author: Mr. Justice Dove

text:
    Albert J. Leonard et al., Plaintiffs in Error, v. Marguerite Pearce et al., Defendants in Error.
    Gen. No. 8,611.

      Opinion filed September 20, 1933.
    Nelson, Burton & Quindry and Irving C. Desohauer, for plaintiffs in error.
    Werner W. Schroeder, A. F. Beaubien and Bun-yard & Behanna, for defendants in error.
   Mr. Justice Dove

delivered the opinion of the court.

The original bill in this proceeding was filed June 25, 1929, and sought to restrain defendants in error from interfering with plaintiffs in error in the full, free and uncontrolled use of the waters of Lake Zurich for all lawful purposes, including the right of navigation, fishing, hunting and bathing in and upon all of the waters of said lake and from causing the arrest of, or threatening to cause the arrest of, plaintiffs in error and any other persons who might navigate, fish, hunt or bathe in and upon the waters of the lake. Upon notice a temporary injunction was issued in accordance with the prayer of the bill on July 3, 1929. Subsequently defendants in error filed separate answers, and replications having been filed, the cause was, on February 26, 1930, referred to the master, who heard the evidence, and on November 26, 1930, filed his report of testimony together with his conclusions, finding that the plaintiffs in error had not established the allegations of their bill and recommending its dismissal. On January 12,1931, the cause was heard by the chancellor and on January 23, 1931, he read an opinion and announced that plaintiffs in error were not proper parties to ask for the relief prayed for and that he would dismiss the bill unless the State became a party complainant.

On January 26,1931, A. V. Smith, the State’s Attorney of Lake county, served notice on the solicitors interested in this proceeding that he would appear before the chancellor on January 29, 1931, and ask leave to intervene on behalf of the People of the State 'of Illinois, and at the same time served them with a copy of his proposed intervening petition. Accordingly on January 29, 1931, leave was granted the State’s Attorney to file said intervening petition, the same was filed, a hearing had thereon and leave granted the People of the State of Illinois upon the relation of the State’s Attorney to intervene and become an additional party complainant, and leave was granted the People and the plaintiffs in error to file their amended bill of complaint instanter, and the amended bill, sworn to by one of the complainants in the original bill, was filed by leave of court. On the same day, the defendants in error, Marguerite Pearce and George W. Pearce, filed their motion to strike the intervening petition of the People of the State of Illinois and the amended bill of complaint from the files, and also to dissolve the preliminary injunction.

On February 27, 1931, notice was served by counsel for. Marguerite and George W. Pearce that they would call up these motions for disposition on March 2,1931, and on that day, March 2, 1931, the motion of the Pearces to strike the amended bill of complaint from the files was heard and denied, and an order entered directing that an injunction issue upon the application of the People of the State of Illinois, according to the prayer of the amended bill and without bond. On the same day, the motion of Marguerite and George W. Pearce to dissolve the temporary injunction was allowed, and an order entered finding that an amended bill of complaint, making the People of the State of Illinois an additional party complainant, had been filed, that there was no equity appearing on the face of the original bill, that the evidence failed to sustain the allegations of the original bill, and that the complainants were not proper parties to ask for the relief prayed for. This order dissolved the temporary injunction, directed that a new injunction issue without bond, in favor of the People of the State of Illinois, in accordance with the prayer of the amended bill, and granted leave to Marguerite Pearce and George W. Pearce, to file a suggestion of damages to be heard at some future date to be fixed by the court.

On May 18, 1931, a decree upon the merits of this controversy was rendered. That decree, affirmed by the Supreme Court, Leonard v. Pearce, 348 Ill. 518, vacated the leave granted the People to intervene, struck the amended bill from the files, dismissed the original bill for want of equity and .expressly reserved the question of the assessment of damages for further hearing by.the Lake county circuit court. The final order of affirmance by the Supreme Court was filed in the Lake county circuit court on July 19, 1932.

On September 15, 1932, August Froelich, Marguerite Pearce and George W. Pearce filed their suggestions, claiming that they had sustained damages in the sum of $7,500 for the reasonable fees and charges of their solicitors and for other expenses in and about procuring the dissolution of the preliminary injunction and in a like sum for expenses of witnesses and for losses of income caused by the wrongful suing out of the injunction. On September 18, 1931, a bill of particulars was filed by the same parties, and subsequently a hearing had before the chancellor upon these suggestions, and from the evidence he found that Marguerite Pearce, George W. Pearce and August Froelich had sustained damages in the sum of $5,000 for solicitor’s fees and $2,500 for the loss of income, use and enjoyment of the premises while said injunction was in force and entered a money order against plaintiffs in error for $7,500. To review this order, the present writ of error has been sued out.

It is first insisted by plaintiffs in error that the chancellor lost jurisdiction to pass upon the suggestion of damages filed by defendants in error inasmuch as the decree of May 18, 1931, reviewed and affirmed by the Supreme Court, finally disposed of the merits of this controversy and no written suggestion of damages had been filed prior to that time.

The statute, Cahill’s St. ch. 69, jf 12, provides that in all cases where an injunction is, dissolved, the court, after dissolving such injunction and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require. The only condition imposed upon the party claiming damages is that his written suggestion must be made after the injunction is dissolved and before the suit is finally disposed of. Wing v. Dodge, 80 Ill. 564. The preliminary injunction was dissolved March 2, 1931. This suit was finally disposed of by the entry of the decree of May 18,1931, and between these dates the statute gave defendants in error a right to suggest in writing the damages they had sustained, but no such suggestion was ever filed. The court, however, had expressly granted Marguerite and George W. Pearce leave to file their suggestion of damages, and while no time was fixed in the order of March 2, 1931, for their so doing, we are nevertheless of the opinion that the court retained jurisdiction for the purpose of assessing damages so far as Marguerite and George W. Pearce are concerned. The only reasonable construction that can be given to that portion of the final decree of May 18, 1931, which reserved the question of the assessment of damages for a further hearing, is that the court meant to retain jurisdiction for the purpose of hearing at some future time the questions which would arise upon the suggestion of damages which Marguerite and George W. Pearce had been granted leave to file by the order of March 2, 1931. Hillmer Co. v. Behr, 264 Ill. 568; Welch v. City of Highwood, 165 Ill. App. 78; Poyer v. Village of Des Plaines, 123 Ill. 111.

It is next insisted that the chancellor erred in not striking from the files the suggestion of damages and the bill of particulars filed by the defendants in error, inasmuch as August Froelich never made any motion to dissolve the temporary injunction, was never granted leave to file a suggestion of damages and the suggestion that was filed was filed after the suit was finally disposed of upon its merits. The suggestion of damages was joint, and stated that the defendants in error, Marguerite Pearce, George W. Pearce and August Froelich, were claiming damages in the sum of $7,500 for the fees and charges of their solicitors and for other expenses in and about procuring the dissolution of the injunction, and in a like sum for certain losses of income which they had sustained by the wrongful suing out of the injunction. The bill of particulars contained 14 items and recited that plaintiffs in error were indebted to defendants in error, Marguerite Pearce, George W. Pearce and August Froelich, in the aggregate sum of $10,108.86. In only two orders is there any reference to the assessment of damages; the first is the order entered on March 2, 1931, which recites that the cause came on to be heard upon the motion of Marguerite Pearce and George W. Pearce to dissolve the injunction and gave these defendants leave to file a suggestion of damages; the other was in the decree of May 18, 1931, which reserved for further hearing the question of the assessment of damages. The suggestion and bill of particulars which were filed were the joint suggestion and joint bill of particulars of Marguerite Pearce, George W. Pearce and August Froelich. No motion had ever been made by August Froelich to dissolve the temporary injunction, and his counsel insist that inasmuch as the evidence discloses that Mrs. Pearce and Mr. Froelich together own an undivided interest in certain portions of the land covered by the lake, it was not necessary for him to do so, but he was entitled to receive the benefit or advantage of the motion filed by Mr. and Mrs. Pearce. As sustaining this contention, the case of Scherzer v. Keller, 321 Ill. 324, is relied upon. It appeared in that case that Charles L. Keller and H. P. Harrington were partners engaged in business as bridge engineers, and after a temporary injunction had been issued as prayed for in the bill, the defendants moved for its dissolution, which was heard upon the bill, answers, exhibits and affidavits, and the contention was made that the assessment of damages could not be made to both of the defendants, inasmuch as the evidence disclosed that Keller employed the attorneys and therefore Harrington was not damaged. In disposing of this contention the Supreme Court said: “Keller and Harrington were partners. The injunction was against both of them. The business was the business of the partnership, in which Harrington was as much interested as Keller, and the assessment was properly made in favor of the two jointly.” In the instant case Mr. Froelich employed Messrs. Schroeder and Beaubien to represent his interests, while Mr. and Mrs. Pearce employed Messrs. Runyard and Behanna with whom Mr. McG-aughey was associated. The motion to dissolve was entered by the solicitors for Mr. and Mrs. Pearce and did not purport to be a motion on behalf of anyone else except them, while in the Scherser case both defendants moved for a dissolution of the injunction and filed suggestions of damages within the time granted by the court. There is nothing said in that case in conflict with our holding here. So far as the temporary injunction in this case is concerned, Mr. Froelich made no complaint thereof, but did join with the other defendants in error in filing a suggestion of damages and a bill of particulars. In view of the fact that he had not filed any motion to dissolve the injunction, and had filed no suggestions prior to the entry of the final decree, and had not been granted leave to do so by that decree or by any order entered prior thereto, we are clearly of the opinion that his joining in the suggestions and in the bill of particulars was unwarranted. Mr. Froelich could not have incurred any obligation to pay his solicitors any compensation to procure the dissolution of the temporary injunction because they made no motion in his behalf and exerted no professional efforts to bring that about. The motion of plaintiffs in error to strike the joint suggestion of damages and the joint bill of particulars from the files should have been sustained.

It will be observed that on November 26, 1930, the master, to whom the cause had been referred, filed his report of the testimony and recommended that the bill be dismissed for want of equity, inasmuch as the complainants had not proven the allegations of their bill. While there is no order showing that the cause was heard upon its merits on January 12, 1931, the evidence in this record of the solicitors who participated in the several hearings discloses such to be the fact. Sylvester Quindry testified that he was one of the solicitors for plaintiffs in error, having become connected with the case after the testimony had been closed by the master. He further testified that on January 12, 1931, he argued the case upon its merits at Woodstock and that the next proceeding in the case was on January 23, 1931, at Waukegan where the chancellor read an extended opinion and announced what his decision would be, and stated that he would dismiss the bill unless the State was made a party. Werner W. Schroeder testified that he was a practicing lawyer and had been connected with this litigation since its inception, representing August Froelich and associated with Mr. A. F. Beaubien; that after the evidence was concluded, he aided in the preparation of a written brief, which was submitted to the master, and after the coming in of the master’s report, the larger portion of a day was spent in arguing the case before the court at Woodstock, and thereafter the court rendered an opinion at Waukegan. G-eorge S. McGaughey testified that he was a practicing attorney and connected with the- firm of Runyard and Behanna and represented George W. and Marguerite Pearce through the entire hearing of this case, and recalled that the court gave his opinion in writing at Waukegan, stating that the relief prayed for could not be granted complainants and he would dismiss the case on the ground that necessary parties complainant had been omitted, as the People of the State of Illinois should be made a party complainant.

After the hearing had been had on January 12, 1931, and after the chancellor had announced his decision on January 23, 1931, the next step was taken by the State’s Attorney of Lake county, who, .on January 26, 1931, served notice on the solicitors for complainants and defendants that he would, on January 29, 1931, appear before the chancellor and ask leave to intervene and served them with a copy of his proposed intervening petition. In pursuance to this notice, leave was granted to the State’s Attorney to intervene on January 29,1931, and on that day his intervening petition was filed, a hearing had thereon, the prayer thereof granted, and an amended bill of complaint was filed by leave of court. Following this, but on the same day, the defendants, Marguerite Pearce and George W. Pearce, filed their motion to strike this intervening petition and the amended bill of complaint from the files and also filed their motion to dissolve the temporary injunction. Nothing further was done until February 27, 1931, at which time counsel for Marguerite Pearce and George W. Pearce served notice upon opposing counsel and the State’s Attorney that they would call up these motions for disposition on March 2, 1931, and on that day the evidence discloses that after the motion to strike the intervening petition and the amended bill from the files had been heard and denied by the chancellor, that thereupon one of the solicitors representing one of the defendants in error suggested that the temporary injunction ought to be dissolved, and the chancellor stated it would be, but that immediately upon the application of the State, he would grant an injunction to the People without bond, as prayed for in the amended bill.

It is true that one of the solicitors did testify that he believed that there were about three arguments had upon the motion to dissolve, but the record and the other testimony discloses that no steps were taken in the case after the motion to dissolve was filed on January 29, 1931, until the motion was heard and allowed on March 2, 1931, except the giving of notice on February 27, 1931, that the motion to strike the amended bill from the files and the motion to dissolve would be called up for disposition on March 2, 1931.

The propriety of suing out the temporary injunction was therefore never called up or considered by the court until after the case as stated in the original bill had been heard upon its merits. The evidence had been concluded before the master, objections "to his report had been presented, argued and overruled. The report of the master and his conclusions had been filed. A hearing had been had before the chancellor and he had taken the case under advisement for 10 days and had announced his decision. The State’s Attorney had been granted leave to intervene, his intervening petition had been filed, a hearing had been had thereon and an amended bill of complaint had been filed, and the cause was pending upon a motion to strike the amended bill of complaint from the files before the motion to dissolve the temporary injunction was filed.

In Attorney-General v. Marsh, 16 Sim. 570, a temporary injunction was granted on February 16, 1849, restraining the defendant from selling or disposing of the property or effects of John Squire, a lunatic, until defendant should fully answer the bill or the court make further order to the contrary. On February 21, 1849, an amendment was made, making the lunatic coplaintiff with George Squire, the relator. On March 27, 1849, a motion was made to commit the defendant for a breach of the writ. In denying that motion, the chancellor held that the parties who obtained the preliminary injunction by the addition of a coplaintiff made it impossible for the defendant to answer the bill upon which the preliminary injunction issued, and that the original bill no longer existed and the preliminary injunction was gone by reason of the amendment. In Bmney’s Case, 2 Bland (Md.) 99, it was held that a temporary injunction would not, as of course, be dissolved on making a trivial or unimportant amendment, but where an amendment is asked for the purpose of introducing new facts or where- the object is to bring before the court the principal mover of the alleged wrong, so as to require a new frame and direction to be given to the writ of injunction, then the very prayer for such an amendment carries with it a tacit admission that the basis of the injunction, which had been previously granted, is substantially wrong, and that therefore, upon granting the amendment, the injunction is gone, of course, unless expressly saved by the terms of the order granting the amendment. In this State these authorities may not be followed because it has been held that the amendment of a bill or the filing of an amended bill, after a temporary injunction has been granted, does not operate to dissolve the injunction as of course. 32 C. J. 407; Craig v. Craig, 175 Ill. App. 176; Savio v. Vieno, 203 Ill. App. 631. However, in the instant case, the chancellor had granted plaintiffs in error leave to join with the People of the State of Illinois in filing an amended bill without making any reference to the temporary injunction previously issued. By joining with the People of the State of Illinois and filing an amended bill, the complainants in the original bill in effect abandoned their original, bill and the whole cause of action was merged or transferred to the amended bill, and while no formal order had been entered dissolving the temporary injunction, we are at a loss to understand how, after the chancellor had announced his conclusion, and after the amended bill had been filed and after the chancellor had heard and refused the motion to strike the amended bill from the files, any extensive legal services were required to bring about the formal order of March 2 dissolving the preliminary injunction. Can it be seriously contended that $5,000 is the reasonable, usual and customary fee in Lake county for the legal services rendered, as shown by this record, in bringing about the dissolution of this injunction1?

Mr. McG-aughey, one of the solicitors representing Marguerite and George W. Pearce, testified that from an examination of the files and his knowledge of the case, he was of the opinion that $5,000 would be the reasonable, usual, fair and customary solicitor fees of the defendants upon the motion to dissolve the temporary injunction. He detailed at length, on cross-examination, the services rendered in checking over the bill, the parties thereto, the ownership, title and descriptions of the land involved, and the work involved in preparing the defense, briefing the cause and examining authorities from about every State in the Union. He stated that a proper preparation of the defense necessitated an examination and search of old records of the Lake county • board of supervisors, checking records at Springfield, investigating leases, plats and interviewing witnesses. He further testified that he made a thorough brief covering the field of temporary injunctions prior to the time the motion to dissolve was granted, and estimated that the services rendered by the solicitors in the preparation of the pleadings and upon the review by the Supreme Court would be reasonably worth $2,500 in addition to the $5,000 for their services in procuring the dissolution of the injunction.

Mr. Werner W. Schroeder testified that he and his associate, representing Froelich, proceeded to examine the title and went through a number of abstracts in order to ascertain whether Lake Zurich was in fact meandered, consulted with the office of the auditor of public accounts, with certain officers of the Chicago Title and Trust Company, communicated with the Department of Interior and the Commissioner of the G-eneral Land Office, obtained photostatic copies of the survey of the townships where this lake is located, made a trip to Washington, D. C., and took the deposition of the Assistant Commissioner of the Land Office, interviewed witnesses, examined leases and other documents, prepared a brief with an assistant, upon which they worked for practically a month, examined all of the authorities in Illinois having to do with water rights and furnished the master with a written brief having also to deal with adverse possession, dedication and other issues involved in this cause. After detailing at length the services that were performed, this witness was asked to state whether he had an opinion, from his knowledge and information of this case and the services performed by him and his associates, as to the fair and reasonable solicitor fees upon the dissolution of the temporary injunction and after answering in the affirmative, stated that for the work up to the decree and to the time of the dissolution of the temporary injunction and for the part of the work that was done to procure the dissolution of the temporary injunction, it was his opinion that a fair and reasonable and customary fee would be $5,000. On cross-examination, he said that taking into consideration the value of all the services done by all the attorneys up to the date of the entry of the decree, he would say that such services were worth at least $10,000, outside of the work that was done in the preparation of the briefs in the Supreme Court, and that he arrived at his opinion of $5,000 for procuring the dissolution of the injunction as that necessitated about one-half the entire work that was done.

The law is well settled in this State that a defendant may recover as damages, upon the dissolution of a temporary injunction, the solicitor fees which he has paid or become obligated to pay, for services rendered in obtaining a dissolution of an injunction, but not those rendered in the general defense of the suit. Lambert v. Alcorn, 144 Ill. 313. Only such services as were rendered in getting rid of the preliminary injunction on a motion to dissolve are recoverable as damages and where the evidence makes no discrimination between services rendered in the case generally and services which were strictly necessary to procure the dissolution of the injunction, there is no evidence upon which the assessment of damages can be based, and an allowance in such a case cannot be sustained. 32 C. J. 477; Zibell v. Barrett, 30 Ill. App. 112; Landis v. Wolf, 206 Ill. 392; Jevne & Almini v. Osgood, 57 Ill. 340; Alexander v. Colcord, 85 Ill. 323; Dempster v. Lansingh, 234 Ill. 381. If the injunction is the primary object of the suit, and a motion is made to dissolve, counsel will be entitled to a reasonable fee based upon the labor performed in the attempt to dissolve. The damages allowed by the statute are only those sustained by reason of an improper and wrongful suing out of the injunction and the solicitors’ fees can only extend to the motion to dissolve. Marks v. Columbia Yacht Club, 219 Ill. 417; Lawrence v. Traner, 136 Ill. 474. The statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground. The charge for lawyer fees could only extend to the motion to dissolve the injunction. Elder v. Sabin, 66 Ill. 126. The damages assessed upon the dissolution of an injunction should be only for the additional expense incurred in procuring the dissolution over and above those necessarily incurred in preparing the case for hearing on the merits. Blair v. Reading, 99 Ill. 600. If the dissolution of' an injunction results merely from the defense and trial on the merits and no effort to obtain such dissolution otherwise is shown to have been made, there can be no allowance for attorney fees irrespective of whether an injunction is or is not the sole relief sought in the original suit. 32 C. J. 475. The counsel fees which may be recovered must be reasonable and such as would be fair compensation for the services rendered in procuring the dissolution of the injunction, and are limited to those necessary in procuring such dissolution, and if a defendant, instead of attempting to remove the preliminary injunction, seeks rather to prevent the issuing of a permanent injunction or directs his efforts to defeating the action of complainant, the expense of counsel fees incurred is an incident of the suit and is not recoverable as damages sustained by reason of the injunction, and if there is nothing to show what portion of the services were rendered in attempting to procure such dissolution, as distinguished from those rendered in general defense of the suit, there can be no recovery. 14 R. C. L. 487, 488.

In our opinion, the sum fixed as damages for solicitor fees is excessive, and the evidence does not discriminate between the services rendered in procuring the dissolution of the injunction and the services rendered in the preparation and hearing of the case upon its merits. The testimony of none of the witnesses was limited to the proceedings or service rendered upon the motion to get rid of the injunction, and the order allowing defendants in error any sum for solicitor fees cannot be sustained upon the evidence in this record.

The chancellor found that defendants in error had sustained damages in addition to solicitor fees to the extent of $2,500 for loss of income, use and enjoyment of the premises while the preliminary injunction was in force. The basis for this finding is the evidence of Marguerite Pearce, August Froelich and Homer Cook, most of which was heard over the objection of plaintiffs in error, and inasmuch as there must be another hearing, this evidence will be considered. Mrs. Pearce testified that she had resided at Lake Zurich for 35 years and had run a boat livery there for five years, that during the season of 1928 she rented the use of her portion of the lake to 19 persons, who placed thereon 231 boats for which she charged $3 per boat, but as we understand her testimony, the amount which she actually collected averaged only $1.30 per boat. She further testified that in one season prior to the issuance of the injunction, there were 152 boats on the lake from which she was able to get $281, which sum included $50 which she received for a large motor boat. She further testified that the income from boats in 1931 was around $250, and during the season of 1932 and up to September 18,1932, she had eight boats of her own which she rented, receiving therefor $380, the usual rental therefor being 25 cents per hour, and $1.50 per day. She testified further that at one time during the season of 1932 she counted on the lake 162 boats placed there by other parties, and computing them at the rate she got for her eight boats, she was of the opinion that $3,300 would have been taken off the lake during the season of 1932, one-third of which would have been hers, and it was her opinion that $4,000 was the fair, cash, market value of the use and enjoyment of the waters of the lake per season while the injunction was in force.

August Froelich testified that he had resided at Lake Zurich for 27 or 28 years, and that its waters were used for boating, fishing and bathing, and that in his opinion the fair, cash, market value of the use and enjoyment of the waters of the lake for these purposes was approximately $2,000 to $2,500 per year. Upon cross-examination he stated that this amount would be derived from the rental of boats for boating and fishing purposes, that all together there were about 200 boats upon the lake during the year, 30 of which were owned by cottage owners and proprietors around the lake, that he had about 12 boats for rent, receiving therefrom 25 to 35 cents per hour on week days, and 50 cents per hour on Sundays and holidays, that he rented his boats just the same whether there was an injunction or not, but was of the opinion that he could have rented more if the injunction had not been granted inasmuch as the injunction did restrain him from interfering with anybody else using the lake. He further testified that he could not give any information about the amount of business he did before the injunction was issued because he only became the owner about a year prior to the time the suit was instituted.

Homer Cook testified that he lives at Wauconda and has operated a boat livery at Bangs Lake for seven years, charging 50 cents per boat for the first two hours, 15 cents per hour thereafter, and $1.25 per day. Bangs Lake covers about 500 acres, has 1,000 summer residents and 500 all-year residents and is located on Band Boad, six miles from Lake Zurich, which is also located on Band Boad. Mr. Cook testified that he is acquainted with Lake Zurich and its surroundings and that defendants in error own about 150 acres in the center of that lake touching the shores a little bit on the south and west side. From his experience in operating his business at Bangs Lake and his knowledge of the property involved in this suit, he was of the opinion that $1,500 was the fair, cash, market value per year for the use and enjoyment of boating on Lake Zurich. On cross-examinátion, he said in 1931 he had 98 boats on Bangs Lake, the gross average rental being $37.50 per boat, and that his opinion as to the value of the use of Lake Zurich was based upon what he made at Bangs Lake and that this amount would be made by renting boats if defendants in error had a monopoly on the 150 acres in the middle of Lake Zurich. He further testified that in order to do so “it would take around fifty boats, they would be rented some days. That is a chance. I rented all of mine some days, all speculation upon how many boats would be rented.”

Compensation for losses sustained by a defendant which are the actual, natural and proximate result of the wrong committed by the restraining order while it is alive and operating is the proper measure of damages in a case of this character. Any actual damage, suffered by reason of the wrongful suing out of the injunction is a proper subject of inquiry, but claimed damages which are so uncertain as to be incapable of ascertainment cannot be recovered. Probably the most general rule, where the defendants have been deprived of the control, use or enjoyment of real or personal property is that there may be a recovery of the value of the use or the reasonable rental value of the property during the time its enjoyment was prevented by injunction. This is the true measure of damages applicable where a person has been prevented by injunction from completing a house, but in such a case it has been said that such damages cannot be defined with any degree of accuracy. 14 R C. L. 482, 483. A recovery may generally be had for the loss of the use of specific property where the reasonable worth of such use may be shown with fair certainty. 8 R C. L. 490. The measure of damages is the rental value of the property if it has a rental value or if not, then the value of its use to the injured party for the time he was deprived of it. Priestly v. Northern I. & C. R. Co., 26 Ill. 205. And in a case where the use of property is restricted by contract, a recovery can only be had on the basis of the loss of such restricted use. 8 R. C. L. 490, 491. In estimating the damages where an established business is interfered with, profits which would have been made may be recovered, Chapman v. Kirby, 49 Ill. 211, but a witness cannot give it as his opinion as to the amount of profits that could have been made, or that the profits lost were a specified sum or give his judgment or opinion as to the extent of loss a merchant will suffer by the breaking up of his business. 8 R. C. L. 649, 650.

The value of this property owned by defendants in error, as expressed by the witnesses, was in renting boats for fishing, boating, bathing and other pleasure purposes. The preliminary injunction did not interfere with defendants in error going on or using the lake or any part of it, but it did deprive them of the exclusive control of that portion of the lake owned by them. Had no injunction been issued, defendants in error and the other owners of the lake or those whom they might permit were the only persons who might go upon and use it. The injunction therefore did prevent defendants in error, as proprietors of a portion of the lake, from exercising exclusive control and dominion over that portion of the lake which they owned. The evidence discloses that the lake covers about 235 acres of land, approximately two-thirds of which is owned by defendants in error, and of this portion defendant in error Marguerite Pearce owned one-third and defendant in error August Froelich owned the remaining two-thirds, so that of the entire.lake, Mrs. Pearce owned approximately two-ninths and August Froelich four-ninths, and it was of these undivided interests that defendants in error were entitled to the exclusive use, enjoyment and control.

Ho established business had been interfered with by the injunction, yet it seems clear.to us that some damage was perhaps suffered by defendants in error by reason of being deprived of the exclusive use, control and enjoyment of their own property. It is impossible to prove the exact amount of damages sustained, but this is no reason for denying damages altogether. The injunction did not deprive defendants in error from renting boats as they had a right to do previous to the issuance of the injunction. All they were restrained from doing was from interfering with every other person who might desire to use their property. What this would amount to in damages is almost impossible of ascertainment. They certainly were not entitled to receive the fair, cash, market value of the exclusive use of the waters of Lake Zurich for boating, fishing and bathing purposes during the time the injunction was in force, but would only be entitled to receive the fair value of the exclusive use of that portion of the lake which they did own while the injunction was in force. As there is no competent evidence in the record showing this amount, that portion of the order allowing defendants in error $2,500 for loss of income, use and enjoyment of their premises must also be reversed.

The order of the circuit court is reversed and this cause is remanded to the circuit court of Lake county, with directions to strike the joint suggestion of damages and the joint bill of particulars from the files and grant leave, if so desired, to defendants in error, Marguerite Pearce and George W. Pearce, to file suggestions of damages and for further proceedings not inconsistent with this opinion.

Reversed and remanded ivith directions.


source: Caselaw Access Project

license: Public Domain

text:
    M. S. Erzinger, Appellee, v. Edward F. Gerrity and Loretta Gerrity, Appellants.
    Gen. No. 8,630.

      Opinion filed September 20, 1933.
    Hunter & Minor, for appellants.
    Walter C. Schneider and Charles W. Kurtz, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee filed her bill to foreclose a trust deed executed by appellants, in which they conveyed to C. B. Sawyer, trustee, certain premises in Kankakee referred to in this record as the laundry property. The trust deed is dated November 1, 1924, and was given to secure the payment of one note for $15,000 due five years after date, with six per cent interest per annum, interest payable semiannually. Edward F. Gerrity and his wife Loretta M. Gerrity, and C. B. Sawyer as trustee, whom the bill álleged had no interest in said note or trust deed except as trustee, were made defendants, together with C. B. Sawyer, individually, H. H. Whittemore, Walter G. Childs, and H. Victor McBroom, subsequent purchasers, to whom the bill alleges these premises were sold on February 11, 1925. A number of mechanic’s lienholders were also made defendants who filed answers and cross-bills, but as no complaint is made of that part of the decree which fixed their rights, no further reference will be made to them.

Appellants Edward F. G-errity and Loretta M. Gerrity filed their answer and cross-bill admitting the execution of the note and trust deed, and that appellee was the legal owner and holder thereof, and that C. B. Sawyer holds title to the premises for the benefit of himself, Whittemore, Childs and McBroom. This answer and cross-bill then alleged that on February 11, 1925, appellants sold-the laundry property to Messrs. Sawyer, Whittemore, Childs and McBroom for $21,000, and that by an agreement among themselves, the legal title to said premises was taken in the name of Sawyer and the property was conveyed by appellants to him, but that $6,000 of the purchase price was paid by Sawyer, Whittemore, Childs and McBroom, who assumed and agreed to pay said $15,000 note secured by said trust deed as the remaining part of said consideration, and that by reason thereof, said Sawyer, Whittemore, Childs and McBroom are personally liable for the payment of said indebtedness. This cross-bill alleges further that after the conveyance to Sawyer, he collected the rents and paid the interest upon said $15,000 note until November 1, 1929, and that he and his associates partly repaired and altered the building on said property, which resulted in mechanic’s liens being placed thereon. The cross-bill made Sawyer, Whittemore, Childs and McBroom parties defendant, along with numerous lienholders, and prayed that appellants be relieved from being decreed to pay the amount which may be due upon the $15,000 note, but that Sawyer, Whittemore, Childs and McBroom be decreed to pay the' same. Sawyer, Whittemore, Childs and McBroom answered the original bill and this cross-bill, and by their answers they admitted that Sawyer holds title to the property for the benefit of all of them. They set up the statute of frauds to the effect that there was no memorandum in writing signed by Sawyer, Whittemore, Childs and McBroom which would bind them or render them personally liable for this debt and expressly deny that they are personally liable for the $15,000 incumbrance, or any part thereof, or for any deficiency which may exist upon the sale of said premises.

After the cause was at issue, it was referred to a special master, who took the evidence, and among other things found that Sawyer, Whittemore, Childs and McBroom did not assume and agree to pay the mortgage in question, but were liable for the balance owing the lienors for work and material and that appellants were personally liable for the amount due upon the note, secured by the trust deed. The cause was heard by the chancellor upon exceptions to the master’s report, who overruled them and entered a-decree of foreclosure and sale as prayed for in the original bill and dismissed the cross-bill for want of equity, ordering appellants to pay the amount found due on the $15,000 note, and directing Sawyer, Whittemore, Childs and McBroom to pay the balance due the lienors, amounting to $4,908.74 and costs, and in default thereof, ordering the property be sold by the master in chancery. The decree further provided that in the event there was a sale and a deficiency, the master should report the amount thereof, and upon its confirmation, appellants should pay such deficiency with interest and that appellee should have execution therefor. From this decree, Edward F. Gerrity and Loretta M. Gerrity have prosecuted this appeal.

The evidence discloses that the husband of appellee, being the owner of the laundry property on November 1, 1924, sold it to appellant Edward F. Gerrity for $17,500, receiving therefor $2,500 in cash, together with the trust deed sought to be foreclosed in this proceeding, and the accompanying note of $15,000. On February 1, 1925, Gerrity entered into a written contract with C. B. Sawyer, by the terms of which Sawyer bound himself to convey to Gerrity certain described premises in the City of Kankakee, spoken of as the theater property for which Gerrity agreed to pay $32,000. The contract recited the manner in which Gerrity was to pay this $32,000 as follows, viz.:

“Eleven thousand dollars on or before ten days after date, execute a trust deed back on the premises above described (the theater property) for $15,000.00 due three years after date with interest at six per cent per annum, payable semiannually and convey by good and sufficient warranty deed the east 46 feet of Lots 1, 4 and 5 in Block 20, Town of Kankakee (the laundry property) subject to $15,000.00 encumbrance and interest thereon from Feb. 1, 1925, being balance of purchase price.”

The evidence further discloses that by a warranty deed dated February 14, 1925, C. B. Sawyer and wife conveyed the theater property to Edward F. Gerrity and Harry L. Topping for an expressed consideration of “One dollar” and Edward F. Gerrity and wife, by their warranty deed dated February 11, 1925, conveyed the laundry property to C. B. Sawyer. This deed recited that the premises therein described were conveyed “subject to an encumbrance of $15,000.00, secured by Trust Deed, now a lien against said above described property.” These deeds were both acknowledged on February 14, 1932, and recorded that day at the same hour.

Through the efforts of Sawyer, a loan of $15,000 was procured from the City Trust and Savings Bank upon the theater property, Messrs. Gerrity and Topping executing the papers therefor. The proceeds of this loan were turned over to Sawyer and this amount, together with $11,000 and the deed for the laundry property, was what Sawyer received in exchange for his deed to the theater property.

Appellants contend that Sawyer, Whittemore, Childs and McBroom are personally liable for the payment of the debt secured by the trust deed which is being foreclosed in this proceeding, having assumed and agreed to pay the note of $15,000 and interest thereon when they took title to the premises conveyed to them on February 11, 1925.

It is first insisted that the contract of February 1, 1925, is ambiguous, inasmuch as the phrase “being balance of purchase price” may be construed to mean either the balance of the purchase price of the laundry property or the balance of the purchase price of the theater property, and therefore appellants seek to invoke the rule which permits the introduction of parol evidence showing the circumstances which surrounded the parties at the time the instrument was executed, and the object which they had in view, so that the court can then give effect to the real intention of the parties whenever that can be done, without doing violence to the plain meaning of the language used. Over the objections of counsel for appellees, Mr. Topping was permitted to testify before the master that when this contract was drawn up by Mr. Sawyer, Mr. Gerrity wanted to put some words in it to the effect that Mr. Sawyer was to assume and agree to pay the $15,000 incumbrance upon the laundry property, but Mr. Sawyer said that was not necessary, as McBroom, Whittemore, Childs and himself always paid their bills; that Mr. Gerrity then said that he was not going through with the deal unless he was relieved from liability upon this incumbrance, and Mr. Sawyer inquired of him what he was worrying about, assured him that McBroom, Whittemore, Childs and himself were worth that much money and that he would change the contract and he thereupon wrote in the words “being balance of purchase price.” Gerrity also testified that he sold the laundry property to Sawyer for the contract price of $21,000, and that he purchased the theater property for $32,000, giving $11,000 in cash, a mortgage back on the premises for $15,000 and his interest in the laundry property; that he received from Sawyer for the laundry property $21,000, which was paid by the four owners of the property, agreeing to pay off the incumbrance amounting to $15,000 and giving him, Gerrity, $6,000 credit on the purchase price of the theater property, which represented his equity in the laundry property. Topping corroborated this testimony, stating that the consideration for the laundry property was $21,000 and the contract price of the theater was $32,000, of which $11,000 was paid in cash and the remaining $6,000 represented Gerrity’s equity in the laundry property over and above the $15,000 incumbrance.

C. B. Sawyer testified, that he and his associates agreed to trade the theater property for the laundry property for a difference of $11,000; that Gerrity wanted a loan of $15,000 on the theater property and Sawyer negotiated such a loan with the City Trust and Savings Bank; that Topping and Gerrity came to his office and said something about him and his associates assuming and agreeing to pay the incumbrance upon the laundry property of $15,000 and that he told them emphatically that they- would ■ not assume or agree to pay it; that he considered the equity in the laundry property worth very little and would not assume the payment of the mortgage and never did at any time agree to pay the mortgage, and that he does not recall writing the words “being balance of purchase price” in the contract; that while properties were exchanged, there was no sale involved, >but the parties did agree upon placing a valuation of $32,000 upon the theater property and $21,000 upon the laundry property, and that the difference of $11,000 was paid in cash, the transaction being simply an exchange of equities.

H. H. Whittemore and Walter G; Childs each testified that he did not agree to assume or pay the $15,000 incumbrance on the laundry and that Sawyer was told that the only way the deal could be consummated was that neither of them would assume or be bound by the mortgage and neither at any time said to Gerrity or anyone else that he would pay the mortgage.

In our opinion the provisions of the contract and the deed are in entire harmony and neither instrument is ambiguous. Much of the foregoing evidence is clearly incompetent. The intention of the parties to this contract must be gathered from the instrument itself. What the contract says is that Gerrity was to pay $32,000 for the theater property. How was this to be done? First, Gerrity was to pay $11,000 on or before 10 days after February 1,1925; second, Gerrity was to execute a trust deed conveying the theater property to a trustee to secure the payment of $15,000 due three years after date, with six per cent interest per annum, interest payable semiannually, and third, execute a warranty deed conveying the laundry property, said deed to be subject to a $15,000 incumbrance, this deed to be accepted by Sawyer as the balance upon the purchase price of the theater property. That this is the construction and interpretation which the parties themselves put upon this contract is evidenced by the fact that its terms were substantially carried out by Gerrity paying the cash, executing the trust deed and making the conveyance just as the contract provided. It is always competent,¿however,.to show by parol evidence the true consideration in a deed. Metzger v. Emmel, 289 Ill. 52. It is well settled that it is competent to show by parol that no consideration was in fact paid or received, or that the consideration was greater' or less than or different from the one expressed. 10 R. C. L. 1042. In Lloyd v. Sandusky, 203 Ill. 621, the court referred to the case of Drury v. Holden, 121 Ill. 130, and said: “Whenever the question has come before this court, it has been uniformly held that the statement of the amount of the consideration and acknowledgment of its receipt in the deed were formal recitals, their only operation in law being to prevent a resulting trust, and that they might be explained, varied and contradicted by parol evidence.” The right, however, to vary or explain the consideration expressed in a written contract, or to prove that it was never paid, does not authorize the introduction of such testimony to affect the terms or validity of the contract. Schneider v. Turner, 130 Ill. 28.

The parol evidence therefore of what the true considerations were for the conveyances of the properties was competent and counsel for appellants earnestly insist that the undisputed evidence discloses that the agreed purchase price of the laundry was $21,000, which sum was paid by appellees crediting $6,000 upon the purchase price of the theater property, and assuming and agreeing to pay the $15,000 incumbrance upon the laundry at the time Sawyer accepted the deed therefor. In support of this contention, appellees rely on the cases of Lange v. Bartlett, 207 Ill. App. 422; Siegel v. Borland, 191 Ill. 107; Ray v. Lobdell, 213 Ill. 389, and several others.

In the sale of mortgaged premises, a mortgagor may sell and convey them subject to the lien of the mortgage, but under such circumstances as to impose a personal liability for the payment of the debt upon the purchaser or he may sell them subject to the mortgage under such circumstances as impose no personal liability upon the purchaser, or he may merely convey to the purchaser his equity of redemption. The mere purchase of land or acceptance of a deed does not render the purchaser liable for an incumbrance upon it in the absence of any agreement by him to pay it, either express or implied. To render the grantee personally liable for the payment of the mortgage debt, there must be a contract, express or implied, on the part of the purchaser, to assume the mortgage debt, for the grantee in a deed assumes no personal liability unless he so contracts or the amount of the mortgage is deducted from the purchase price. So 'one who purchases only the vendor’s equity of redemption in incumbered property is not personally liable to pay the incumbrance. Reeve Illinois Mortgages, sec. 287, Yol. 1, page 336. “Liability upon an existing mortgage debt,” continues this author, “may be assumed by deed, by a separate written agreement, or by a verbal promise, or by circumstances which raise an implied promise to pay the debt. It is fundamental that to create such a liability there must be an express promise, or the amount of the mortgage must have been deducted from the purchase price of the land so as to raise an implied promise to pay.” Reeve Illinois Mortgages, sec. 288.

In Assets Realization Co. v. Heiden, 215 Ill. 9, the court said: “A purchaser may assume a mortgage indebtedness according to the terms of the mortgage without it being expressly so provided in the deed of conveyance, but in the absence of the written assumption, the evidence must be clear and show that the assumption was in fact made.” See also Rogers v. Herron, 92 Ill. 583, and Nicholson v. Nicholson Coal Co., 190 Ill. App. 607. If the evidence discloses that the purchaser as a part of the consideration did in fact assume and agree to pay the mortgage, or if he withheld a part of the purchase money “for the purpose of paying the mortgage debt, the effect will be the same as though an assumption clause appeared in the deed and such an agreement upon the part of the vendee is not within the statute of frauds, as a parol promise to pay the debt of another, because it is not his money but the vendor’s, which is to be used for such payment.” Eeeve Illinois Mortgages, secs. 291-293.

There is nothing in the contract which expressly bound Sawyer to assume this incumbrance, nor did the deed executed by Gerrity and accepted by Sawyer contain a provision to that effect. This deed, however, did recite that the premises therein described were conveyed “subject to an encumbrance of $15,000.00 secured by trust deed now a lien against said above described property.” In Lange v. Bartlett, 207 Ill. App. 422, the court held a subsequent purchaser liable for ■a deficiency decree where the conveyance recited that the property was conveyed subject to a certain mortgage thereon, and said “The sole point raised is as to whether the appellant assumed the mortgage. We think the law is well settled that where a deed of property is made subject to an existing mortgage, the words, ‘subject to,’ in the absence of anything in the context which would throw a light upon the intention of the parties, do not, in themselves, show an intention on the part of the grantee to assume the mortgage, and that in such a case the intent of the parties is a question of fact to be established by the evidence.” After reviewing the evidence, the court held that not only the parol .evidence justified the findings of the decree, but the proper construction of the words of the contract itself placed' the obligation to discharge the mortgage squarely on the purchaser.

Siegel v. Borland, 191 Ill. 107, was a suit to foreclose a trust deed and it appeared that there was an exchange of properties, the property acquired by appellant being subject to a mortgage. In reversing the decree of the lower court, which held that an implied agreement to assume the payment of the mortgage arose out of the transaction, the court said: “The deed was to be made, and was made, subject to the trust deed. The contract and deed not only failed to imply any assumption of the debt, but rather excluded the implication. Complainant can only establish the liability of appellants by proving a contract to assume and pay the debt, or some part of it. To sustain the decree, the facts proved must amount to an agreement to pay the $25,000 upon the debt secured by the trust deed. It is true that a contract may be implied, and that if an amount of an encumbrance is included in and forms a part of the consideration which a grantee promises to pay for premises, and he retains that part of the purchase price, the law will create a personal liability against him, on the ground that he has agreed to pay such indebtedness. In such case the law presumes that the grantee has agreed to apply the money so retained for the purpose of paying the encumbrance. Either, there must be an express assumption of the indebtedness, or the amount must be allowed in the purchase price, so that the law will imply the promise. ’ ’

In Ray v. Lobdell, 213 Ill. 389, the sole question for determination was whether the defendant in error in that proceeding, at the time he acquired title to the leasehold interest, assumed and agreed to pay the indebtedness secured by the trust deed. The deed which conveyed the property to him recited a consideration of one dollar and that the deed was made subject to said trust deed. The court, after quoting at length from the opinion in Rapp v. Stoner, 104 Ill. 618, and Siegel v. Borland, supra, .said: “The rule to be deduced from the authorities is, if the vendee of land encumbered by mortgage or trust deed purchases only the vendor’s equity of redemption, he is not personally liable to pay the encumbrance resting upon the land unless he expressly assumed and agreed to pay the same. If, however, he purchases land for its full value and retains in his hands, out of the consideration, a sufficient sum to satisfy the encumbrance, he may be held personally liable for the payment thereof, even though he has not expressly agreed to pay the encumbrance resting upon the land.”

All of the authorities agree that to create a personal liability upon the part of Sawyer and his associates, there must be something in the nature of a contractual obligation amounting to an agreement by them to pay off this incumbrance. Reeve Illinois Mortgages, sec. 294. This may be an express obligation or an implied one arising from the fact that the grantee promised and agreed to pay a definite consideration for the property and that the amount of the incumbrance is a part of that consideration, for “if the amount of the mortgage is included in and forms a part of the consideration which the grantee promises to pay for the property, and he retains that part of the purchase price, the law will create a personal liability against him, upon the ground that he has agreed to pay such indebtedness. . . . Where it is doubtful whether a deed of mortgaged premises binds the grantee to pay an existing incumbrance, evidence of the value of the property, or of the agreed consideration for it, and as to whether the grantee retained any of the consideration to pay the debt, is admissible to aid in construing the deed. But the implied contract to pay to the holder of a mortgage money retained for that purpose by the grantee arises only from the presumed understanding of the parties, and cannot exist when there was an express understanding to the contrary and a distinct refusal by the grantee to pay the debt.” Reeve Illinois Mortgages, sec. 295.

Considering all of the parol testimony of the several witnesses in this case with reference to the true consideration of this conveyance, together with the evidence in this record as to the value of the laundry property and taking into consideration the fact that the deed itself recites that the conveyance was made subject to this incumbrance, which in our opinion is essentially different from an agreement to assume and agree to pay it and which rather excludes the implication that it was assumed, we, after a careful review of all the evidence, agree with the findings of the master who heard and saw the witnesses, and whose findings were approved by the chancellor, that Sawyer did not for himself or for his associates, nor did they for themselves, assume and agree to pay the trust deed upon the laundry property. From this record we cannot say that Sawyer and his associates promised to pay $21,000 for this laundry property, retaining therefrom a sufficient sum to pay the principal and interest upon this $15,000 incumbrance. All they did was to accept a conveyance of Gerrity’s equity therein, which the evidence discloses was of little, if any value.

The decree in this case, however, is erroneous in one particular. It awarded appellee, Erzinger, an execution for any deficiency that might exist after the sale of the premises by the master. This could not rightfully have been ordered. Hartman v. Pistorius, 248 Ill. 568; Attebery v. Blair, 244 Ill. 363.

The decree of the circuit court is affirmed in all respects except that part thereof ordering an execution which is reversed. The costs of this appeal will be divided equally between appellants and appellees.

Decree affirmed in part and reversed in part.


text:
    Ida Berlin, Appellee, v. The Udell Printing Company, Appellant.
    Gen. No. 8,664.
    Opinion filed September 20, 1933.

      Runyard & Behanna, for appellant; William R. Behanna and Charles L. Whyte, Jr., of counsel.
    Leon J. Ell and Kurt Kiesow, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On January 7, 1933, appellee, the plaintiff below, recovered a judgment by confession against appellant, defendant below, in term time for $1,085. On the same day appellant entered its motion, supported by the affidavit of John L. Udell, its president, to vacate said judgment or, in the alternative, to open said judgment and for leave to plead. This motion was heard and the court ordered a remittitur in the sum of $20, attorney fees theretofore allowed, and after reducing said judgment to $1,065, denied the motion of appellant, and refused to either vacate said judgment or open it up and grant leave to plead. From this order the record is brought to this court for review by appeal.

The judgment was taken upon two bonds and interest coupons thereto attached, all executed by appellant, and dated May 1, 1928. Each bond matured May 1, 1934, and was for the principal sum of $500 and bore six per cent interest per annum, payable semiannually, evidenced by coupons, each for $15. Each bond was payable to bearer and disclosed that it was secured by a first mortgage upon an apartment building located at 540 Central avenue, Highland Park, Illinois, and bore a certificate that it was one of a series of 275 bonds issued by appellant, aggregating $187,500. Each of these bonds contained the following provisions, viz.:

“It'Is Further Expressly Agreed that if default be made in the payment of any one of said bonds or coupons at the time and place when and where the same becomes due, and such default shall continue for thirty days, then the said entire principal sum of this bond shall, at the election of the legal holder hereof, at once become due and payable, such election to be made at any time after the expiration of said thirty days, without notice, and the entire principal sum secured by said Trust Deed may thereupon become due and payable at the election of the legal holder or holders of five or more of said bonds, upon the terms and under the conditions prescribed in the Trust Deed. It is still further agreed that if default be made in the payment of any one of the said interest coupons or of the said principal sum, when and where the same shall become due, then interest at the rate of seven per cent per annum shall be allowed on both principal and interest in default, until the same are fully paid. Said Trust Deed and this bond are parts of the same contract and are to be construed together.

“The undersigned hereby appoints any attorney of any court of record to be its true and lawful attorney irrevocably for it and in its name to appear in such court in term time or vacation after this bond becomes due, whether by election as aforesaid, upon giving thirty days’ notice of such default and election, or by regular maturity of this bond, waiving service of process and confessing judgment in favor of the legal holder hereof for the amount due hereon, with costs and Ten Dollars attorney’s fees; and also to file a cognovit therefor with an agreement therein that execution may issue forthwith and that no writ of error or appeal shall be prosecuted upon judgment entered by virtue hereof, nor any bill in equity filed to interfere with the operation of said judgment, and to release all errors that may intervene in entering up said judgment or issuing execution thereon, hereby ratifying and confirming all that said attorney may lawfully do by virtue hereof. ’ ’

The declaration, after setting forth the foregoing provisions, averred that by said power of attorney appellant authorized any attorney of any court of record to appear for it at any time after the date of said notes, upon default in the payment of interest coupons for a period of 30 days, and confess a judgment without process in favor of the holder of said notes for such amount as may appear to be due thereon, together with costs and $10 attorney fees on each note. The declaration then alleged that on May 1, 1932, two interest coupons became due and payable and that a demand was made for the payment of the same, but payment was refused and that thereafter, on the 18th day of July, 1932, appellee elected to declare the whole of said amount due and payable.

There are only two provisions in these bonds with reference to declaring them due prior to their maturity date — one in the paragraph preceding the power of attorney and the other in the power of attorney itself. The paragraph preceding the power of attorney provides, so far as it is material to this case, that in the event of the nonpayment of interest when due and a continuation of such default for 30 days thereafter, then the entire principal sum shall become due at the election of the legal holder, such election to be made without notice at any time after the expiration of said 30 days. The other provision is found in the power of attorney, and it authorized a judgment to be taken if the bond became due by reason of the default and election as provided in the preceding paragraph, but coupled therewith is the phrase “upon giving thirty days’ notice of such default and election.” Before the authority given in the warrant of attorney could therefore be invoked, the holder must not only elect to declare the principal sum due 30 days after default has been made in the payment of an interest coupon, but the holder must do something else and that is to give to the maker notice of the fact that there has been a default and an election upon the part of the holder to declare the principal sum due, and that 30 days must intervene between the time notice of such default and election is given and the time when the holder would be authorized to invoke the provisions of the warrant of attorney and recover a judgment by confession. In our opinion the giving of this 30 days’ notice of such default and election was a condition precedent to the right of the holder to avail himself of the authority embraced within this power of attorney, and inasmuch as the declaration failed to allege that this condition was complied with, the judgment was unauthorized.

The power to confess a judgment must be clearly given and strictly pursued, and a departure from the authority conferred will render the confessed judgment void. Wells v. Durst Chevrolet Co., 341 Ill. 108; Keen v. Bump, 286 Ill. 11. The warrant in the instant case was to confess judgment for the amount due upon these bonds prior to their regular maturity date, only in the event there had been a default and an election as provided, in the paragraph preceding the power of attorney and upon giving 30 clays’ notice of such default and election. The pleadings do not disclose that this provision was complied with and were insufficient therefore to support the judgment entered and appellee exceeded the authority conferred upon her by the provisions of this warrant of attorney and the judgment so entered is void. White v. Jones, 38 Ill. 159; Baering v. Epp, 247 Ill. App. 51.

There is no merit in the suggestions of counsel for appellee that the bill of exceptions does not preserve the questions presented for. review.^ Embraced in the bill of exceptions is the alternative motion made, by appellant to either vacate or open up the judgment, the supporting affidavit filed therewith, also the judgment and order of -the court thereon, together with a stipulation of counsel that the original bill of exceptions might be incorporated in the transcript of the record. It discloses also that it was approved by-counsel for appellee and the trial judge certified that the bill of exceptions contained all of the proceedings had upon the hearing before him. It is true that in addition to the foregoing, there is also found in the bill of exceptions the declaration, cognovit and affidavit of the due execution of the bonds sued on, and while these instruments are also included in common law record, their inclusion in the' bill of' exceptions does not prevent this court from passing upon the question presented for review by this appeal.

In view of the conclusion we have reached, there is no necessity to consider the other reasons urged for a reversal of this order. The judgment order of the circuit court, denying the motion of appellant, is reversed and this cause is remanded with directions to vacate the judgment .by confession rendered against appellant on January 7, 1933.

Reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    John Hogrefe, Appellee, v. Edward S. Johnson, Appellant.
    Gen. No. 8,656.

      Opinion filed September 20, 1933.
    E. Bentley Hamilton and Howard White, for appellant.
    Louis Knoblock, for appellee; George W. Hunt, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee, John Hogrefe, plaintiff below, and hereinafter called plaintiff, filed his suit against Edward S. Johnson, defendant below, for damages received by said plaintiff in a collision of plaintiff’s automobile with that of defendant. Plaintiff recovered a verdict in the sum of $3,250. The trial court ordered a remittitur of $750, which was accepted by plaintiff, and judgment was accordingly entered for $2,500. Defendant, Johnson, prosecutes this appeal.

It appears from the evidence that plaintiff left his home at Buckley, Illinois, at an early hour on January 10, 1931, for the purpose of taking his brother to work at Mansfield. Plaintiff was driving a Chevrolet coupe. The weather on this particular morning was bad. It was foggy, raining, and freezing weather. The evidence shows that the fog and rain gathered so rapidly on the windshield and froze so quickly that the windshield wiper had no effect thereon and would not keep the windshield clear of ice and frost. Plaintiff stopped his car and cleaned his windshield four times between Buckley and Champaign, cleaning it the last time about two miles before reaching Champaign. Defendant arrived in Urbana that morning by train, where he was met by his family. Defendant is engaged in the dredging business and has driven an automobile since 1905. He was driving with his family from Champaign to Peoria in his automobile, which was a Packard sedan. Defendant stopped once after leaving Champaign to clean the ice and frost from his windshield. Defendant’s car was equipped with double windshield wipers, but they would not keep the glass clear from the freezing rain and fog. Just prior to the accident defendant had arrived at a point on the paved highway, about seven miles west of Champaign; his windshield was covered with ice and frost, so that his visibility was very bad. It was about 6:30 a. m. The defendant had the lights on his car burning brightly,, and also had a spotlight turned to the right side of the road to assist him in locating a suitable place to drive his car off the pavement for the purpose of cleaning his windshield. Defendant had just driven around a long sweeping curve of some 500 feet, and was starting along a straight stretch of road. He had proceeded around the curve at a slow rate of speed, due to the icy condition of the pavement and extremely poor visibility. The evidence shows that he was preparing to leave the pavement and was driving at the approximate ' speed of five miles per hour.

The plaintiff was a young man 27 years old, engaged in farm work, and living at Buckley. He was taking his brother to Mansfield to work. The brother was supposed to start work at 7 a. m. At-the point approximately seven miles west of Champaign, plaintiff drove his automobile into the rear of defendant’s automobile, thereby knocking off the rear bumper, the right rear fender, breaking the glass on the right rear side, causing the right rear tire to blow out and cutting two holes through the rear of defendant’s car, one of such cuts being about 12 inches in length, and the other about eight inches in length. The Packard sedan that defendant was driving was a heavy car and the body was steel. Upon the collision, plaintiff’s car overturned in the ditch, breaking plaintiff’s arm.

It appears from the defendant’s evidence that immediately after the accident, plaintiff stated he was driving his automobile. about 40 miles per hour. On the trial of the case, he claimed that he was operating his car at the speed of 25 miles per hour. Plaintiff stated that his visibility was about 25 or 30 feet; that it was a dark, foggy, bad morning; that it was raining, and the rain froze on- the windshield, and that the pavement was covered with ice. Plaintiff’s evidence shows that he was proceeding under the above conditions as to weather and highway at the speed of 25 miles per hour and with a visibility, of but 25 or 30 feet. Plaintiff offers as his reason for the collision that he did not see defendant’s car in time to stop his car and avoid running into it. The evidence demonstrates this fact. Plaintiff urges that defendant had stopped upon the highway and was therefore negligent. The weight of the evidence is against this contention, and shows that defendant was proceeding along the highway in his own proper traffic lane, and in a westerly direction. Plaintiff came up behind defendant’s car, and due to his impaired visibility, and the speed at which he was traveling, ran into defendant’s car without any fault on the part of the defendant. Plaintiff states that no car or vehicle was coming from the west toward him at the time of the collision, yet, instead of turning his car to the left and passing the defendant’s car in the other traffic lane, he turned his car to the right, striking the defendant’s car on the right rear corner. Plaintiff offers no reason why he did not turn his car to the left and pass defendant’s car in the usual and customary manner and upon the other traffic lane of the highway.

The speed at which the defendant’s car was traveling is not a controlling element in this case. It was traveling in its own traffic lane and its presence there upon the highway was legal and rightful, and the evidence does not disclose that the operation of defendant’s car was in any way the efficient and proximate cause of the collision. The evidence clearly demonstrates that the collision was the result of the negligence of the plaintiff, who, disregarding his own safety and the safety of others then upon the highway, operated his automobile under such circumstances and conditions and at a rate of speed which prevented his having his car under such control as to avoid running into other vehicles then in the rightful use of the highway. The rights of persons operating automobiles upon public highways are equal and their duties toward one another are reciprocal; and persons.operating automobiles upon the public highways, if in the exercise of ordinary care, should be on the alert for other cars upon such highway. Persons operating automobiles are chargeable with notice that others are to be expected to be using such highway, and they owe a mutual duty to each other to exercise reasonable care to avoid collisions.

Whenever a person has contributed essentially to his own injury by his own negligence, the law will give him no redress. Collins v. McMullin, 225 Ill. App. 430. The question resolves itself into one as to whether or not the plaintiff’s conduct was the proximate cause of his injury, and if so, his contributory negligence will bar his recovery.

In Harrison v. Bingheim, 350 Ill. 269, with reference to duties of the plaintiff, it is stated: “It was his duty to use reasonable care to have his automobile under such control as would enable him to avoid collision with other automobiles, whether parked along the curbing or traveling in the accustomed line of traffic.”

A recovery in this case cannot be had or sustained unless it is affirmatively shown by the evidence that the plaintiff was in the exercise of due care for his own safety. The facts relative to the care exercised by him are not in dispute and they plainly indicate a disregard for his own safety. After carefully reviewing the present record, and considering all the facts and circumstances in evidence, we are of the opinion that the judgment appealed from cannot stand. We do not believe that the defendant is under any liability to the plaintiff. In our opinion, it clearly appears from the preponderance of the evidence that the damages suffered by plaintiff were the result of and caused by his own negligence; and that his contributory negligence was the proximate cause of his injuries. He was aware of the weather conditions, the poor visibility, and the treacherous condition of the highway. Under such circumstances, it was his duty to keep a sufficient lookout ahead that would have enabled him to discover other vehicles upon the highway traveling in the same direction as himself, and to have operated his automobile in such a manner as to either be able to stop the same, or to have passed the automobile in front of him in the usual and ordinary manner, the road then being clear. Johnson v. Kushler, 269 Ill. App. 553.

There is no evidence in the record tending to prove due care on the part of the plaintiff or to rebut the undisputed proof of his contributory negligence. We therefore find, as an ultimate fact to be incorporated in the judgment, that the plaintiff was not in the exercise of due care and caution at the time and immediately before the accident, and that he was guilty of such contributory negligence as to bar his recovery. The trial court should have directed a verdict for defendant, in response to defendant’s motion made therefor. On account of this error, the cause is reversed without remanding. Crawford v. Cahalan, 259 Ill. App. 14.

Reversed.


author: Mr. Presiding Justice Wolfe

text:
    Frank C. Cochran, Complainant, v. Abimelech Malick et al., Defendants. Edward G. Schottler, Appellant, v. Oscar Sandstrom et al., Appellees.
    Gen. No. 8,625.
    Opinion filed September 20, 1933.
    Peden, Melaniphy, Ryan & Andreas, for appellant; Willis A. Overholser, of counsel.
    Edwards & Block, for appellees; Sidney H. Block and J. E. Bairstow, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This case was before this court on a prior appeal as Gen. No. 8,369, and the facts involved in the mechanic’s lien in the same suit were before this court as Gen. No. 8,318. While these two appeals were pending in the Appellate Court a sale of the property, was had. The property was sold for $14,021.74, an amount sufficient to satisfy in full the complainant in the mortgage foreclosure suit with an overplus of $1,176.17. After the sale of the property cross-bills were filed by Sandstrom and Rynskel jointly, and by Schottler, the purpose of which was to continue the receiver in possession during the redemption period. In their joint cross-bill Sandstrom and Bynskel Brothers alleged that their lien claims were unpaid; that the Liberty Supply & Lumber Company had been adjudged bankrupt and that Abimelech Maliek, the owner of the equity, was insolvent; that the premises were not adequate security for the amount due Sandstrom and Bynskel under the decree, and that the only funds out of which Sandstrom and Bynskel could be paid were the rents that would accrue in the receiver’s hands and unless realized from time to time their debts would be entirely lost. The cross complainants made a motion to continue the receiver, in possession of the property.

In the order entered on the 24th of February, 1931, the court found the proceeds of the sale were insufficient to satisfy the claimant’s lien; that the premises were insufficient security for the payment of the indebtedness secured by the mechanic’s lien on the premises, and that Maliek and the Liberty Supply & Lumber Company were insolvent. The court continued the receiver in possession for the statutory period of redemption. There accumulated in the hands of the receiver during the entire period for which he served the net amount of $2,375.13 after the payment of all the receiver’s fees, attorneys’ fees, expenses and so forth.

During this time, both of the former decrees were affirmed by this court, which found that Sandstrom and Bynskel had valid mechanic’s liens against the premises involved, and affirmed the findings of the trial court that their liens for the amounts due them were prior and superior to the lien of the $25,000 trust deed of the appellant Edward G-. Schottler. The question of the priority of the claims of the appellee and appellant were finally adjudicated in our opinion in that case.

The receiver filed his final report on August 22,1932. At that time a motion was made on behalf of Sandstrom and Rynskel Brothers for a distribution of the money in the hands of the receiver to be paid to them to apply toward the payment of the unsatisfied portion of their lien claims. Edward Gr. Schottler, the appellant herein, at that time made a cross motion for the application of the funds in the receiver’s hands on the indebtedness of the mortgage held by him, which was involved in the two appeals above referred to.

The master sold the premises in February, 1930, for a sum sufficient to satisfy the debts due the complainant, Cochran, in the original suit, and realized over and above the sum necessary to satisfy him in his claim an overplus of $1,176.17. The court entered an order directing the receiver to pay the sums of money in his hands to Oscar Sandstrom and the Rynskel Brothers, to apply on their unpaid lien claims. Maliek, the owner of the equity of redemption, and Russell Edward, the receiver, have not appealed from this decision. Edward Gr. Schottler, the holder of the note secured by the trust deed, which had been decreed by the decree of foreclosure to be subject and subordinate to the liens of Sandstrom and Rynskel Brothers, brings the case to this court for review.

The question involved in this suit is, Shall money realized by the receiver from the property be distributed to those holding liens against the property in discharge of their debts, in the same priority and order as their lien attached to the premises from which the income was derived?

Cahill’s St. ch. 82, jf 12 (section 12 of ch. 82 of Smith-Hurd’s 1931 revised statutes) provides that “the court shall have power to appoint receivers for property on which liens are sought to be enforced in the same manner for the same causes and for the same purposes as in cases of foreclosure of mortgages, etc. ’ ’ In onr former opinion we held that the appellees in this case had a prior lien to that of the appellant. It is' contended by the appellant that on account of their mortgage providing that the rents and profits should be applied to the payment of their mortgage, they are entitled to the proceeds of such rent, now in the hands of the receiver, to be applied on their indebtedness. The receiver who had formerly been appointed to collect the rent and profits for the benefit of the holders of the first mortgage was on motion of the appellees continued for the benefit of lien claimants. This under the statutes was their legal right.

We are of the opinion that the court properly found that the money in the hands of the receiver should be apportioned among the lien claimants in accordance with their priority as found by the trial court and affirmed by this court. (Cross v. Will County Nat. Bank, 177 Ill. 33.) We find no reversible error in this case and the judgment of the circuit court of Lake county is hereby affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Marcus J. Sternberg, Defendant in Error, v. William J. Shine, Plaintiff in Error.
    Gen. No. 8,654.

      Opinion filed September 20, 1933.
    Frank A. McCarthy and Theodore N. Schnell, for plaintiff in error; John E. Toomey, of counsel.
    George D. Carbary, State’s Attorney, and Marcus J. Sternberg, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Marcus J. Sternberg filed a petition in the county court of Kane county charging William J. Shine with wilful neglect of his minor children. The petition is as follows: “Your petitioner Marcus J. Sternberg, a reputable person and resident of said county, respectfully represents unto your honor that Marjorie Shine, Eleanor Shine, Loretta Shine, and Dorothy Shine, are girls under the age of sixteen years, to wit: Of the ages of nine, seven, five and thirteen years respectively in said county, and are dependent children in this: That the said (a) William J. Shine, father of said children wilfully neglects to provide the necessary money for the proper clothing, education and maintenance of said children, and that said children are neglected by the said William J. Shine in this; that said William J. Shine, refuses to furnish the necessary money for their support, maintenance and education; that said children are dependent children in this; that said William J. Shine does not furnish money for their proper support, maintenance and education and their mother Frances Shine is unable to earn sufficient money for their support, maintenance and education, and that (b) William J. Shine, father, is living in the City of Chicago, Cook County, Illinois, and the mother, Frances Shine is living in the City of Elgin, Kane County, Illinois; that the said Frances Shine is employed and is able to earn the sum of Fourteen Dollars ($14.00) per week; that the said William J. Shine is employed by the North Shore Electric Company and is able to furnish the support, maintenance and education for the children.

“Tour petitioner therefore humbly prays this Honorable Court that summons may issue for the said William J. Shine and Frances Shine commanding them to produce said children before this Honorable Court on an early day named therein, and that a hearing may be had as provided by statute and that such order may be made in the premises as to this Honorable Court may seem fit and proper.”

The plaintiff in error waived summons and filed his answer to said petition; denied specifically the allegation of the petition and alleged that he was ready, willing, and able to support his children in his own home in the City of Chicago, but that his wife continually harassed him with divorce actions and refused to let his said children live with him.

The case came on for a hearing before the court and after considerable evidence was heard an order was entered finding that the children were dependent children and committed them to the guardianship of Frances Shine, their mother. The said order provided that she could hold said children and have the care and support and educate them until they were of the age of 18 years and that the plaintiff in error was ordered to pay to her as guardian of said children the sum of $65 per month. He was further ordered to execute an assignment of that part of his wages payable to said guardian. From this order William J. Shine brings the case to this court upon a writ of error.

The evidence shows that William J. Shine and his wife have been living separate and apart for about five years; that during all this time William J. Shine has maintained a home in Chicago; that during all or most of this time, Mrs. Frances Shine has been living in Elgiil, Illinois. Frances Shine during this time has started several suits for divorce against William J. Shine, but in each instance the divorce proceedings have been dismissed without a trial on their merit. The evidence is uncontradicted that the father William J. Shine during all this time has been able, ready and willing to provide for his minor children and that he has maintained a suitable home for them in a good residential district of the City of Chicago, easily accessible to the public schools and that he was able to give them all of the care and attention to properly rear his children.

In the case of Butler v. Commonwealth, 132 Va. 609, 110 S. E. 868, 869, the Supreme Court of Virginia in passing upon a case identical with this case used the following language: “Now in this case, it is perfectly clear that neither the wife nor the wife’s father could charge the defendant in a civil suit for the support and maintenance of the children. His duty to support them is based largely upon his right to their custody and control. To say the least of it, he has the right at common law to maintain them in his own home, and he cannot be compelled against his will to do so elsewhere, unless he has refused or failed to provide for them where he lives. These propositions are abundantly supported by authority. ’ ’

In the case of Sullivan v. People, 224 Ill. 468, 476, the Supreme,Court of our State says: “The father’s right to the custody of his child is superior to the right of any other person if he is a fit person to have such custody and is so circumstanced that he can provide the necessaries of life and properly maintain and educate the child. (Miner v. Miner, 11 Ill. 43; Hewitt v. Long, 76 id. 399; Cormack v. Marshall, supra.) The law charges the father with the maintenance of his child, and the legal presumption, in the absence of all proof, is that he is entitled to its care and custody. The right is not an absolute one, and it may be divested by the paramount power of the State for good and sufficient cause. The father may by his misconduct forfeit his right (10 Am. & Eng. Ency. of Law,— 2d ed. — 1038); but proof of the facts which show such forfeiture, or that he is unfit to perform the duties or obligations resting upon him, is upon the one who alleges them. ’ ’

In the case of Stafford v. Stafford, 217 Ill. App. 548, affirmed in 299 Ill. 438, it is held that as between father and mother of minor children, the father has a superior right to its custody, all things being equal. In the case of the People v. Waddell, 247 Ill. App. 255, the Appellate Court of the Fourth District held: “A man cannot be said wilfully to neglect and refuse to support his child where his wife, without reasonable excuse, keeps it away from him. A man has a right to maintain his children in his own home, and cannot be compelled, against his will, to do so elsewhere, unless he had refused or failed to provide for them where he lives.”

The evidence in this case not only fails to show that the father of these children has refused or failed to provide for them at his own home but it is uncontradicted that he is ready, able and willing to take these children in his own home and give them all the advantages of the same.

The People in their information charged that William J. Shine refused to furnish the necessary money for their support, maintenance and education and the burden of proof was on them to establish that fact. This they have wholly failed to do, and the county court of Kane county erred in finding that said children were dependent children and in appointing Frances Shine, their mother, their guardian, and in ordering William J. Shine, the father, to pay their guardian $65 a month for the support of said children.

The said judgment is hereby reversed. There are numerous other assignments of error but we do not deem it necessary to comment upon them for the proper decision of this case.

Judgment reversed.