer & Brisgall, for defendant in error; Jacob Brisgall, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is a writ of error prosecuted by Bichard Stoike, the respondent, from an order in a proceeding in the county court of Cook county under the Insolvent Debt- or’s Act, discharging George Bonasera, the petitioner. The respondent obtained a judgment in the circuit court of Cook county against the petitioner in the sum of $5,000 in an action for damages in which the respondent alleged that while he was crossing Clybourn Avenue, a public thoroughfare in Chicago, he was struck and injured by an automobile driven by the petitioner. The petitioner failed to pay the judgment and was arrested under a writ of capias ad satisfaciendum, which was issued at the instance of the respondent. Thereupon the petitioner filed a petition in the county court asking to be discharged under section 2 of the' Insolvent Debtor’s Act [Cahill’s St. ch. 72, [[ 5] on the ground that, malice was not the gist of the action in which the judgment for damages was obtained in the circuit court.

On the hearing of the petition in the county court the petitioner introduced in evidence the praecipe, summons, appearance, declaration, pleas, instructions, verdict and judgment in the action in the circuit court. The respondent offered no evidence. The county court found that malice was not the gist of the action in the circuit court and discharged the petitioner.

The only question to be decided on this writ of error is whether malice was the gist of the action in the circuit court in the sense that the word malice is used in section 2 of the Insolvent Debtor’s Act.

Section 2 of the Insolvent Debtor’s Act [Cahill’s St. ch. 72, [i 5] provides as follows:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by Ms bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this Act.”

The phrase “gist of the action” means the essential ground or object of the action without which the action could not be maintained. If the action can be maintained without alleging or proving malice, then malice is not the gist of the action. Greener v. Brown, 323 Ill. 221, 225; Jernberg v. Mix, 199 Ill. 254, 256; First Nat. Bank of Flora v. Burkett, 101 Ill. 391, 394, 395.

On the trial of the action in the circuit court the case went to the jury only on the third and fourth counts of the declaration.

It is the contention of counsel for the respondent that the third and fourth counts charge malice. If this contention is correct, and if the evidence in the case at bar shows that in the action in the circuit court the issue of malice was actually submitted to the jury on those counts, then malice was the gist of the action in the circuit court, and the county court should not have discharged the petitioner under section 2 of the Insolvent Debtor’s Act. We shall consider the third and fourth counts separately.

The pertinent part of the third count is as follows: “That while the plaintiff was then and there wallring across the said Clybourn Avenue as aforesaid the defendant then and there, with gross disregard for the safety of the life and limb of the plaintiff, moved and operated the said motor vehicle at a high rate of speed, to-wit, twenty-five miles per hour, toward and to and against the plaintiff, and by reason thereof the said motor vehicle then and there ran and struck with great force and violence against the plaintiff. ’ ’

The term “malice,” as used in section 2 of the Insolvent Debtor’s Act, applies to that class of wrongs, which are inflicted with an evil intent, design or purpose. It implies that the guilty party was actuated by improper or dishonest motives, and intended to perpetrate an injury or a wrong on another. Seney v. Knight, 292 Ill. 206, 208; Jernberg v. Mix, supra, p. 256; In re Murphy, 109 Ill. 31, 33; First Nat. Bank of Flora v. Burkett, supra, pp. 391, 394.

The precise question, therefore, to be decided is whether the allegations in the third count show that the petitioner intentionally injured the respondent. Intention in a legal sense may be actual or presumptive. Chicago City R. Co. v. Jordan, 215 Ill. 390, 391. If the allegations of the third count are sufficient to charge the petitioner with having inflicted.an intentional injury on the respondent, the third count charges the petitioner 'with malice, and in legal effect alleges that the petitioner was guilty of an assault to commit bodily Ibarm. If, however, the allegations merely charge the petitioner with having inflicted the injury on the respondent unintentionally, the third count does not charge the petitioner with malice, but alleges that the petitioner was guilty of negligence. Brodsky v. Rieser, 195 App. Div. 557, 186 N. Y. S. 841, 842. In other words, the third count either charges a tort of greater culpability than negligence, namely, a tort amounting to an assault to commit bodily harm, or else it charges a tort amounting only to negligence. In the case of Aiken v. Holyoke St. R. Co., 184 Mass. 269, 271, the court said that one who wilfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission, exposes another to death or to grave bodily injury is guilty of a wilful intentional wrong amounting to a criminal or g«asi-criminal wrong.

In mere negligence there is no intention to do a wrongful act or to omit the performance of a duty. Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 533; Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512. As briefly defined in the case of Stratton v. The Central City Horse Ry. Co., 95 Ill. 25, 33, 34, “Negligence is a failure to exercise the care required by law.” In the case of Chicago, B. & Q. R. Co. v. Johnson, supra, p. 521, the court said the generally approved definition of negligence is that it “is the omission to do something which a reasonable man, guided upon those ordinary considerations which ordinarily regulate the conduct of , human affairs, would do, or doing something which a prudent and reasonable man would not do.’’ The court further said (p. 522): “When there is a particular intention to injure, or a degree of willful and wanton recklessness which authorizes the presumption of an intention to injure generally, the act ceases to be merely negligent, and becomes one of violence or fraud.” To the same effect is the case of Chicago City R. Co. v. Jordan, 215 Ill. 390, 397. In the case of Kelly v. Malott, 135 Fed. 74, the court said (p. 76): “Negligence and wfilfulness are as unmixable as oil and water. ‘Willful negligence’ is as self-contradictory as ‘guilty innocence.’ ” Salmond says, “No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.” Salmond on Jurisprudence, p. 409 (7th Ed.).

In the case of Lockwood v. Bella City St. Ry. Co., 92 Wis. 97, the court said (p. 113): “Some law writers, some judges, and some courts habitually use the terms ‘intentional negligence,’ ‘wilful negligence,’ ‘malicious negligence’; but most of them very properly repudiate such expressions as contradictory and absurd."

If the use of the word ‘ ‘ gross ’ ’ in the third count is designed to import gross negligence, nevertheless the count properly cannot be construed as charging an intentional or malicious tort of greater culpability than negligence; for even where different degrees of negligence are recognized, such as gross negligence, ordinary negligence, and slight negligence, gross negligence is but the omission of a duty. Chicago, R. I. & P. Ry. Co. v. Hamler, supra, p. 533; Jacksonville S. E. Ry. Co. v. Southworth, 135 Ill. 250, 255. Cooley says: "Some writers classify negligence as gross negligence, ordinary negligence and slight negligence; but this classification only indicates this: that under the special circumstances great care and caution were required, or only ordinary care, or only slight care. If the care demanded was not exercised, the case is one of negligence, and a legal liability is made out when the failure is shown.” 2 Cooley on Torts, p. 1325 (3rd Ed.). To the same effect are the following cases: Chicago, R. I. & P. Ry. Co. v. Hamler, supra, p. 534; Stringer v. Alabama Mineral R. Co., 99 Ala. 397, 410; McAdoo v. Richmond & D. R. Co., 105 N. C. 140, 150; Kelly v. Malott, supra, p. 550.

It follows from the views we have expressed that if the third count should be considered as a count charging a tort amounting to negligence only, and not a tort of greater culpability than a negligent tort, then the count does not allege that the petitioner was guilty of an intentional or malicious wrong. This is true even though the count should be construed as alleging gross or wilful negligence.

Does the third count charge a tort of greater culpability than negligence; in orther wurds, does it charge a tort that is not in the category of negligence? If the third count charges such a tort, then in order that malice may be the gist of the action under section 2 of the Insolvent Debtor’s Act, the count should contain allegations which imply that the tort was either actually or constructively intentional. In the case of Walldren Express & Van Co. v. Krug, 291 Ill. 472, in defining conduct which amounts to malicious or intentional conduct, the court said (p. 477): “An intentional disregard of a known duty necessary to the safety of the person or property of another and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, make a case of constructive or legal willfulness such as charges the person whose duty it was to exercise care with the consequences of a willful injury.” The only language in the third count from which reasonably it could be argued that malice or intent is alleged, would be the phrase “gross disregard.” We do not think that this phrase is equivalent to the phrase “intentional disregard,” which is used in the case of Walldren Express & Van Co. v. Krug, supra. In the case of Jacksonville S. E. Ry. Co. v. Southworth, supra, in considering the word “gross” in connection with negligence, the court expressly said (p. 255) that the word “gross” did not import a “designed and intentional mischief.’’

It is contended by counsel for the respondent that the phrase “gross disregard” is equivalent to the phrase “without any regard,” and that the latter phrase, as used in the case of Van Meter v. Gurney, 240 Ill. App. 165, 188, was held to be controlling on the question whether wilful, wanton conduct had been charged in the declaration in that case. We think that there is a material difference between the two phrases. The phrase “without any regard” is synonymous with the phrase “utter disregard,” and in the case of People v. Anderson, 310 Ill. 389, 391, the court held that where “the proof is sufficient to establish beyond reasonable doubt that under the circumstances of the,injury the conduct of the driver of an automobile was so reckless, wanton and willful as to show an utter disregard for the safety of pedestrians, a conviction for assault to commit a bodily injury would be warranted.’’

We are of the opinion that the third count does not charge malice within the meaning of section 2 of the Insolvent Debtor’s Act. In our view it alleges negligence only.

The remaining question to be determined is whether the fourth count charges malice in the sense of section 2 of the Insolvent Debtor’s Act. The pertinent part of the fourth count is as follows: 1 ‘ That while plaintiff was then and there walking across the said Clybourn Avenue as aforesaid the defendant then and there wilfully and wantonly and with gross disregard for the safety of the life and limb of the plaintiff, moved and operated the said motor vehicle at a high rate of speed, to-wit: twenty-five miles per hour, toward and to and against the plaintiff, and by reason thereof the said motor vehicle then and there ran and struck with great force and violence against the plaintiff.”

The fourth count differs from the third count in that the fourth contains the additional words “willfully and wantonly. ’ ’

It may be assumed for the sake of argument, but it is not conceded, that the fourth count charges malice within the meaning of section 2 of the Insolvent Debt- or’s Act. The state of the record then is that one of the two counts upon which the case was submitted to the jury charged malice, and the other did not. In such a situation the judgment is not conclusive of the question that malice was the gist of the action, and the petitioner, upon whom rests the burden of proof, is not estopped by the judgment from showing that malice was not the gist of the action. He may show that the verdict and judgment were based upon a count in which malice was not the gist of the action. Jernberg v. Mix, supra, p. 257.

In the case at bar the petitioner introduced in evidence the following instruction, which was given at the request of the respondent in the action in the circuit court:

"The jury are instructed that in order to show that conduct is in wanton and wilful disregard of the rights of the plaintiff as alleged in the third and fourth counts of the declaration, it is not necessary to prove that the defendant was, at the time and just before the accident actuated by ill will directed specifically towards [sic], or an intention to injure the plaintiff.”

Since the term “malice” as used in section 2 of the Insolvent Debtor’s Act implies an intention, either actual or constructive, to perpetrate an injury, and since the instruction in question told the jury that it was not necessary to prove that the petitioner was actuated by “an intention to injure” the respondent, the effect of the instruction was to eliminate from the fourth count the question of malice, and to leave for the consideration of the jury only the question of negligence which was alleged in the third count.

The respondent offered no evidence on the question whether malice was the gist of the action.

In this state of the record we are of the opinion that the petitioner has shown by a preponderance of the evidence that malice was not the gist of the action in the circuit court.

For the reasons stated the order of the county court is affirmed.

Affirmed.

McSurely, P. J., and Hatchett, J., concur.


text:
    Village of LaGrange Park, Appellant, v. Edmund K. Jarecki, County Judge of Cook County, Appellee.
    Gen. No. 31,165.
    1. Actions — “cause, of action,” distinguished from “remedy.” A "cause of action," as distinguished from the "remedy," is the right to bring an action, which implies that there is some person in existence who can assert and also a person who can lawfully be sued.
    2. Municipal corporations — proceeding for incorporating milage as statutory. A proceeding for incorporating unorganized territory into a village is purely statutory.

      3. Municipal corporations — right to restrain county judge in connection with milage organization. A bill in equity will not lie to restrain a county judge from performing his ministerial duty under the statutes in connection with the organization of a village, on the ground of the illegality of the proceedings.
    4. Municipal corporations — right to file “remonstrance” m connection with organization of village. There are no provisions in the Illinois Statutes authorizing the filing of a “remonstrance” with the county .judge calling attention to the illegality of the proceedings for the organization of a village; the filing of such an instrument imposes no obligation upon the county judge, and his failure or refusal to recognize it cannot form the basis of a suit in equity to enjoin him from taking further proceedings in connection with the organization of the village.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon Francis S. Wilson, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed February 7, 1927.
    Weightstill Woods, for appellant; Wilkie Olay Ham, of counsel.
    Joseph B. Fleming, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by the Village of LaGrange Park, the complainant, from a decree of the circuit court of Cook county in favor of Edmund K. Jareeki, county judge of Cook county, the defendant. The complainant originally appealed directly to the Supreme Court from the circuit court. On that appeal the Supreme Court held (Village of LaGrange Park v. Jarecki, 321 Ill. 177, 179) that it did not have jurisdiction, as the ground of the appeal was that only the construction of a municipal ordinance was involved and not the validity of the ordinance.

The statement of the case in the opinion of the Supreme Court is as follows;

“The village of LaGrange Park was organized more than thirty years ago and now has approximately 3,000 inhabitants. It is located in Cook county, about fifteen miles west from Lake Michigan. It is primarily a residential community. The territory within the village has been zoned into business and residential sections. In February, 1924, an ordinance was passed by the village board pursuant to the recommendation of the plan commission, under authority of the act of June 24, 1921, (Laws of 1921, p. 260) which regulates the use of contiguous territory outside and distant not more than one and one-half miles from the limits of the village and prescribes the manner in which such lands shall be platted into streets, lots and blocks when it is so platted. In September and October, 1925, steps were taken by persons residing in territory which overlaps a part of the territory outside the village of La-Grange Park which it has undertaken to regulate under its village plan ordinance, to incorporate the village of Westchester. The successive steps to organize the village were taken and the county judge of Cook county entered an order declaring the village of Westchester duly incorporated. Appellant filed its bill in the circuit court of Cook county setting forth in great detail these facts, and alleging, among other things, that the village of Westchester is merely a ‘dummy’ village organized by a railroad and real estate syndicate of Philadelphia, Pennsylvania; that the territory incorporated as the village of Westchester has never at any time had 200 residents; that the only persons within the territory are those temporarily employed in railroad construction, who are living in old farm houses, barns, temporary bunk-houses and temporary mess-halls ; that the petition which was signed by these transients was not presented to the county judge of Cook county but to the county judge of Bond county, who was temporarily holding court in Cook county. The prayer of the bill is that the proceedings to incorporate the village of Westchester be decreed to be void and that appellee be restrained from doing or performing any act in furtherance of the incorporation of said village of Westchester. Appellee appeared and filed his motion to dismiss the bill on the ground that the court is without jurisdiction to grant the relief prayed and that the question of the legality of the organization of the village of Westchester can be tested only in a quo warranto proceeding. This motion was sustained, the bill dismissed for want of equity, and an appeal allowed to this court on the ground that the construction of a municipal ordinance is involved.’ ”

On the same day that the petition to incorporate the village of Westchester was filed, namely, September 16, 1925, the county judge of Bond county signed an order providing for an election to be held on October 3, 1925, at which the question of the incorporation of the village of Westchester should be submitted to the legal voters' of the proposed village. On October 1, 1925, what is termed by counsel for the complainant a remonstrance against the petition to incorporate the village of Westchester was filed in the county court and was presented to the defendant on that date. The remonstrance alleged that “the indispensible requirements of law and fact do not exist and said supposed petition, order for election, election and returns are utterly void”; and in support of these conclusions the remonstrance stated in detail specific reasons, these reasons being substantially the same as those that were set forth in the bill of complaint. On October 2 and 29, 1925, the questions raised by the remonstrance were argued at length before the defendant by the solicitor for the complaint and the solicitor for the petitioners who were seeking to incorporate the village of Westchester. On October 29,1925, the following notice was served on the defendant by the attorney for the complainant :

In the Circuit Court of Cook County.
“To Edmund K. Jarecki, County Judge, and to any Justices he may call to his assistance with reference to proclaiming an election or taking further proceedings in connection with petition for Village of Westchester on file in the office of the Clerk of the County Court of Cook County, No. 54736:
“Please take notice, that I am preparing and will file at the earliest possible moment a bill in equity to enjoin any further acts with reference to the proposed incorporation of such village, and will present you a copy of said bill of complaint at the time the same is filed.”

The defendant accepted service of the notice on the date of the service of the notice.

Subsequent to the filing of the remonstrance and the notice, the defendant proceeded to take the necessary steps to incorporate the village of Westchester, and finally entered an order declaring the village of Westchester duly, incorporated.

Questions in regard to the planning ordinance of the complainant passed pursuant to the act in relation to plan commissions in cities, villages and incorporated towns, chapter 24, paragraph 628 to paragraph 630 [Cahill’s St. ch. 24, fifí 628, 630], in force July 1, 1921; questions relating to the validity of the petition for the incorporation of the village of Westchester; questions relating to the remedy that the complainants should pursue, whether quo warranto to test the validity of the incorporation of the village of Westchester, or whether injunction, as in the case at bar; and also numerous collateral questions are all argued at length by counsel for the complainant. In the view we take of the case, however, it will not be necessary to consider any of those questions. In our opinion the decisive question to be determined is the question whether the complainant has stated a cause of action against the defendant. What act of omission or commission has the defendant been guilty of which subjects him personally to a suit in equity or to an action at law by the complainant? As stated in Walters v. City of Ottawa, 240 Ill. 259, 263, a cause of action, as distinguished from the remedy, has been defined to be “the right to bring an action, which implies that there is some person in existence who can assert and also a person who can lawfully be sued. ’ ’ A fuller description of a cause of action is given by Pomeroy as follows:

“Every remedial right arises out of an antecedent primary right and corresponding duty and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. ’ ’ Pomeroy’s Code Remedies: Remedies and Remedial Rights, section 347, pp. 460, 461 (4th Ed.).

In our opinion the defendant has done no wrong which consisted of the violation of a right possessed by the complainant, and a breach of a corresponding duty devolving on the defendant. In performing the acts alleged in the bill of complaint, the defendant merely was proceeding in a ministerial capacity under paragraph 257 of article XI of chapter 24 of the Illinois Statutes relating to cities, villages and towns. Paragraph 257 [Cahill’s St. ch. 24, U 257] provides that the petition for incorporating unorganized territory into a village shall be addressed to the county judge of the county in which the residents of the proposed village reside. The proceeding is purely statutory. There are no provisions in the statute which would authorize the present suit in which the complainant seeks to hold the defendant personally liable. If the petition that was filed for the incorporation of the village of Westchester was void, and if the defendant erroneously decided that the petition was valid, such an erroneous decision obviously would not constitute a ground for a right of action by the complainant against the defendant. If the orders entered by the defendant in the proceeding to incorporate the village of Westchester are void, and the complainant is desirous of contesting the question of the validity of the orders, that may be done in an appropriate proceeding. The present suit in equity, however, properly cannot be made to serve such a purpose.

Counsel for the complainant apparently contend that the defendant violated a legal right of the complainant and was guilty of a breach of a corresponding duty when the defendant refused to recognize the remonstrance of the complainant. The argument of counsel for the complainant in this respect is as follows: “That on October 2, 1925, when the county judge of Cook County was informed by the remonstrance mentioned in the record * * * that the supposed petition * * * for said proposed Westchester was a questionable proposal, it became his right and duty to refrain and refuse his assent and action until such time as the proposed petitioners for said proposed village should establish, by mandamus or otherwise, in the courts their right to proceed. That ever since the presentation of said remonstrance * * * it became and continues to be the duty of said county judge to refrain from any action toward said incorporation, and that each act of his on said proposal since presentation of said remonstrance questioning the proposal of' said village, is an act of denial contrary to the rights of your petitioners to be heard and to require that said proposal shall be established before any steps shall be taken toward the consummation of such proposed village; and that under the circumstances presented by the record now before tin's court the county judge by proceeding in the face of such' remonstrance and this proceeding has become a party in law to the attempt to create such proposed village wrongfully.”

In support of his contention, counsel for the complainant cites the following cases: Page v. Board of Supervisors of Los Angeles, 85 Cal. 50; People ex rel. Saunier v. Stratton, 33 Colo. 464; People v. Emmerson, 302 Ill. 300.

There are no provisions in the Statutes of Illinois that we can find, and no provisions have been pointed out to us, which, in a proceeding to incorporate a village, permit the filing of a remonstrance such as the one that was filed in the case at bar. And there are no provisions in the Statutes of Illinois that we can find, and no provisions have been pointed out to us, which, reasonably interpreted, would justify the contention that the defendant would be personally liable in a suit in equity or in an action at law, if he failed or refused to recognize a remonstrance such as the one that was filed in the case at bar. Furthermore, we know of no rule in law or equity, and we have been referred to none, that would give the complainant a cause of action personally against the defendant merely because he refused to recognize the remonstrance that was filed by the complainant in the case at bar. The cases cited by counsel for the complainant do not support his contentions.

In our opinion the bill of complaint does not state a cause of action.

For the reasons that we have expressed in our opinion the decree is affirmed.

Affirmed.

HcSurely, P. J., and Hatchett, J., concur.


text:
    Elizabeth Daubach, Plaintiff in Error, v. The Drake Hotel Company, Defendant in Error.
    Gen. No. 31,258.
    1. Appeal and error — when incorporation of evidence in bill of exceptions is not necessary. When the only errors assigned by the plaintiff in error relate to questions of law and not of evidence, the incorporation of the evidence in the bill of exceptions is not necessary.
    2. Instructions — when number of defendant’s instructions is out of proportion to issues involved. In an action for personal injuries, where the court gave seven instructions to the jury at plaintiff’s request and twenty-one instructions at defendant’s request, held that the number of defendant’s instructions was out of proportion to the plain and simple issues involved.
    3. Instructions — when number of instructions concluding with particular phrases unreasonable. In an action for personal injuries, held that the giving at defendant’s request of seven instructions which concluded either with the phrase "then you should find the defendant not guilty” or with the phrase "then the plaintiff cannot recover,’’ one of the seven using both phrases, was unreasonable.
    4. Instructions — necessity of more than one instruction upon particular subject. The trial court is not required to give more than one instruction to the jury upon a particular subject.
    5. Harmless error — when needless number of instructions on particular subject not ground for reversal. The giving of a needless number of instructions to the jury on a particular subject will not be ground for reversal if the instructions are correct.
    6. Instructions — six instructions on contributory negligence as too many. Six instructions to the jury in a personal injury action on the subject of contributory negligence held too many.
    7. Instructions — construction of. Instructions should be construed in the light of what an ordinary person would understand them to mean.

      8. Harmless error — when doctrine of harmless error inapplicable in matter of instruction. Where the bill of exceptions does not contain the evidence, the doctrine of harmless error is inapplicable in the matter of an erroneous instruction given to the jury and if the error in the instruction is substantial prejudice must be assumed.
    9. Negligence — when instruction on contributory negligence erroneous. Instruction in an action for personal injuries held erroneous in failing to qualify the word “care” by the word “ordinary.”
    10. Harmless error — when error in instruction cannot be cured by another instruction. Where an instruction given to the jury is a peremptory one, error therein cannot be cured by any other instruction in the series of instructions.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Geo. A. Sentel, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 7, 1927.
    James C. McShane, for plaintiff in error.
    Cassels, Potter & Bentley, for defendant in error; Ralph F. Potter, Kenneth B. Hawkins and Barry Gilbert, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is a writ of error prosecuted by Elizabeth Daubach, the plaintiff, from a judgment on a verdict in favor of the Drake Hotel Company, the defendant, in an action brought by the plaintiff against the defendant to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant.

The only errors relied upon by the plaintiff for' the reversal of the judgment are errors alleged to have been committed by the trial court in the giving of certain instructions which were given at the request of the defendant. None of the evidence has been incorporated in the bill of exceptions. The only reference to the evidence which appears in the bill of exceptions is contained in the following recital:

“And thereupon, the plaintiff to maintain the issues on her part introduced and gave in evidence testimony and other evidence which fairly tended to prove the allegations of, and the cause of action alleged and stated in each and every count of the original declaration and additional counts filed in this cause; and thereupon, the defendant introduced and gave in evidence testimony and other evidence which fairly tended to disprove the allegations of, and the cause of action alleged and stated in each and all of said counts; in other words, the said testimony and evidence which tended to prove, and the said testimony and evidence which tended to disprove, the allegations of, and the cause of action alleged and stated in each and all of said counts was conflicting.”

Since the only errors assigned by the- plaintiff relate to questions of law and not of evidence, the recital in the bill of exceptions was sufficient, and the incorporation of the evidence in the bill of exceptions was not necessary. Brown v. Schintz, 202 Ill. 509, 513; Costly v. McGowan, 174 Ill. 76, 79; Illinois Cent. R. Co. v. O'Keefe, 154 Ill. 508, 513; Schmidt v. Chicago & N. W. Ry. Co., 83 Ill. 405, 412; Johnson v. City of Chicago, 189 Ill. App. 32, 33; Sears, Roebuck & Co. v. Winchester Repeating Arms Co., 178 Ill. App. 318, 321; Tipton v. Schuler, 87 Ill. App. 517, 519; Pennsylvania Co. v. Swan, 37 Ill. App. 83, 85. If, however, an erroneous instruction complained of by the appellant is rendered harmless when considered in connection with all of the evidence, the appellee may require the appellant to incorporate all of the evidence in the bill of exceptions. Tipton v. Schuler, supra (p. 519); Sears, Roebuck & Co. v. Winchester Repeating Arms Co., supra (p. 321); Johnson v. City of Chicago, supra (p. 33).

The facts alleged in the declaration are substantially as follows:

“Plaintiff alleges that long prior to and on, to-wit: May 10, 1924, the defendant possessed and operated a large fashionable hotel known as, to-wit: The Drake, in the County and State aforesaid; and it had a certain large ballroom in said hotel, which it provided, among other purposes, for the use of leagues, associations, and societies in which to conduct luncheons and entertainments.

“And plaintiff further alleges that prior to the date aforesaid, defendant contracted and agreed with the Catholic Woman’s League, a social or fraternal association, to furnish and provide for the use of said league, and for a good and valuable consideration, the use of said ballroom and suitable tables, platform, equipment and service on the date aforesaid, to enable said League to conduct a large luncheon and entertainment in said ballroom; and it was then and there agreed by and between defendant and said League, that defendant should furnish, provide and serve in said ballroom, lunches for the members of said League, and its guests, on the date aforesaid, for a stipulated price per plate to be paid to defendant.

“And plaintiff further alleges that defendant under and in pursuance of said contract or agreement with said League, provided for the use of said League upon the date aforesaid, among other things, a certain long, narrow, elevated platform extending along, parallel with and against, to-wit: the east wall of said ballroom, and with the front side or edge of said platform facing the center of the room; and it placed and provided a long table upon, along, and near and parallel with the front side or edge of said platform; and it placed and provided a great many chairs, to-wit: thirty, upon said platform and immediately behind said long table; and it thereby left a narrow passageway upon and along, and parallel with, and near the rear side or edge of said platform, for persons to walk upon or stand upon during said luncheon and entertainment.

“And plaintiff further alleges that there were certain recesses in said east wall, to-wit: 3 or 4 feet in length parallel with said platform, and about, to-wit, 2 or 3 feet in depth, or at right angles to said platform; and plaintiff alleges that unless the floor of said recesses were raised up to the level of said platform, or there were barriers placed along the rear side or edge of said platform across said recesses, there was great likelihood and danger of persons who should be standing upon, or walking upon and along said narrow passageway between the back of said chairs and the rear edge of said platform, accidentally stepping off the rear edge of said platform and down into said recesses; and said platform was not reasonably suitable or safe for use without the floor of said recesses being made level with the floor of said platform, or without a barrier or barriers extending along the rear edge of said platform and across said recesses as aforesaid; and all of which facts, plaintiff alleges, defendant prior to and then and there knew, or by the exercise of ordinary care, would have known; yet, plaintiff alleges, that defendant prior to and on the date aforesaid, wrongfully and negligently failed and neglected to so elevate the floor of said recesses, or to place a barrier or barriers across said recesses as .aforesaid, but of which condition of said platform and recesses and lack of a barrier or barriers as aforesaid, plaintiff, through no want of ordinary care upon her part, did not know prior to the time of her injuries hereinafter complained of.

“And plaintiff further alleges that she was a member of said League and a guest of said League at said luncheon and entertainment, and she was obligated to pay the stipulated sum charged for the lunch provided and served to her and plaintiff further alleges that while she was so in attendance at said luncheon and entertainment, she rightfully stood upon and walked upon and along said narrow space between the back of said chairs and the rear edge of said elevated platform; and as a direct and proximate result and in consequence of the floor of said recesses not being elevated to the level of said platform and of there being no barrier or barriers across said recesses as aforesaid, she accidentally stepped off of said platform down into one of said recesses, although, she alleges, she was prior to and then and there, in all respects, exercising ordinary care for her own safety; and by means of the premises, her left hip bone, and the neck thereof, and divers other bones, ligaments, muscles, tendons and membranes of her limbs and body were thereby then and there sprained, dislocated, fractured, broken, and otherwise injured.”

The declaration further alleges in a separate count that the defendant negligently permitted the passageway to be lighted improperly and insufficiently, and that as a consequence persons walking along the passageway would not observe, except on close inspection, the fact that the floor of the recess was below the level of the top of the plátform.

It is first objected by counsel for the plaintiff that the trial court erred in giving an undue number of instructions at the request of the defendant.

The trial court gave 28 instructions, seven at the request of the plaintiff and twenty-one at the request of the defendant.

The practice of giving an excessive number of instructions has been repeatedly condemned. Asmossen v. Swift & Co., 243 Ill. 93, 98; City of Salem v. Webster, 192 Ill. 369, 374; Adams v. Smith, 58 Ill. 417, 419; Wood v. Illinois Cent. R. Co., 185 Ill. App. 180, 184; Kravitz v. Chicago City Ry. Co., 174 Ill. App. 182, 186; Chicago City Ry. Co. v. Sandusky, 99 Ill. App. 164, 168, 169, 170; Nelson v. Chicago City Ry. Co., 163 Ill. App. 98, 102. In the case of Adams v. Smith, supra, the court said (pp. 418, 419):

“The series of instructions given, comprised the number of eighteen. They are very lengthy, and argumentó ve in style. * * * We do not understand why it is that counsel, where they have a good cause, will seek to encumber it with such a multitude of instructions, the almost invariable effect of which is, to introduce manifest error into the record. Such a practice does not enlighten the minds of a jury on the issues submitted to them, but rather tends to introduce confusion. Instructions should always be clear, accurate and concise statements of the law as applicable to the facts of the case. It was never contemplated, under the provisions of the practice act, that the court should be required to give a vast number of instructions, amounting, in the aggregate, to a lengthy address. It is a mischievous practice, and ought to be discontinued. A few concise statements of the law applicable to the facts, are all that can be required, and are all that can serve any practical purpose in the elucidation of the case.”

In our opinion the number of instructions that were given in the case at bar at the request of the defendant was out of proportion to the issues involved, which were plain and simple.

It is further objected by counsel for the plaintiff that the trial court erred in giving an undue number of instructions at the request of the defendant, which concluded either with the phrase, “then you should find the defendant not guilty,” or with the phrase, “then the plaintiff cannot recover,” or with both phrases.

At the request of the defendant seven instructions were given which contained the phrases complained of, one of the seven containing both phrases.

The giving of an unnecessary number of such instructions has been disapproved of. Nelson v. Chicago City Ry. Co., supra (pp. 102, 103); Wood v. Illinois Cent. R. Co., supra (pp. 180, 184). In the case of Nelson v. Chicago City Ry. Co., supra, the court said (p. 103):

“Considering the great number of instructions, the character and number of the repetitions of the same idea in them, we think they were well calculated to impress the jury with the thought that the court was against the plaintiff on the question of fact' and that they might readily be misled to believe that in the opinion of the court they should find for the defendant. No legitimate reason appears for the repetition of the direction to find the defendant ‘not guilty’ so frequently.”

"We are of the opinion that an unreasonable number of instructions concluded in the form complained of.

Counsel for the plaintiff further contends that the trial court erred in giving at the request of the defendant an unnecessary number of instructions on the question of contributory negligence.

The trial court gave six instructions at the request of the defendant on the question of contributory negligence. The trial court is not required to give more than one instruction upon a particular subject. East St. Louis & S. R. Co. v. Zink, 229 Ill. 180,190; National Enameling & Stamping Co. v. McCorkle, 219 Ill. 557, 562. If, however, a needless number of instructions are given on a subject, that fact will not be ground for reversal if the instructions are correct. Carson, Pirie, Scott & Co. v. Chicago Rys. Co., 309 Ill. 346, 352. We think that the trial court gave too many instructions on the question of contributory negligence, and unduly emphasized that question.

Counsel for the plaintiff further makes specific objections to a number of the instructions given at the request of the defendant. In the view that we take of the instructions specifically objected to, it will be necessary to consider only the objection to the instruetion referred to as No. 11. In respect of the specific objections to the other instructions, it will be sufficient to say that the objections to some of the instructions are well taken, but that in our opinion the errors are not of a substantial character.

Instruction No. 11 is as follows:

“The Court instructs the jury that before the plaintiff can recover in this case, she must prove by a preponderance or greater weight of the evidence each and all of the following propositions:

“1. That the defendant was guilty of some negligent act or omission charged by the plaintiff.

“2. That immediately before and at the time of the accident, the plaintiff was in the exercise of ordinary care for her own safety and that she did not, by any failure to exercise care for her own safety, cause or proximately contribute to cause, the accident.

“3. That the negligence of the defendant, if any, was the proximate cause of the accident.

. “If the plaintiff has failed to prove each and all of the foregoing propositions by a preponderance or greater weight of the evidence, or if the evidence bearing on any or all of said propositions is evenly balanced or if the evidence bearing on either or all of said propositions preponderates in favor of the defendant, then the plaintiff cannot recover in this case and you should find the defendant not guilty.”

In considering the instruction in question, since it is a peremptory instruction, the well-established rule must be borne in mind that the instruction must contain all of the elements necessary to warrant a verdict. O’Day v. Grabb, 269 Ill. 123, 133; Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, 531.

The .precise part of the instruction that is in controversy is paragraph 2. Counsel for the plaintiff has made a minute analysis of the paragraph. He contends that the paragraph reasonably is susceptible of several materially different interpretations, any one of which would render the instruction erroneous and seriously prejudicial to the plaintiff. Counsel for the defendant maintain that the paragraph should not be construed hyper critically and artificially; that the proper test to be used in ascertaining its meaning is, “What would an ordinary person understand” it to mean? We think that that test is the correct one and it is the one we shall adopt in construing the paragraph.

In the view we take of the paragraph, we do not think it is necessary to state and discuss separately all of the different readings of the paragraph which counsel for the plaintiff has pointed out. It is sufficient to say that since the word “care” in the clause “by any failure to exercise care for her own safety,” obviously should have been qualified by the word “ordinary,” it follows that the paragraph is susceptible of at least two different interpretations. Whether these interpretations are both reasonable is the question to be determined. Or to express the idea in another way, Is the.error in the paragraph a slight or a substantial one? Since the bill of exceptions does not contain the evidence, the doctrine of “harmless error” is inapplicable. If the error in the paragraph is a substantial one, we must assume that it was prejudicial. Costly v. McGowan, supra (p. 80); Schmidt v. Chicago & N. W. Ry. Co., supra (p. 412); Johnson v. City of Chicago, supra (p. 33); Sears, Roebuck & Co. v. Winchester Repeating Arms Co., supra (p. 321); Tipton v. Schuler, supra (p. 519). In the absence of a bill of exceptions containing the evidence, it would not be permissible for us to follow the rule which holds that although error may have intervened in the giving of instructions, the judgment should not be reversed where it is apparent that substantial justice has been done. Pridmore v. Chicago, R. I. & P. R. Co., 275 Ill. 386, 396. Error will compel a reversal unless the record affirmatively shows that the error was not prejudicial. Crane Co. v. Hogan, 228 Ill. 338, 340; Told v. Madison Building Co., 216 Ill. App. 29, 51; Casey v. Prudential Ins. Co. of America, 162 Ill. App. 581, 586; Melony v. Library Bureau, 148 Ill. App. 437, 442. The rule is not that the court must see that the error worked injury to the party complaining, but that the court will not affirm where error has intervened unless it shall appear from the whole record that such error reasonably could not have ' affected the result. People v. Michael, 280 Ill. 11, 15, 16; Kirby v. People, 123 Ill. 436, 439.

If from the evidence it would appear that the error in the instruction in question was harmless, the defendant should have insisted on having the evidence incorporated in the bill of exceptions. Tipton v. Schuler, supra (p. 159); Sears, Roebuck & Co. v. Winchester Repeating Arms Co., supra (p. 321); Johnson v. City of Chicago, supra (p. 33).

We are of the opinion that the error in question was of a substantial character. The paragraph in controversy contains two clauses relating to the care required of the plaintiff. These two clauses are inconsistent, one defining the degree of care to be ordinary care, and the other leaving the degree of care undefined. It is contended by counsel for the defendant that the jury manifestly would have understood that the care in the second clause meant ordinary care only. We do not think that fairly it can be contended that the jury manifestly would have adopted such a construction. It may be reasonable to suppose that the jury would have supplied the word “ordinary’’ that was omitted from the second clause. On the other hand, it would also be a reasonable supposition that the jury understood both clauses to mean just what they import, and that it was not necessary to supply the omitted word ‘ ‘ ordinary ’ ’ in the second clause; in other words, .the jury reasonably might have assumed that the two clauses were independent of each other and that each should be considered as imposing a different duty on the plaintiff as to the degree of care required by the plaintiff; that the first clause, when considered .in connection with the first and last paragraphs of the instruction, was intended to mean that, before the plaintiff could recover, she was obliged to prove by a preponderance of the evidence that she exercised ordinary care, even though the evidence did not show that the accident was proximately caused by her failure to use ordinary care; and that the meaning of the second clause, when considered in connection with the first and last paragraphs of the instruction, was that if the accident was proximately caused by the plaintiff’s failure to use any degree of care whatever, the plaintiff could not recover. It will be observed that by the last paragraph of the instruction the plaintiff is required to prove “each and all” of the “propositions” in the instruction. Since in our opinion the instruction reasonably is susceptible of two different interpretations, according to one of which the instruction would be correct, and according to the other erroneous, it would be a matter of conjecture, and not of probability, as to whether the jury adopted the construction that would render the instruction correct.

According to the well-settled rule, since the instruction is a peremptory one, the error in the instruction cannot be cured by any other instruction in the series of instructions. Cantwell v. Harding, 249 Ill. 354, 358; Cromer v. Borders Coal Co., 246 Ill. 451, 457; Illinois Iron & Metal Co. v. Weber, supra (p. 531).

For the reasons stated in our opinion, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., and Hatchett, J., concur.


text:
    Ignatz Krysiak, Appellee, v. Dennis J. Egan, Bailiff of the Municipal Court of Chicago, on appeal of R. A. Goodwin and L. R. Alexander, Appellants.
    Gen. No. 31,339.
    1. Chattel mortgages — when chattel mortgage executed by attorney in fact invalid as against prior judgment creditors. A chattel mortgage executed by an attorney in fact is invalid as against prior judgment creditors when the power of attorney appointing the attorney in fact was not acknowledged as required by the statute, Cahill's St. ch. 95, j[ 2.
    2. Chattel mortgages — when power of attorney not acknowledged. Where a chattel mortgage is followed by a certificate of acknowledgment and the latter by a power of attorney authorizing the attorney in fact to acknowledge the mortgage, and the acknowledgment does not refer in terms to either the mortgage or the power of attorney, but refers to the person "whose name is subscribed to the foregoing instrument, ’ ’ it must be regarded as an acknowledgment of the chattel mortgage and not the power of attorney.
    Appeal by defendants from the Circuit Court of Cook county; the Hon Philip L. Sullivan, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 7, 1927.
    Golden & Kagan, for appellants.
    William A. Either, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Dennis J. Egan, Bailiff of the . Municipal Court of the City of Chicago, R. A. Goodwin and L. R. Alexander, the defendants, from a judgment against the defendants in an action of replevin. The action in replevin was brought by Ignatz Krysiak, the plaintiff, to recover the possession of an automobile which was held by the bailiff by virtue of an execution levied under a judgment, which was recovered by the defendants, R. A. Goodwin and L. R. Alexander, against John Wiktarowicz.

The plaintiff, Krysiak, claims the right to the possession of the automobile under a chattel mortgage executed by Wiktarowicz to secure a note for $400 given to Krysiak by Wiktarowicz. The chattel mortgage was signed under the name of “Victorowicz.” The judgment against Wiktarowicz, in the action brought by B. A. Goodwin and L. B. Alexander, was in the name of “Wiktarowicz.” When the chattel mortgage was executed Wiktarowicz knew of the existence of the judgment against him. Wiktarowicz testified that both names, Wiktarowicz and Victorowicz, were used by him as signatures.

Counsel for the defendants ask for a reversal of the judgment on two grounds; first, that the chattel mortgage is invalid in that it purports to be executed by Alexander Mach, as attorney in fact, and that Wiktarowicz’ power of attorney appointing Mach as attorney in fact was not acknowledged by Wiktarowicz in accordance with section 2 of chapter 95, relating to mortgages [Cahill’s St. ch. 95, f[2], requiring a power of attorney to be acknowledged; and second, that the name “Victorowicz” on the chattel mortgage index would not be notice to the public that the chattel mortgage was executed by “Wiktarowicz.”

In our opinion the first contention is correct. In this view it will not be necessary to consider the second contention.

Section 2, after prescribing the form of the power of attorney, provides as follows:

“Said instrument, authorizing the acknowledgment by attorney in fact as herein specified, shall be signed by the mortgagor and shall be acknowledged before any officer authorized to take acknowledgments of deeds.”

In the case of W. W. Kimball Co. v. Polakow, 268 Ill. 344, the court said (p. 348): “A chattel mortgage is a form of lien unknown to the common law and is a creature of the statute. * * * The statute being in derogation of the common law it must be strictly construed. If not executed, acknowledged and recorded as provided by statute a chattel mortgage is invalid as to those not parties or privies to it.”

In the case at bar the evidence shows that Wiktarowicz signed a power of attorney under the name of “Victorowicz,” appointing Alexander Mach attorney in fact, but there is no direct evidence that Wiktarowicz acknowledged the power of attorney. It is contended by counsel for the plaintiff, however, that the evidence shows inferentially that the power of attorney was acknowledged by Wiktarowicz.

After the signature to the mortgage this certificate of acknowledgment appears;

“I, FRANK MACH, a notary public, in and for said county and state, do hereby certify that John Victorowicz, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act for the uses and purposes therein set forth.
“Given under my hand and official seal this first day of September, A. D. 1923.
Frank Mach,
Notary Public.”
(Seal)
Immediately following the above certificate of acknowledgment is a power of attorney signed by Wiktarowicz under the name of “Victorowicz”:
“I, John Victor owicz, the mortgagor, do hereby make, constitute and appoint Alexander Mach, attorney in fact to appear for and in my behalf before clerk of the Municipal Court of Chicago and acknowledge the • execution of the within instrument in my name and for me for all purposes as I might do, with the same force and effect.
“Given under my hand and seal this 1st day of September, A. D. 1923.
John Victorowicz (Seal)
Mortgagor ”

Counsel for the plaintiff contends that although the acknowledgment precedes the power of attorney in the order in which they appear on the mortgage, it is evident that the acknowledgment is an acknowledgment of the power of attorney. We do not agree with this contention. It will be observed that the acknowledgment does not refer in terms to the power of attorney, nor does it contain any notation that would connect it wdth the power of attorney. On the contrary the acknowledgment refers to the “foregoing instrument,” and the “foregoing instrument” is the chattel mortgage. In order that it may be held that the statute has been substantially complied with, it will be necessary to presume that the words “foregoing instrument” refer to the power of attorney. But we do not think that we should indulge such a presumption, since the statute must be strictly construed.

It is true that we have given a rigid interpretation to the statute, but the statute is explicit in its provisions, and, furthermore, it is mandatory and not directory since a fair interpretation of the statute indicates that the leglislature intended a compliance with the statutory provisions to be essential to the validity of a chattel mortgage. 36 Cyclopedia of Law and Procedure, pp. 1158, 1159.

The statute is explicit even to the extent of specifically prescribing the form of the power of attorney, and the statute imperatively directs that the power of attorney “shall be” signed and acknowledged by the mortgagor.

For the reasons stated the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded,

McSurely, P. J., and Matchett, J,, concur.