text:
    W. C. Clark et al., Appellees, v. Hoering-Buchholz Company, Inc., Appellant.
    Opinion filed June 5, 1929.
    Rehearing denied July 16, 1929.
    J. E. Dunnegan and J. P. Streuber, for appellant.
    Chapman & Du Hadway, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Lillian A. Boot leased the premises in question in this case to William II. Neerman for a period of five years from May 1, 1924. His lease contained a provision that in case of a sale of the building the lessee would vacate the premises upon notice in writing within one year from the date of the notice. About two years later the lessee and his employees organized a corporation, appellant herein. The agent who collected the rent for Miss Boot signed her name to a consent to the assignment of the lease to appellant. At the same time he made another indorsement on the lease to the effect that appellant would give possession of the premises at any time on a 90-day notice in writing from the lessor. There is no evidence that the agent had authority, in writing, to make either of the indorsements aforesaid. Neither the lessor nor the lessee signed the indorsements. On June 2, 1926, the same agent collected two months’ rent from appellant for which he gave a receipt with an indorsement on the back thereof stating that the rent was accepted with the understanding that the lease should bear an indorsement stating that in case of sale the lessee agreed to vacate the premises upon a written notice within 90 days. On December 1, 1926, Miss Boot conveyed the premises to C. A. Caldwell and on January 24, 1927, Mr. Caldwell served a written notice upon appellant to quit and deliver up possession of the premises at the expiration of 90 days from the end of that month. On February 1,1927, Mr. Caldwell leased the premises to appellees for a period of ten years, and on June 10, 1927, appellees, by a written notice, demanded immediate possession of the premises from appellant.

Appellant having failed to deliver possession, appellees began this action of forcible entry and detainer before a justice of the peace. There was an appeal to the county court and appellees procured a verdict and judgment for the possession of the premises.

Appellant contends that the court erred in the giving and refusing of instructions. That question has not been properly preserved and cannot be considered. The bill of exceptions, as amended, contains a motion for a new trial, but it does not contain the ruling of the court thereon or an exception thereto. The bill of exceptions contains all of the instructions that were given and refused, but it does, not show that any exception was taken to any of the court’s rulings in regard to the instructions. We would not be warranted in holding that the court erred in its rulings on instructions. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589; People v. Gabrys, 329 Ill. 101.

Under the same authorities, however, we are required to consider the rulings of the court as to the admission and exclusion of evidence. The court permitted appellees to introduce in evidence the receipt for rent and the indorsement on the back of the receipt hereinabove mentioned. They were also permitted to offer in evidence the indorsements which were put upon the lease by the agent of Miss Boot. The original lease required the lessee to vacate the premises in case of a sale within one year from the date of notice. The indorsements put upon the lease, and upon the back of the receipt for rent, were not signed by the lessor or lessee. The agent who made the indorsements was not authorized in writing so to do. The coqrt erred in admitting those indorsements in evidence. Without those indorsements the verdict should have been in favor of appellant. The record discloses that appellant had vacated the premises before the case was tried in the county court. That being true, it seems strange that counsel would proceed with the trial. It would seem that the only question left was that of who should pay the costs.

The lease contained a provision that the lessee would not assign it without the written consent of the lessor under the penalty of forfeiture and damages. Appellees contend that the assignment of the lease to appellant worked a forfeiture. The record discloses that the lessor accepted rent from appellant after the assignment of the lease. That was a waiver of the alleged forfeiture. Webster v. Nichols, 104 Ill. 160.

While we think the litigation should be brought to a close, yet we would not be warranted in affirming the judgment.. The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Andrew L. Wiegert, Appellee, v. Davis Cleaning & Dyeing Company, Appellant.

      Opinion filed June 5, 1929.
    Rehearing denied July 26, 1929.
    H. L. Browning and Josiah Whitnel, for appellant.
    Felsen & Kane, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellee started suit in a justice of peace court against the appellant, the Davis Cleaning & Dyeing Company, a corporation, to recover the value of a rug that had been delivered by Wiegert to' the cleaning company, and recovered judgment in that court for $115. The suit was started on the 6th day of January, 1928. The case was appealed by the Cleaning & Dyeing Company to the circuit court of St. Clair county, and a trial by jury was had, and a verdict rendered for plaintiff for $95; a remittitur of $10 was entered, and judgment on the verdict was entered for plaintiff for $85.

The Davis Cleaning & Dyeing Company prosecutes an appeal to this court.

On or about the 15th of October, 1927, the appellee delivered the rug in question to a driver of the cleaning company who delivered the rug to the appellant for the purpose of having it cleaned. About five days after the rug was delivered to the appellant a rug was delivered by the appellant- to the appellee and the appellee paid the appellant $3 for the cleaning of the rug. After the rug was delivered to the appellee it ,was rolled up and placed in appellee’s home. About a month after this rug was delivered to the appellee a sister-in-law of the appellee told the appellee that this rug was not his rug. The appellee immediately went to the office of the appellant and complained to it that it had not delivered to him his own rug and told it what the difference was between this rug and the rug that had been delivered to it. Appellant’s agents and employees told him that they thought that the right rug had been delivered, but they would look into it.

About three weeks later appellee again called the attention of the appellant to the fact that his rug had not been delivered to him, and asked what it was going to do about it, and it insisted that it had delivered the right rug.

The controverted question is whether appellee’s old rug was delivered to him. The jury by their verdict have found that it was not. We think there is ample evidence in the record to sustain the finding of the jury that the rug which was originally delivered from appellee to appellant was not the same rug the appellant later delivered to appellee as his rug.

When the appellee delivered his rug to the appellant to be cleaned for hire it became a bailment between the parties, and the attorneys on each side of this controversy have treated it as such in their briefs and arguments. The law is that a bailee for hire must use ordinary care in the preservation of property intrusted to his care, and the identical property is to be returned. If the bailee receiving the property fails to return it, the presumption arises that the loss is due to his negligence, and the law imposes upon him the burden of showing that he exercised that degree of care required by such bailment. (Chicago German Hod Carriers Union v. Security Trust & Deposit Co., 315 Ill. 204, 211; Miles v. International Hotel Co., 289 Ill. 320; Fleet v. Hertz, 201 Ill. 594.)

The appellant insists that because the appellee did not return the rug which it had delivered to the appellee he is estopped from denying that the rug it had delivered to him was his rug, and cites numerous cases to support this contention. Examination of all those cases discloses that the question of bailment is not involved in any of them, but all are cases arising out of sales contracts and have no application to the questions of law in "this case.

The law of bailments is that the identical article delivered must be returned, and hence it was the duty in this case for the Cleaning & Dyeing Company to clean the rug and deliver the same rug to the appellee. The fact that the appellee has not sent the rug back to appellant will not bar recovery in a case of this kind. The record is silent as to whether the cleaning company ever requested the return of the rug from the appellee, or that the appellee ever refused to return it, if he received pay for his own rug, or if his own rug was delivered to him.

Before the justice of the peace a bill of particulars was filed as follows: “To one rug, October 15, 1927— $115.00.”

Appellant insists that the plaintiff is barred from recovery in this case for the reason that the bill of particulars was such that a recovery could not be had under the evidence in this case. The cases cited to support this contention are of actions that arose in a court of record where formal pleadings are required. This case originated in a justice of the peace court where no formal pleadings are required. The purpose of a bill of particulars is to inform the adverse party what the basis of the suit is,

We are of the opinion that this bill of particulars gave the defendant notice of what he intended to rely upon, namely: That he was suing for the value of a rug, and it could have been made more specific if the defendant’s attorney had called for a more specific bill of particulars before the trial, before the justice of the peace, but this was not done. In the case of Wilcox v. Tetherington, 103 Ill. App. 406, it is stated: “It is the settled construction of our statute relating to proceedings before justices of the peace that no written pleadings are required. The allegations and counter-allegations of the parties or their attorneys are all presumed to be ore temos and their rights depend upon what is proved, rather than upon what is said or pleaded.”

The appellee’s sister-in-law, Sylveria Wiegert, was called as a witness for the appellee to prove the value of the rug in question. This witness testified that she had bought a number of rugs at retail stores and that she knew the values of rugs and that she knew the value of the rug that. Mr. Wiegert had sent to the Davis Cleaning & Dyeing Company, and in her opinion the value of this rug would be $115 new, and would be worth $85 at the time it was delivered to the appellant. There was no other evidence offered by either side to this suit relative to the value of this rug. It is insisted by the appellant that this was not competent evidence to establish-value of the rug. It is not necessary for a person to qualify as an expert on the value of rugs to be able to give an opinion as to the value of an ordinary rug. We think that such things are of such common knowledge that the ordinary housewife could give a fair opinion relative to the value of such rugs. No doubt a different rule prevails when any article has extra value and is of such a nature that the ordinary person would have no knowledge of the kind of such a rug and the value of the same. This case does not come under the rule as laid down in Mauvaisterre Drainage & Levee Dist. v. Wabash Ry. Co., 299 Ill. 299, in which the right of way of the railway company was involved; nor in the Lessig v. American Pneumatic Carpet Cleaning Co., 158 Ill. App. 420 case, in which a rug of extra value was involved, but comes under the rule as laid down in Mayer v. Miller, 213 Ill. App. 279; Sinamaker v. Rose, 62 Ill. App. 118; Gross v. Saratoga Hotel Co., 176 Ill. App. 160.

The trial court properly admitted this evidence. Its probity force was for the jury to determine.

We find no reversible error in this case and the judgment is hereby affirmed.

Affirmed.


author: Mr. Justice Jones

text:
    George H. Riddle, Defendant in Error, v. A. J. Mansager and William Streede, Plaintiffs in Error.
    Gen. No. 8,020.

      Opinion filed August 5, 1929.
    George R. Warner, for plaintiffs in error; D. J. Peffers, of counsel.
    Mighell, Gunsul & Allen, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

Plaintiff was injured in a collision between two automobiles, one of which was operated by plaintiff in error, William Streede, and the other by his codefendant, A. J. Mansager. The collision occurred at the intersection of Bevier Place and North Avenue in a residential section of the City of Aurora, at about 8:30 o’clock p. m. on October 28, 1925. In an action brought by plaintiff, a judgment was rendered in his favor and against the defendants for $5,000. A writ of error is prosecuted to reverse that judgment.

Plaintiff and defendant Streede were employed at a factory in the southwest part of Aurora. Upon finishing their day’s work, they and three other employees got into Streede’s car, upon his invitation, for the purpose of riding to their respective homes. Mansager was employed at another factory. At the time of the accident, Streede’s car was proceeding east on North Avenue and Mansager was driving north on Bevier Place. Streede was driving a Chevrolet touring car with the curtains in place. Mansager’s car was a Ford coupe. Streede’s car entered the intersection first and was at least two-thirds of the way across the intersection when the collision occurred. The testimony tends to show that the car driven by Mansager struck the Streede car at the right rear wheel, spun it around once or twice, and then the Streede car finally turned over at a point east of the intersection. Mansager’s car came to a stop and turned over on its left side at the northeast corner of the intersection. All the occupants of Streede’s car, except the driver, were injured. Plaintiff suffered a fracture of the skull.

There is evidence in the record tending to show that both cars were traveling at a greater rate of speed than 15 miles an hour. There is also evidence that they were traveling under that rate of speed. Plaintiff in his testimony attempted to exonerate Streede, and testified that he was not going fast; that his speed was about 18 miles per hour; that he had no fault to find with the way Streede was driving, and made no objection to it. Mansager testified that Streede’s car was 70 to 75 feet west of the center of the intersection when he first saw it, .and that his own car was then 60 to 65 feet south of the same point; that he was traveling at the rate of about 15 miles per hour and that Streede was traveling 30 to 35 miles per hour.

With the record in this condition on the question of speed, the court instructed the jury that where the speed of an automobile operating through the residence portion of a city exceeds 15 miles per hour, such rate of speed shall be prima facie evidence that the person operating. the same is running at a rate of speed greater than is reasonable and proper having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person. This instruction has been repeatedly condemned, because it is inapplicable to any case in which testimony has been offered denying or tending to deny that the rate of speed exceeded 15 miles per hour through the residence portion of a city, or that the car was being operated at a rate of speed greater than was reasonable and proper having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person. In this case there was testimony offered on behalf of defendants tending to show that they had not operated their respective automobiles in violation of the statute. When that evidence was produced, the prima facie case disappeared and no instruction should have been given as to what constitutes a prima facie casé, or what is its effect. (People v. Pederson, 248 Ill. App. 462; Johnson v. Pendergast, 308 Ill. 255; Grosh v. Acom, 325 Ill. 474 ; People v. Tate, 316 Ill. 52; People v. Sikes, 328 Ill. 64; Beard v. Haskell Park Building Corp., 248 Ill. App. 467; Stomas v. Waskow, 250 Ill. App. 364; Stansfield v. Wood, 231 Ill. App. 586.)

The above authorities make it necessary to reverse the judgment in this case, but inasmuch as the cause may be tried again, we deem it advisable to point out errors in three other instructions. The first instruction referred to was given on behalf of plaintiff; the second was given on behalf of the defendant Man-sager; and the third was given on behalf of the defendant Streede.

The first instruction given on behalf of plaintiff stated that if the jury believed the evidence preponderated in his favor, although but slightly, it would be sufficient for them to find the issues in his favor. The giving of this instruction has not been held to be reversible error, but the courts have condemned the use of the words “although but slightly” and other qualifying words in connection with the words “preponderance” and “proof” when used in instructions. (Teter v. Spooner, 305 Ill. 198; Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.)

One of the principal questions in the case is who had the right of way in the intersection, and oh behalf of defendant Mansager, the court instructed the jury in the language of the statute [Cahill’s St. ch. 95a, [f 34], that motor vehicles traveling upon public highways shall give the right of way to vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left. The statute does not authorize such assertion of the right of way regardless of circumstances, distance, or speed. It was error to give the instruction without proper qualification. (Munns v. Chicago City Ry. Co., 235 Ill. App. 160; Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89.

Defendant Streede tendered an instruction which also quoted the provisions of the statute relating to right of way at intersections, find told the jury that if they believed from the evidence that Streede was operating his automobile with ordinary care and reached and entered the intersection in question before Man-sager reached it, and Streede was driving his automobile with ordinary care as aforesaid, then Mansager was obliged to yield the right of way across the intersection to Streede. The court modified the instruction by striking out the last clause and substituting the words, “it is your duty to consider (take) such facts, if you so find from the evidence, into consideration in determining the issues in such ease.” The instruction as tendered is not a correct statement of the law and even with the modification, it is incorrect. While it is always the duty of the jury to consider the facts in determining the issues, nevertheless, the instruction as tendered and as modified and given is misleading, because it suggests that the driver who first entered the intersection had the right of way. No such rule of law obtains. The driver approaching from the right has the right of way over one approaching from the left, unless the car on the right is sufficiently far away, so that if being driven with due care, it will not reach the intersection until the car from the left can pass. (Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., supra.) Any other interpretation of the statute would encourage racing to the intersection. It is the purpose of the law to give the driver on the right a preference in passing through the intersection and it is the duty of the driver on the left to respect that right in accordance with the rule herein laid down.

A driver on the left owes a duty to the driver on his right to approach an intersection with sufficient care to permit the latter to exercise his right of way. (Johnson v. Duke, 247 Ill. App. 372; Zapf v. Kutten, 229 Ill. App. 406; McCarthy v. Fadin, 236 Ill. App. 300; Fisher v. Johnson, 238 Ill. App. 25.) While the right of way does not relieve the one entitled to it from the duty of exercising due care to avoid injuring another, he may assume that persons approaching the intersection on his left will observe the law and respect his right. (Partridge v. Eberstein, 225 Ill. App. 209; Johnson v. Duke, supra.)

This cause is reversed and remanded.

Reversed cmd remanded.


author: Mr. Justice Boggs

text:
    Reuben H. Stripe, Plaintiff in Error, v. City of Waukegan et al., Defendants in Error.
    Gen. No. 8,042.

      Opinion filed August 12, 1929.
    Geo. W. Field, for plaintiff in error.
    Arthur Bulkley, for defendants in error.
   Mr. Justice Boggs

delivered the opinion of the court.

Plaintiff in error filed a bill in the circuit court of Lake county, on behalf of himself and other taxpayers of the City of Waukegan.

Said bill, as finally amended, alleges that defendant in error City of Waukegan is a municipal corporation organized under the laws of the State, and operating under the General Incorporation Act, Cahill’s St. ch. 32, fí 1 et seq.; that the individuals named as defendants in error were respectively the mayor, commissioners and city treasurer of said city; that on July 13, 1928, the following resolution was adopted by the city council of said city:

“Whereas it is desirable and necessary for the City of Waukegan to have an administration building for the transaction of its business—
“Be it resolved by the council of the City of Waukegan—
“Section 1. That said City shall purchase from Edith T. Higley, Frances L. Higley and Violet E. Johnston for the purpose of a City Hall” certain described real estate, “for One Hundred Thousand ($100,000) Dollars.
‘ ‘ Section 2. That said consideration shall be in cash upon the delivery to it of a warranty deed of the above described premises the sum of Twenty Thousand Eight Hundred ($20,800) Dollars, and assume and agree to pay a trust deed encumbrance now upon said property amounting to Seventy-nine Thousand Two Hundred ($79,200) Dollars; said trust deed indebtedness being evidenced by promissory notes payable on or before fifteen years from this date, with interest at 5% per cent per annum.
“Section 3. That the Mayor and City Clerk be and they are hereby authorized to execute a warrant on the proper funds for the payment of the above mentioned sum of Twenty Thousand Eight Hundred ($20,800) Dollars, and that a warranty deed, subject to the above mentioned encumbrance, be accepted.”

Said bill further alleges that, pursuant to said resolution, a warrant was drawn and said sum of money was paid; that on July 14, the following resolution was adopted:

“Be it resolved by the Council of the City of Waukegan, that the Mayor of said city be, and he is hereby authorized, to execute the agreement attached hereto, and made a part hereof, and the City Clerk is hereby authorized and directed to attest the signature of the Mayor and affix thereto the official seal of the City of Waukegan.” That said last mentioned resolution referred to the resolution adopted on the previous day, as above set forth; that on said July 14, said council adopted a resolution, in and by which the members thereof guaranteed to the grantors of said real estate “ ‘that at no 'time during their incumbency of office shall any portion of the above described premises be used for a fire or police station, and they jointly and severally agree to use all possible means to prevent the future use by the succeeding council of said premises for the purpose of police or fire station.’ . . . That no other action has been taken by said City Council with reference to the purchase of said premises so far as your orator is informed and believes.”

Said bill further alleges that said city has no power to mortgage its real property and cannot assume the payment of a mortgage or trust deed or notes secured thereby; that said mayor and commissioners, in making said payment and in so pledging the credit of said city, had acted without authority of law and in violation of the statutes and of the constitution of the State.

It is further alleged that, unless enjoined, said mayor and commissioners would undertake the payment of the balance on said alleged contract; praying a temporary injunction, etc.

On hearing, said bill was dismissed for want of equity. To reverse said decree, this writ of error is prosecuted. The record contains the certificate of the chancellor that no evidence was offered by either party, and that said hearing was had solely upon said bill.

Section 1 of article V of the statute on cities, villages and towns (Cahill’s St. ch. 24, 65), provides, among other things:

“Section 1. The city council in cities, and the president and the board of trustees in villages, shall have the following powers:
“First. To control the finances and property of the corporation.
“Second. To appropriate money for corporate purposes only, and provide for payment of debts and expenses of the corporation.”
“Eighty-sixth. To provide for the erection and care of all public buildings necessary for the use of the city or village.”

Counsel for defendants in error states in his brief and argument:

“Virtually there is but one proposition of law brought before the court by the record in this case, viz.: Has a city, organized under the Cities and Villages Act of Illinois, the power to purchase property for a city hall, subject to a mortgage payable on or before a given date?”

He further states, after referring to the various provisions of the Cities and Villages Act, that: ‘1 There is not in these statutes one word or line either expressly giving or denying the power to mortgage or to buy subject to mortgage.”

The question, then, for our determination is whether, under the statute, as construed by our Supreme and Appellate Courts, a city has such authority.

Statutes granting powers to municipal corporations are strictly construed. City of Chicago v. M. & M. Hotel Co., 248 Ill. 264-272. Municipal bodies can only exercise such powers as are conferred upon them by their charters. Merchants Loan & Trust Co. v. City of Chicago, 264 Ill. 76-82. Any fair and reasonable doubt as to the existence of the power is resolved against the municipality claiming the right to exercise it. City of Chicago v. M. & M. Hotel Co., supra, 272; Seeger v. Mueller, 133 Ill. 86.

“The powers of a municipal corporation are not enlarged by liberal construction but are strictly construed, and any ambiguity arising out of a grant of power or a reasonable doubt concerning its existence is resolved against the municipality which claims to exercise the power.” Washburn v. Forest Preserve Dist., 327 Ill. 479-487, citing Barnard v. City of Chicago, 316 Ill. 519; City of Rockford v. Nolan, 316 Ill. 60; Aberdeen- Franklin Coal Co. v. City of Chicago, 315 Ill. 99; Arms v. City of Chicago, 314 Ill. 316.

In Coquard v. Village of Oquawka, 192 Ill. 355, the court at page 365 says:

“This court, as well as the Supreme Court of the United States, has quoted with approval the rule laid down by Judge Dillon in his work on Municipal Corporations, that ‘a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. (Cook County v. McCrea, 93 Ill. 236; Huesing v. City of Rock Island, 128 id. 465; Merrill v. Monticello, 138 U. S. 673.)’ ”

Where a municipal corporation has no power to mortgage its property, it cannot purchase and hold property which is subject to a mortgage, even though it does not expressly obligate itself to pay the mortgage debt, for it must pay the debt or lose the property. 43 Corpus Juris, p. 1330, sec. 2088.

A municipal corporation having no power to incumber its property by mortgage, in the absence of express legislative authority, is without power to acquire and hold property which is subject to mortgage. Fidelity Trust & Guarantee Co. v. Fowler Water Co., 113 Fed. 560.

“Being created for governmental purposes, the borrowing of money, the purchase of property on time and the giving of commercial paper are not inherent or even powers usually conferred, and unless endowed with such power in their charters they have no authority to make and place on the market such paper, and persons dealing in it must see that the power exists.” Hewitt v. Board of Education Normal School Dist., 94 Ill. 528-532, citing Board of Supervisors v. Farwell, 25 Ill. 181; Clarke v. Board of Sup’rs of Hancock County, 27 Ill. 305; Marshall County Sup’rs v. Cook, 38 Ill. 44; Wiley v. Silliman, 62 Ill. 170; Harding v. Rockford, R. I. & St. L. R. Co., 65 Ill. 90; McWhorter v. People, 65 Ill. 290; Town of Big Grove v. Wells, 65 Ill. 263.

In Merchants Loan & Trust Co. v. City of Chicago, supra, the court at page 82 says:

“While the question of implied power of municipal corporations in this State to borrow money for corporate purposes does not appear to have directly arisen, it has been incidentally discussed in decisions involving cognate questions. The law is, that municipal bodies can only exercise such powers as are conferred upon them by-their charters, and all persons dealing with them must see that they have the -power to perform the proposed act. The power to borrow money and create indebtedness is not an incident of such local government. Such power cannot be exercised unless it is conferred by charter. (Law v. People, 87 Ill. 385; Coquard v. Village of Oquawka, 192 id. 355; 1 Dillon on Mun. Corp.— 5th ed.—sec. 287, and cases cited.) ”

In Bourdeaux v. Coquard, 47 Ill. App. 254, the court, after quoting from Hewitt v. Board of Education Normal School Dist., supra, at page 258, says:

1‘ The power to receive and pay out moneys does not include the power to issue interest-bearing commercial paper; nor does it include the power to purchase property where no money is on hand to pay for the same.”

Under the foregoing authorities, it follows that said mayor and city council were without power or authority to purchase the premises in question subject to said mortgage indebtedness.

Counsel for defendants in error cites and relies on 3 Dillon—5th ed.—sec. 696, page 1591; 43 Corpus Juris, sec. 2109; Baltimore & O. S. W. R. Co. v. People ex rel Gaston, 200 Ill. 541, as supporting his contention that said city had the implied authority to purchase the property in question subject to said mortgage. An examination of these authorities will disclose that they do not support said contention.

It is next contended that it is not sufficiently alleged in said bill that no appropriation had been made by said city to cover said contract, for the reason that said allegation is on information and belief. Said allegation, though not as specific as it might have been, is sufficient, the bill not having been demurred to. In Coryell v. Klehm, 157 Ill. 462, relied on by defendant in error, the court at page 476 says:

“Where the allegations are made in the form of direct and positive statements of facts, with the additional words, ‘as your oratrix is informed and believes, ’ it would seem that there is more than a simple averment of the complainant’s confidence in the truth of these representations, and they may be regarded as averments of the facts together with a statement of the source from which knowledge of those facts was derived. (Lucas v. Oliver, 34 Ala. 626.) We are inclined to limit, rather than either extend or strictly adhere to, the technical rules of pleading, and especially so in the absence of a special demurrer.” Without an appropriation to cover an expenditure of the character here involved, a contract entered into by a city cannot be enforced. Trustees of Lockport v. Gaylord, 61 Ill. 278; May v. City of Chicago, 222 Ill. 592-599; DeKam v. City of Streator, 316 Ill. 123-131; Ferry v. National Motor Underwriters, 244 Ill. App. 241; City of Harvard v. McCauley, 253 Ill. App. 218.

Counsel for plaintiff in error also contend that the contract in question was illegal for the reason that it was for an amount in excess of $500, and was not let upon competitive bidding. This point is not well taken, as the statute referred to has no application to a purchase of this character.

For the reasons above set forth, the decree of the trial court will be reversed and the cause will be remanded, for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


text:
    Chicago National Life Insurance Company, Appellant, v. Elmer Carbaugh, Appellee.
    Gen. No. 8,066.
    Opinion filed August 12, 1929.
    Lee D. Mathias and Karl Mohr, for appellant.
    Hall & Dusher, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellant prosecutes this appeal to reverse a decree of the circuit court of Winnebago county, dismissing for want of equity a bill for the cancellation of a certain policy of insurance issued to one Bessie V. Carbaugh.

Said bill alleges that on, November 7, 1927, the insured made application in writing for a policy of $1,000 in appellant company; that certain of the material statements contained in said application were untrue and were fraudulently made; that appellant company did not know that any of said statements or representations were false and untrue until after the death of said insured, which occurred on May 16, 1928; that, upon the death of said insured, appellant caused an investigation to be made as to the cause of death and ’“from such investigation it is informed and believes and charges the fact to be that divers of the material representations contained in said application are false, untrue and fraudulent, and that said, insured knew the same to be false, untrue and fraudulent at the time they were made; that, had appellant known of such untrue and fraudulent statements, it would not have issued said policy.” After a detailed statement as to the representations in said application, alleged to be material, and which are alleged to be untrue, false and fraudulent, it is averred that “there is no express limit of time in accordance with the terms of said policy within which the beneficiary may bring suit upon said policy; that, on the contrary, under the provisions of the first paragraph on page three of said policy, it is provided as follows:

“ ‘This policy is free from restriction as to occupation, residence or travel, and shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from date of issue, except for nonpayment of premiums. ’ ’ ’

Said bill further charges that no administrator had been appointed for the estate of said insured; that appellant had been ready, able and willing to return the premium of $6 paid in by said deceased, together with interest thereon, amounting to thirty cents, and rendered the same in court; that no action had been brought by the beneficiary to recover on said policy; that appellant “is barred after one year from the date of said policy from contesting the same, except for non-payment of premiums.” That a rider was attached to the face of said policy for the payment of an emergency sight draft; that after the death of said deceased, and before the discovery by appellant of said alleged false and fraudulent statements, appellee, the beneficiary under said policy, drew a sight draft on appellant for $100, which was paid.

The prayer of said bill is that said policy may be declared null and void, and that said beneficiary be decreed to return to appellant said sum of $100, so paid as aforesaid.

To said bill, appellee filed a demurrer. Said demurrer was sustained, and said bill was dismissed for want of equity, as above set forth. There is no question with reference to the sufficiency of the allegations in the bill charging fraud in the procuring of said policy. The only' question for our determination is as to whether appellant was entitled to have determined on said bill the validity of said policy.

Provisions in policies of insurance, making the same incontestable after a stated period of time, are valid and enforceable. Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136-140; Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592-595; Joseph v. New York Life Ins. Co., 308 Ill. 93; Powell v. Mutual Life Ins. Co. of New York, 313 Ill. 161-164. The question here is as to whether, the insured having died within one year from the issuance of said policy, the incontestable clause means that in order to make said limitation effective, the insured must have lived one year after the date of said policy, as contended by appellee, or whether said provision' limits the contesting of said policy to one year from its date, as contended by appellant.

It is insisted by counsel for appellant that the language in question is ambiguous; that, where the language of an insurance policy is ambiguous or uncertain, that construction shall be given which is most favorable to the insured; and that the most favorable construction in this case is that said provision requires that, if a contest is to be made, it must be made within one year from the date of the policy.

The language of the incontestable clause here involved does not warrant the construction contended for by appellant.

Subparagraph 3 of section 1 of the act relating to the transaction of the business of life insurance in this State, etc., Laws of 1921, page 482 (Cahill’s St. eh. 73, II 375), among other things provides that any policy of insurance issued under the provisions of said act “shall be incontestable after it shall have been in force, during the lifetime of the insured, for two years from its date, except for non-payment of premiums.”

The provision in the policy here involved is in keeping with the requirements of the statute, other than that the statute provides that such incontestable clause must limit the time to two years. It is not ambiguous, and it clearly discloses that, before the incontestable clause shall take effect, limiting the right of appellant to contest its liability under said policy, the policy must have been in force for one year during the life of the insured. Inasmuch as said policy was not so in force for the period of one year during the lifetime of the insured, appellant may make its defense in a court of law, should suit be brought, at any time hereafter, to recover on said policy. Des Moines Life Ins. Co. v. Seifert, 210 Ill. 157-158, citing Douglass v. Martin, 103 Ill. 25; Gore v. Kramer, 117 Ill. 176-182; Black v. Miller, 173 Ill. 489; Vannatta v. Lindley, 198 Ill. 40.

The construction we are placing on the language here involved is not in conflict with the decisions in Monahan v. Metropolitan Life Ins. Co., supra; Ramsey v. Old Colony Life Ins. Co., supra; Joseph v. New York Life Ins. Co., supra, and Powell v. Mutual Life Ins. Co. of New York, supra. The incontestable clauses involved in each and all of said cases were contained in policies issued prior to the amendment of 1921, above quoted. When the statute was originally passed (Laws 1907, p. 367),'providing that all life insurance policies issued under it should contain an incontestable clause, it did not contain the language “during the lifetime of the insured.” That language was added in the amendment of 1921. In order to give meaning to said amendment and to the words added thereby, it is necessary to hold that the policy involved must have been in force for the specified period, prior to the death of the insured, before said limitation takes effect.

For the reasons above set forth, the decree of the trial court will be affirmed.

Decree affirmed.


author: Mr. Justice Jett

text:
    J. S. Clark et al., Appellees, v. City of Belvidere, Appellant.
    Gen. No. 8,050.
    Opinion filed August 12, 1929.
    James M. Huff, City Attorney, for appellant.

      Wm. Biester and Alexander J. Strom, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.

This was a bill filed by J. S. Clark, S. B. Jarvis, J. B. Balliet, Anna B. King, W. L. Wyman, C. H. Turner,' Andrew Crawford, Millard F. Duryea and A. S. and S. J. Shackell, appellees, to compel the City of Belvidere, appellant, to refund to each complainant a certain sum of money due them respectively as a rebate arising by reason of assessment reductions made by the county and Supreme Courts.

To the bill of complaint a demurrer was interposed, which was overruled and this appeal followed. Appellees will be referred to as complainants and appellant as defendant. It is alleged by the complainants, that they are the owners of real estate fronting on either South State Street or Logan Avenue in the City of Belvidere, in the State of Illinois, which was assessed: “In the matter of the petition of the city of Belvidere, Illinois, for a special tax to make the cost of the improvement of the roadway of South State Street from the southerly line of 7th Street to Logan Avenue, and in Logan Avenue from State Street to Prospect Street as provided in ordinance number 223 D. as passed by the city council of said city on the third day of May, 1926 ’ ’; that after the construction óf said improvement the Board of Local Improvements filed its certificate of cost and completion of said improvement; that fifty-seven property owners objected thereto; that at a hearing the county court reduced the assessment and ordered a new assessment made, which was accordingly done. That thirty-eight of said objectors appealed from said order to the Supreme Court of Illinois, “where said cause was remanded to the County Court and ordered said County Court to make a further reduction of said assessment in the amount of $15,225.62 which in said cause being redocketed in the County Court was accordingly done and a new assessment roll made reducing said assessment to $71,938.26 and leaving in all a rebate of $15,225.62; that your complainants each paid the assessment as fixed by the said second assessment roll and that of each rebate above set forth, each of your complainants are entitled respectively as follows:

S. R. Jarvis................................$25.37

J. R. Balliet................................. 34.80

J. S. Clark.................................. 53.15

Anna R. King............................... 53.15

W. L. Wyman........................... 49.06

C. H. Turner................................ 62.40

Andrew Crawford........................... 67.60

Millard F. Duryea........................... 53.15

A. S. and S. J. Shackell...................... 55.89

The complainants further alleged that demand had been made on Harry M. Perkins, mayor, and upon Arthur S. Gilbertson, as city clerk, for the issuing of the necessary warrants for the payment of your complainants of the respective amounts due each of them respectively above set forth and to provide for the payment of and to pay to each of your complainants the respective amounts as above set forth, but each of them refused to issue such warrants and refused to provide for and pay the above respective amounts to each of your complainants.

Complainants further represented that after the passage of the ordinance for said improvement and before the construction thereof, the said Board of Local Improvements or some of its officers without any warrant or authority of law, and entirely contrary to law, hired a large force of men and purchased material and laid some lead pipes several feet' under ground in said streets, so as to conduct water from old iron water mains in said street to the edges of said street; that the total Cost of such construction as claimed by said board and said city was $4,879.75, and that some of the officers of said city ever since such lead pipe construction work have endeavored to arbitrarily fix the amount without any accounting of any sort as to what each of your complainants should pay towards such lead pipe construction work and said city now refuses to pay the above amounts of rebates to your complainants, respectively, unless the said city is arbitrarily allowed to deduct an amount nowhere designated or specified, but to be set by the said city for such lead pipe construction; that the construction of such lead pipe work was not provided for in the ordinance for said improvement, but that said city has arbitrarily sought to charge your complainants and others for such lead pipe construction work as a part. of the cost of said improvement and the said Supreme Court in its decision decided and determined that neither your complainants nor any other of the property owners nor their property was chargeable for any part of such lead pipe construction work.

The complainants also charged that on September 17,1928, the city council of said city adopted a motion that none of the complainants should be allowed any of said rebates unless they would allow the city to deduct an arbitrary amount not fixed or determined for such lead pipe construction. Bill makes City of Belvidere and Harry M. Perkins, as mayor, and Arthur S. Gilbertson, as city clerk, parties defendant, prays for answer, but not under oath; that the said city may be decreed to pay complainants the respective amounts due them and that such decree have the same force and effect of a judgment at law in favor of each of the complainants and that said Harry M. Perkins, as mayor, and Arthur S. Gilbertson, as city clerk, and their successors in office may be decreed to issue the usual warrants in favor of complainants for the respective amounts due each of them as above set forth and that the complainants may have such other relief as equity may require.

The causes of demurrer are (1) that said bill of complaint does not state or set forth a cause of action cognizable in a court of equity; (2) that said bill discloses on its face that each of said complainants has an adequate remedy at law.

The demurrer admitted everything that was well pleaded. It will be observed that this is a suit by a number of property owners abutting a local improvement in the City of Belvidere, who filed a bill in chancery to compel the city to refund to each complainant a certain sum of money due them respectively as a rebate arising through assessment reductions made by the county and Supreme Court. Resort to equity is on the ground, solely, that it will prevent a multiplicity of suits. The defendant urges that equity is not the proper forum as the complainants each havé an adequate remedy at law. This is the sole question in the case. . The defendant concedes that the only question involved in this proceeding is, can several property owners who claim to be entitled to a rebate from an assessment, made in a local improvement, join in a bill in equity for its recovery or should they bring an action at law?

Complainants and the defendant have cited numerous authorities in support of their respective contentions. It appears to us that the rule involved in this cause has been definitely settled and determined in German Alliance Ins. Co. v. Van Cleave, 191 Ill. 410. In this cause forty-two insurance companies were entitled to a refund of a tax of 2 per cent paid by them under protest. The claims were separate but arose out of the same situation. In its decision at page 413 the court among other things said: “It is next insisted that the decree is right because each of the complainants has an adequate remedy at law, by a suit against the insurance superintendent to recover the amount wrongfully collected from it. At least forty-two suits would be necessary to .accomplish the purpose and to give to each complainant its legal remedy, and the question involved in each case would be exactly the same. While the demand is separate in each case, the rights of the parties depend upon the same facts. Complete relief may be furnished by a decree determining the single question applicable to all and in which all are interested. The case is a proper one for an application of equitable powers. ’ ’

In the case at bar the claims are separate and in each case the rights of the parties depend upon the same facts. Abbott v. Loving, 303 Ill. 154, is a case in which a bill in chancery was filed and to which a demurrer was interposed on the ground that the bill was multifarious. The demurrer was overruled and in its opinion, at page 162, the court among other things said, “that the modern tendency of the courts is to relax the rigid rules of pleading and to hold that a bill is not multifarious where causes set forth in the bill may more conveniently be tried in a single suit, where it will avoid a multiplicity of suits, and where the relief sought in each cause is of the same general character and no unreasonable hardship will be caused the parties against whom the relief is asked.”

We conclude, therefore, that the action of the chancellor in overruling the demurrer was correct, and the decree of the circuit court of Boone county will be affirmed.

Decree affirmed.


text:
    Elmer Swanson, Appellee, v. G. Willrett, Appellant.
    Gen. No. 8,064.
    Opinion filed August 12, 1929.
    John A. Dowdall and Julius E. Matteson, for appellant; Thomas M. Cliffe, of counsel.
    H. W. Prentice and A. G. Kennedy, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was originally brought before a justice of the peace, and judgment was entered in favor of Elmer Swanson, the plaintiff, and against Gr. Willrett, the defendant, by default for $300.

An appeal was taken to the. circuit court where a jury was waived, and a trial had before the court. A judgment for $293.11, was entered against the defendant. The defendant appellant here, prosecutes this appeal. The plaintiff, Elmer Swanson, appellee here, was engaged in the livery and feed business in the City of De Kalb during the years of 1917-1920, inclusive. The defendant is a farmer and bought horses for shipment for a number of years prior to March 1, 1919. The claim of the plaintiff is evidenced by a book account which contains charges by the plaintiff against the defendant. Many of the charges shown on the account were made more than 5 years prior to the beginning of the suit. The chief question involved is, whether or not the statute was tolled so as to remove the bar against the action.

There were two outstanding contentions in the trial of the case: the first being a claim of the defendant that he had no business relations with the plaintiff subsequent to March 1, 1919; the second, that the statute of limitations had run as to all of plaintiff’s accounts up to and including the first sixteen charges of the plaintiff against the defendant, which amounted to $219.40.

The plaintiff sought to avoid the bar of the statute of limitations by reason of an alleged conversation he had with the defendant, in which the defendant used certain language that amounted to a promise to pay. The defendant denies that he had the alleged conversation with the plaintiff. The defendant insists that the plaintiff failed to prove the conversation by the weight of the testimony, and even though the language was used as claimed by the plaintiff, it is not sufficient to remove the bar of the statute of limitations. The conversation relied upon by the plaintiff to toll the running of the statute was had as claimed by plaintiff in the spring of 1922 or 1923, at the hotel in De Kalb, Illinois, and is contained in the following sentence: “He said he would be down and see me that night, that is all he said, ‘I will be down to see you this evening and take care of it this evening.’ ” On cross-examination, plaintiff was asked to state the conversation, and he endeavored to do so, but made no mention of defendant’s having said that he would, “take care of it.” The language used, and here relied upon by the plaintiff to support his contention of a new promise, is very meager. The promise to pay the debt, in order to avoid the bar of the statute, must rise out of such facts as identify the debt with such certainty as will clearly determine its character. Waldron v. Alexander, 136 Ill. 550-551.

An unqualified promise to pay the debt has by all of the decisions been held sufficient to take the case out of the statute. Mellick v. DeSeelhorst, Breese 221.

The promise to pay must be absolute and unqualified and is not to be ascertained by implication or presumption beyond the express consideration of the promise. Kimmel v. Schwartz, Breese 278.

' In Keener v. Crull, 19 Ill. 189, a witness testified that a testator, whose estate was sought to be charged, said that he had agreed to give his. daughter, one of the plaintiffs, $200 per year for her work and he had not paid her yet, and that she had gone to Ohio. On this language the court said: “The amount of the debt was not named or in any manner indicated, rior was there any language unequivocally importing a present intention or undertaking to pay.”

On the hearing of the case at bar there was no attempt to testify by the plaintiff to the amount of the debt and no effort to prove any statement by the plaintiff to the defendant at the time of the alleged promise that it was due and unpaid. In Keener v. Crull, supra, the court further said: “The new promise may arise -out of facts such as identify the debt, the subject of the promise, with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it, at the time acted upon and acceded to by the creditor, the promisee.”

In Carroll v. Forsyth, 69 Ill. 127, the court uses this language: “To remove the bar of the statute of limitations, it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay; it must be of such a character as to clearly show a recognition of the debt and an intention to pay it.”

In Wachter v. Albee, 80 Ill. 47, at page 51, the court said: “When, however, a party permits a debt to run, making no effort to collect it until the statute of limitation can be pleaded in bar of the action, he is in no position to call upon the court-to aid him upon slight proof; on the contrary, the evidence ought to be clear and satisfactory to overcome the bar of the statute.” We have examined the authorities relied upon by the plaintiff and a number of other cases and we are of the opinion that the evidence offered on the part of the plaintiff falls short of coming up to the standard as. required by the rule.

We believe that the proof of the new promise is too indefinite and uncertain to raise a bar of the statute of limitations. We know of no case where a court of review has ever held that such language as appears in this record was sufficient to constitute a new promise. We are therefore of the opinion that the judgment of the circuit court of De Kalb county should be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois for use of Dime Savings & Trust Company, Conservator of the Estate of Katie R. Birket, Insane, Appellee, v. Arthur T. Birket, Sr. et al. Detroit Fidelity & Surety Company, of Detroit, Michigan, Appellant.
    Gen. No. 8,046.

      Opinion filed August 15, 1929.

      George W. Hunt and J. Edward Radley, for appellant.
    Hunter, Kavanagh & McLaughlin, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an appeal by the Detroit Fidelity & Surety Company from a judgment entered in the circuit court of Peoria county, for damages in the sum of $7,500, in an action of debt upon the bond of Arthur T. Birket, Sr., as conservator of Katie it. Birket, insane, and signed by the appellant, Detroit Fidelity & Surety Company of Detroit, Michigan, as surety on said bond. The Dime Savings & Trust Company, a corporation, was appointed conservator, successor to Arthur T. Birket, Sr., who was removed by the order of the probate court of Peoria county, on February 2, 1927. The suit is instituted in the name of the People of the State of Illinois, for the use of the estate of Katie B. Birket, insane.

The declaration is in debt for the face value of the bond, to wit, $7,500, and charges that Arthur T. Birket, Sr., was appointed and qualified as the conservator of Katie B. Birket, insane, on February 27, 1902; that thereafter at the December term of said court, 1924, his original bondsman, or surety, withdrew as such surety and a new bond was executed and approved by the probate court of Peoria county on the 23rd day of December, 1924, wherein Arthur T. Birket, Sr., was principal and the Detroit Fidelity & Surety Company was surety, which bond was in the penal sum of $7,500, dated November 24, 1924, conditioned that Arthur T. Birket, Sr., should faithfully discharge the office and trust of such conservator according to law, and should make a true inventory of all the real and personal estate of the said ward that should come to his possession or knowledge and file the same with the probate court of Peoria county, at the time required by law and manage and dispose of all of said estate according to law, and for the best interest of said ward, and faithfully discharge his trust in relation thereto, and to the custody of Katie R. Birket, and render an account on oath of the property in his hands, including the proceeds of all real estate that might be sold by him, for, in and by, the management and disposition of all said estate within one year after the execution of said bond, and at such other times as should be required by law or directed by the court, and upon removal from office, the restoration of said ward, or at the expiration of his trust, settle his account in said court, or with the ward, as the case might be, and pay over and deliver all the estate, title, papers and effects remaining in his hands, or due from him on such settlement, to the person or persons lawfully entitled thereto, then said bond should be void, otherwise to remain in full force and virtue.

It is then averred that Arthur T. Birket, Sr., continued in said office until February 2,1927, when he was removed by the probate court of Peoria county, and the appellee, Dime Savings & Trust Company, appointed his successor; 'that Arthur T. Birket, Sr., did not faithfully discharge said office according to law, but neglected and refused so to do, to the injury of the plaintiff.

In the declaration four breaches are assigned: (1) Arthur T. Birket, Sr., did not render true and correct accounts of his acts and doings to the probate court aforesaid; (2) he did not, as ordered and directed by the court, settle his accounts in said court, upon his removal as such conservator; (3) he wholly failed, neglected and refused to pay over the money and property of said ward in his hands, due from him on such settlement, to the plaintiff, as his successor in trust; and (4) that after his said qualification under his bond, dated November 20, 1924, divers rents accruing from the real estate of the said Katie R. Birket, amounting to a considerable sum of money, to wit, $7,500, came to the hands of the said Arthur T. Birket, Sr., as such conservator prior to the date of his removal, to wit, February 2, 1927, yet the said Arthur T. Birket, Sr., not regarding his duty as such conservator during that time, converted and disposed of said rents to his own use, and has neglected and refused, and still neglects and refuses to pay over to the plaintiff the amount of said rents.

The declaration then concludes by charging damages ‘in the sum of $8,000, by reason of the four respective breaches assigned.

The appellant, the said Detroit Fidelity & Surety Company, craved oyer of the bond, which was produced, and for a plea set the bond and all of its conditions out in hdec verba, and there averred that at the time of its approval on December 23, 1924, by the judge of the probate court of said county, a current report of Arthur T. Birket, Sr., was and had been on file in said, court since February 27 prior thereto, and was at the time of the approval of the bond in question, unadjudicated, and showed a balance for the year ending February 27, 1923, of $1,583, to be cash on hand; that said conservator made no accounting to the probate court of Peoria county since February, 1924, prior to the execution of the bond in question; that at the time the bond in question was executed, there was in fact no money or cash or checks or the equivalent of money, in the hands of said conservator, but that all receipts of money as rents or otherwise which came to the hands of Arthur T. Birket, Sr., prior to the execution of said bond on the 20th day of November, 1924, had been disbursed, paid out or used by said conservator for. his own use as charged in said declaration, by reason whereof, on the said date of the execution of said bond, there was no money or the equivalent of money in the hands of said conservator; that by reason of one of the conditions of said bond, said Surety Company is not liable in any form for any acts of said conservator prior to November 20, 1924, for failure of said conservator to account for the moneys or property coming into his hands belonging to said estate, prior to November 20, 1924, which were not in the hands of said conservator on said date, or came into his hands subsequent thereto, and prior to the bringing of this suit. The plea closes with the usual verification.

A jury was waived and the cause was heard by the court upon a stipulation of facts. Judgment was rendered against appellant, not only for moneys received by the conservator since the filing of the new bond, but also moneys chargeable to him prior to the filing of said bond. It is this ruling of the court of which complaint is made. It is claimed by the appellant Surety Company that it is not liable for any money except that received by the conservator after November 20, 1924.

It is insisted the court erred in holding that the appellant, under the bond in question, was liable for the sum of $4,371.59, used by Birket prior to November 20,1924, and in holding the proposition of law submitted by appellee in this respect to be controlling and in refusing to hold the proposition of law tendered by the appellant on this question.

At the time the bond in question was executed and accepted there was on file, but unapproved in the office of the clerk of the probate court, Birket’s annual report as conservator, dated February 27,1924, and purporting to be a report for the year of February 27, 1923, to February 27, 1924. In said report Birket charges himself with carrying forward from his previous report a balance of $1,583, and as having on hand, on the date of said report, to wit, February 27, 1924, the sum of $3,952.31.

The stipulation on which this cause was tried shows that on the date of the filing of the report, Birket did not have this money “in a separate account as conservator of said estate but had theretofore used it for his own use, all of which was unknown to the Detroit Fidelity & Surety Company, of Detroit, Michigan, unless they were bound to know the same before the execution and delivery of the bond in question; that for the purpose of this litigation it is agreed by and between the parties hereto, that the receipts from November 20, 1924, to February 27, 1925, shall be considered as equal to one-third of the annual receipts, or $533.33.” It cannot be denied that although Birket had used this money, he recognized his obligation to the estate by charging himself therewith in the report filed February 27, 1924. We are not unmindful of the fact that it is the contention of appellant, that by having used this money for his own purposes, although admitting his liability, therefore the surety, by reason of the peculiar phrase inserted in the bond, is not bound as surety for a true accounting by the principal of those funds. Although he had used the funds prior to the date of the execution of the bond for his own purpose, he was not in default; he had filed an account charging himself therewith; he admitted he owed that sum to the estate of his ward; an accounting and settlement had not been required of him at the time of the taking of a new bond, nor for a long time prior thereto. At any time prior to the time he should be called upon to make settlement, he could have replaced the money in the account of his ward, which he had theretofore used and would never have been in default. A new bond having been given without requiring an accounting, he, in all probability, would not make another report until the date of his regular annual report would come due, that would be February 27,1925, three months after the execution of the bond on which the appellant is surety.

If, at the date last mentioned, February 27, 1925, he had been compelled to make a settlement of his account, and was unable to produce the money due to his ward, then, for the first time, would he have been in default, but a conservator is not in default until a demand is made upon him and he fails or is unable to comply with the demand.

At common law, a conservator, guardian, or administrator was permitted to use the funds of his ward or of the estate for his own purposes, being bound only to make a faithful accounting when an accounting became due. Cooley’s Blackstone, Second Revised Edition, 1879, Vol. 1, Book 2, chapter 5, page 371.

The obligation of a conservator or guardian to keep the funds of his ward in a separate account and at interest is one created by statute.

The section defining embezzlement by a conservator reads as follows: “Whoever, being the administrator of the estate of a decedent, or the executor of a last will, or guardian of any minor, conservator of any idiot, distracted person, drunkard, spendthrift or insane person, or trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, choses in action, or other property which may have come into his hands by virtue of his office, duty or trust, shall be deemed guilty of larceny.” Cahill’s St. ch. 38, ¶ 194; Smith-Hurd Ill. Rev. Stat., ch. 38, ¶ 216.

The Criminal Code creating and defining the crime of embezzlement, is divided into numerous sections, each of which defines what acts of certain persons, classes of persons, or officials shall constitute the crime. The general sections of the Embezzlement Act do not require a demand, before a wrongful use may constitute embezzlement,, but the section of the statute referring to embezzlement by conservators, specifically defines embezzlement as a failure “when legally required by the proper person or authority, to account for or pay over.” There are analogous holdings in other classes of cases that appear to be suggestive of what the rule should be, in view of the state of the record, in this cause.

In School Trustees v. Arnold, 58 Ill. App. 103, the court held that where a public officer succeeds himself in office, his bondsmen on his second bond are liable for the amount on hand at the termination of his first term, and that the obligation of the first bond is not prolonged by a re-election of the principal to office.

In Doll v. People, 145 Ill. 253, it was held that where a county treasurer, on going into office, charges himself with a sum of money upon his books, as received from his'predecessor, and reports the receipt thereof to the county board, both he and his sureties, when sued on his bond, will thereby be precluded from denying that fact and from showing that such sum was not paid to and received by him from his predecessor, and that the rule is the same whether the officer is his own successor or succeeds another.

In Morley v. Town of Metamora, 78 Ill. 394, and in Cawley v. People, 95. Ill. 249, the court held that if a public officer is his own successor, the sureties on his bond for his second term are liable for funds he reports as in his hands at the expiration of his first term.

Where an officer is re-elected and becomes his ovm successor, and at the commencement of his second term, reports a certain sum in his hands, and gives bond with sureties to account for and pay over the moneys coming to his hands during the term, his securities, when sued, will be responsible for the sum so reported in his. hands and will not be allowed to show the defalcation in fact occurred during the previous term. Swisher v. Fidelity & Deposit Co. of Maryland, 164 Ill. App. 243-247; Roper v. Sangamon Lodge, 91 Ill. 518; Cowden v. School Trustees, 235 Ill. 604; Town of Cicero v. Grisko, 240 Ill. 220; School Trustees v. Cowden, 240 Ill. 39; Town of Cicero v. Hall, 240 Ill. 160; Ladd v. Board of Trustees, 80 Ill. 233.

Furthermore, the statute provides a method whereby a surety on a new bond of a conservator may be protected against liability for acts of the conservator prior to the giving of the new bond.

Paragraph 18 of chapter 103, Cahill’s St., SmithHurd’s Rev. Stat., ch. 103, ¶ 18, provides: “That, whenever any surety on the bond of any guardian, conservator of any idiot or insane person, or the trustee of any fund or property appointed by any court, or the heir, executor or administrator of such surety, desires to be released from any further liability upon any such bond, he may petition the court in which said bond is filed, for that purpose, and upon notice being given to such guardian, conservator or trustee in such manner as the court may direct, the court shall compel such guardian, conservator or trustee, within a reasonable time to be fixed by the court, to appear and settle his accounts and file in such court a new bond with such penalty and security as may be approved by the court, which being done, the surety may be discharged from all liability on such bond.”

This section of the statute is for the benefit, not only of the ward, but for the purpose of releasing the old sureties on a former bond and it, as well, protects the new sureties on the new bond being given, for at the time of a complete accounting, the surety is informed exactly of the assets on hand for which he at once assumes liability. It appears that the appellant did not see fit to take "the method provided by statute, but instead thereof relied upon the last account filed by Birket of his acts and doings on February 27, 1924.

Appellant speaks of Birket’s converting the funds of his ward, prior to the date of the execution of the bond. It will be remembered that this cause was submitted upon a stipulation of facts, and the stipulation does not show that Birket converted the money, but that it uses the following language: “The said sum shown as cash balance ‘carried forward’ and ‘balance due’ as well as balance due and on hand November 20, 1924, were not held by said Arthur T. Birket, Sr., in a separate account as conservator of said estate, but had theretofore been used -by him for his own use. ’ ’

Appellant is not in a position to insist that Birket was guilty of conversion prior to November 20, 1924, for the reason that he could not be said to have been a defaulter from anything shown in the record prior to the time of the filing of the bond by appellant.

It is also insisted that the court erred in holding that the appellant, under the bond in question, was liable for the sum of $1,375.20, as interest on annual balances, and in holding the proposition of law submitted in this respect to be controlling of the issues as to this item of damage.

Relative to the question of interest, the stipulation on which the case was tried among other things contains the following: “It is further stipulated and agreed that said schedules do not show a charge of interest on annual balances, which is to be considered by the Court and if found to be a proper charge against the defendant, Detroit Fidelity and Surety Company of Detroit, Michigan, then such annual balances, as the court may find due, shall bear interest at the rate of 5% from the date of such annual balances to the date of entering judgment herein.”

Paragraph 18, chapter 86, Cahill’s St.; Smith-Hurd Rev. Stat., ch. 86, ¶ 18, provides not only that a conservator shall keep his ward’s money at interest but that: “The conservator shall be chargeable with interest upon any money which he shall wrongfully or negligently allow to remain in his hands uninvested, after the same might have been invested.”

Hough v. Harvey, 71 Ill. 72, is a case where an executor was charged with interest. In its opinion at page 77 the court said: “There is no pretense that appellant (an executor) put the money out upon interest and received that rate, or that it was put to use in trade or investment of appellant. By the terms of the will, appellant was authorized to sell any real estate belonging to the testator at his death, and invest the proceeds for the benefit of devisees, and, by statute, he was required to render annual accounts to the county court. He rendered none after 1863, and failed to invest the proceeds of the sale of land. Under these circumstances, he was chargeable with interest at the legal rate, simple or compound.”

In Schouler on Wills, Executors and Administrators (5th Ed.), vol. 2, sec. 1538, the author says: “Chancery and probate courts in modern practice will compel executor or administrator to charge himself in his account, with interest and in gross instances with compound interest, where he has abused his trust . . . In other words, all profits made with trust moneys belong to the trust; and furthermore, an equitable failure to make profit for the estate out of funds which should have been made productive is a waste.”

Appellant bases his contention upon section 2 of chapter 74, Cahill’s St., being the chapter on the question of interest, and cites certain cases in support of his contention. Appellant overlooks the fact, that the specific statute, heretofore cited, being paragraph 18 of chapter 86, Cahill’s St., not only specifically makes the charge of interest, but specifies that it shall be charged, not from the date of any accounting, but from the time when the money might have been invested, the statute, as heretofore stated, being that, “the conservator shall he chargeable with interest upon any money which he shall wrongfully or negligently allow to remain in his hands uninvested, after the same might have been invested.”

The next question arising on the record is, whether or not the court properly refused to allow the defaulting conservator and his surety to'take credit for compensation, and did the court err in holding as it did on the proposition of law on that point, and did the court err in its findings of facts in this particular. A conservator who has misappropriated money of his ward and fails to make an account or settlement, is not entitled to receive commissions or fees for services.

Numerous cases hold that compensation may be refused if the administrator has been guilty of wilful default or misconduct in the administration of the estate. Whittemore v. Coleman, 239 Ill. 450; In re Estate of Wincox, 186 Ill. 445; Whittemore v. Coleman, 144 Ill. App. 109. Since the appellant admits that the report of the conservator filed February 27, 1924, had never been approved by the court, the count for compensation claimed in that report, and all compensation since that date, was properly denied in the accounting and judgment of the trial court.

In conclusion, we are of the opinion that bonds of the nature and character of the bond in question are given for the benefit of the ward and that the bond in this cause, notwithstanding its additional provision, is sufficient to charge its maker with liability for all funds for which the conservator was responsible to the ward on the day of the execution and approval of the bond. The conservator had not been exonerated because of his defalcation. His duty to his ward and obligation to her were the same whether he had misused her property or not.

There was a report on file upon which no action had been taken by the court and which admitted that the conservator had in his hands a large sum of money. With these facts being a matter of record, the appellant, the Surety Company, entered into its obligation and ought not now to be heard to say that the report is untrue and that the conservator had embezzled the funds prior to November 20, 1924.

We conclude, therefore, that no reversible error was committed in the trial of the cause and the judgment of ■the circuit court of Peoria county.will be affirmed, which is accordingly done.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. Edward Jeffrey, Appellant, v. Michael J. Murphy et al., Appellees.
    Gen. No. 8,053.

      Opinion filed August 15, 1929.
    F. J. Campbell, for appellant.
    Louis A. Nack, City Attorney and Frank T. Sheean, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.

Edward Jeffrey, the relator, appellant, filed a petition for mandamus in the circuit court of Jo Daviess county against the City of Galena, Michael J. Murphy, Loretta Murphy, August W. Thode, mayor of the City of Galena, and the members of the city council thereof, appellees, for the removal of certain alleged obstructions in Commerce Street and Perry Street in the said City of Galena.

The petition alleges that the City of Galena is a municipal corporation, and as such has charge, possession, custody and control of the public streets and sidewalks within said city; that it is the duty of said city, by its mayor and city council, to prevent the erecting or placing upon, and to remove from, any and all encroachments and obstructions upon said streets and sidewalks; that the law of the State of Illinois and the ordinances of the City of Galena prohibit encroachments or obstructions being erected or placed upon any street, alley or sidewalk of said city by any person or party; that the mayor and aldermen of said city, well knowing their duty in that behalf, did not and now refuse to perform that duty, but suffered and permitted them to remain upon the streets and sidewalks of said city and do now suffer and permit to remain upon the streets and sidewalks of said city, to wit, Commerce Street and Perry Street, the encroachments and obstructions hereinafter mentioned and set forth.

The relator further alleges that he is a citizen, a taxpayer of, and owner of, real estate in said city; that as such citizen, together with all other citizens of said city, he is justly and lawfully entitled to the free and unobstructed use of said streets and sidewalks; that prior to the commencement of this suit, one Michael J. Murphy caused to be erected and constructed upon the sidewalks of said city to wit, upon the street and sidewalks of Commerce Street and Perry Street, the en- ' croachments and obstructions hereinafter mentioned and set forth; that the real estate or lot abutting upon said Commerce Street and Perry Street where said encroachments and obstructions were erected and now maintained, is owned and possessed by said Michael J. Murphy and Loretta Murphy, his wife; that said encroachments and obstructions now being maintained upon said streets and sidewalks as aforesaid are unlawful and in violation of the rights of your petitioner and other citizens of said city and are as follows, to wit, upon the public sidewalk on said Commerce Street, is a mass of concrete,' consisting of cement and stone gravel, extending along and upon said sidewalk, a distance of 7% feet, and extending from the inner edge of said sidewalk toward .the middle thereof, a distance of 19 inches, and elevated from the grade or level of said sidewalk 9 inches in height, and extending from the inner edge of said sidewalk to the outer edge thereof, at a sharp angle; that on said Perry Street is a mass of concrete consisting of cement and stone gravel* used as a driveway from said street level to the entrance of a garage, owned by said Murphys, over and upon the said sidewalk of said Perry Street and extending along said sidewalk, a distance of 8% feet, and extending over and upon said sidewalk from its inner edge to its outer edge the entire width of said sidewalk, a distance of 3% feet; that said driveway extends from the door of said garage, over and upon said sidewalk and out into said Perry Street, a distance of 9% feet; that said driveway is elevated from the grade or level of said sidewalk at its inner edge, a distance of 18 inches, and at the outer edge thereof, a distance of 13 inches and extending from said street level or grade to the said door of said garage, a distance of 9% feet, and extending over and upon said sidewalk there at' a sharp angle.

The relator further sets forth in his petition that said obstructions are of a permanent nature and are a purpresture on said street; that unless removed, said obstructions will continue to be a menace to the safety, of citizens, of said city, or to any person "who may use said sidewalks; that he has repeatedly made demand upon said Murphy to remove said obstructions but that said Murphy has refused and neglected so to do; that he has made repeated demand upon the mayor and aldermen of said city to cause said encroachments and obstructions to be removed but said officials refused and neglected so to do; that he appeared before the city council in a regular open meeting at which the mayor and all the aldermen were present and demanded that said body cause said encroachments and obstructions to be removed; that neither said Murphys nor the said mayor and council have caused said encroachments and obstructions to be removed, whereby they still remain a public nuisance and a purpresture in violation of the rights of your petitioner, and the citizens and public of said city. The prayer of the petitioner then follows.

After the petition was filed, the respondents filed a plea in which they averred that since the institution of this proceeding, the alleged obstruction on Commerce Street had been and is now removed.

Issues were made upon the petition and answer, as to the obstruction on Perry Street. Evidence was heard and the court instructed the jury to find the issue for the appellees and this appeal followed.

Murphy is the owner of a garage. The proof shows the existence of the driveway in question; that it crosses the entire width of the walk and next to the garage entrance is about 18 inches higher than the walk, and on the outer side of the walk, the driveway is approximately 13 inches higher than the walk.

The record shows that photographs were offered in evidence and were admitted without objection from respondents. They show a situation such as is complained of in the petition.

The use of the streets by the public includes the uninterrupted, unimpeded and unobstructed use of every portion thereof. It has the right to use all the ground to travel upon. Village of Scales Mound v. Gessner, 245 Ill. App. 642.

The rule is well settled that when a public street is once established, all of the beneficial uses vest in and devolve upon the public. These uses include the uninterrupted, unimpeded and unobstructed use of every portion and-part of such public highway, not only that they may use all the ground for foundation to travel upon, but that they may likewise enjoy the uses of the air above and the ground beneath the surface. People ex rel. Burton v. Corn Products Refining Co., 286 Ill. 226-232.

In Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91, the court said: “The right of the public to the exclusive use of the streets for public purposes is inconsistent with the right of a private citizen to encroach thereon by the erection of a permanent structure. The streets are held in trust by the municipality, and this fact prevents the municipality from authorizing any encroachment on or obstruction of them by such structures.”

The matter of inconvenience to the public, or that sufficient of the street remain unobstructed to still accommodate the public travel, cannot be considered. The trustee of the public — the municipality — is charged with the duty of keeping and maintaining the streets, in all their parts, open and unobstructed, and in a reasonably safe condition, for the public use. No question of the amount of damage done or which may ensue from the creation of the purpresture is raised, nor can it be considered in proceedings by the public, the question being simply, whether there has been an invasion of the public right. Smith v. McDowell, 148 Ill. 51; People ex rel. Burton v. Corn Products Refining Co., 286 Ill. 226.

Mandamus is an appropriate remedy to compel a city to remove an obstruction upon its streets. People ex rel. Meeker v. City of Casey, 241 Ill. App. 91-92.

Appellees insist that the only question before this court is, as to whether or not the relator proved his case as alleged in the petition, and asked the questions, can this court say, from the evidence introduced, what were the width and location of Perry Street in the City of Galena; can this court say, what is the established grade of Perry Street; where the Murphy garage is located; whether the driveway was located on Perry Street or on the property of Murphy?

We are of the opinion that none of the reasons assigned by appellees is substantial or pertinent. It makes no difference what were the width and location of Perry Street in the City of Galena, nor what was the established grade of Perry Street. It does definitely appear that Murphy’s garage is located on Perry Street; that the driveway crosses the sidewalk on Perry Street and that it is so constructed that it is an obstruction to pedestrians.

The evidence tended to establish the allegation of the petition and it was error for the trial court to give a peremptory instruction directing a verdict. The judgment of the circuit court of Jo Daviess county is therefore reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Eldredge

text:
    E. A. Keith, Appellant, v. J. F. Arnold & Company, Pennsylvania Railroad Company, by way of Inter-pleader, Appellee.
    Gen. No. 8,282.

      Opinion filed April 17, 1929.
    Harry J. Buxbaum, for appellant.
    Nelson W. Hartman, Samuel M. Scholfield and Fordyce, Holliday & White, for certain appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This case originated before a justice of the peace of Clark county and is an action in attachment brought by E. A. Keith, appellant, against the J. F. Arnold Company of Decatur, Indiana. In the affidavit for attachment it is averred that plaintiff is entitled to recover of said defendant the sum of $300 and that affiant has good reason to believe that said Arnold Company is about to remove its property from this state to the injury of the plaintiff. An appeal was taken from the judgment of the justice to the circuit court of said county. While the appeal was pending in the circuit court, the Pennsylvania Railroad Company filed its interplea in which it is alleged that the goods and chattels involved in the attachment were, when so attached, and still are, the property of said Railroad Company and not of the said Arnold Company. To this interplea a replication was filed by the appellant to the effect that at the time said goods and chattels were seized by virtue of the writ of attachment against said Arnold Company they were not and are not now the property of said Railroad Company but were and are the property of said Arnold Company. These pleadings present only the issue of a question of fact. When the case was called for trial in the circuit court, appellant demanded a trial by jury upon the question of fact presented by the pleadings. This demand was denied on the ground that only a question of law was involved and the case was heard by the court without a jury and judgment rendered in favor of the appellee Railroad Company, to reverse which this appeal is prosecuted.

Section 29, chapter 11, Smith-Hurd Stat. 1927, provides that in all cases of attachment, any person, other than the defendant claiming the property attached may interplead and the court shall immediately (unless good cause be shown by either party for a continuance) direct a jury to be empaneled to inquire into the right of property.

It appears from the evidence that the goods in question had been shipped by the Arnold Company at Decatur, Indiana, and billed to itself at Martinsville, Illinois. When the car reached Martinsville on the Pennsylvania Railroad, it was set out on a sidetrack and while in the possession of said Railroad Company and still sealed, a constable, acting by virtue of the writ of attachment, issued by the justice of the peace, demanded the goods and chattels from the Railroad Company and upon the latter’s refusal to surrender possession thereof, he broke the seal of the car and took them therefrom, without delivering to the agent of the Railroad Company the bill of lading therefor. Section 24 of the Uniform Bills of Lading Act, Cahill’s St. ch. 27, ¶ 25; chapter 27, Smith-Hurd Stat. 1927, provides as follows: 24. If goods are delivered to a carrier, by the owner or by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner and a negotiable bill is issued for them, they can not thereafter, while in the possession of the carrier, be attached by garnishment or otherwise, or be levied upon under an execution, unless the bill be first surrendered to the carrier or its negotiation enjoined. The carrier shall in no such case be compelled to deliver the actual possession of the goods until the bill is surrendered to him or impounded by the court.” It is apparent that under these facts the constable had no lawful authority to take possession of the goods and appellant cannot recover under his attachment proceedings. However, the court had no right to anticipate what the evidence would be and take judicial notice thereof. The inter-plea and the replication thereto presented a pure question of fact only and appellant had a right to have that issue tried before a jury notwithstanding that under the undisputed evidence introduced a question of law might be evolved which would make it the duty of the court to instruct the jury to find the issues for the Railroad Company. Counsel cite the case of Ray v. Keith, 218 Ill. 182, as sustaining the action of the court. In that case a demurrer was filed to an amended replication to the interplea and overruled. The claimant abided by her demurrer, whereupon judgment was rendered against her. The court, in that case, held that as the Attachment Act, Cahill’s St. ch. 11, provides that the practice and pleadings in attachment suits shall conform, as near as may be, to the practice and pleadings in other suits at law, when the claimant demurred to the amended replication she admitted the facts therein alleged, and upon the overruling of the demurrer she, having elected to abide by the same, submitted to the court the question of law whether or not the facts so admitted entitled her to a judgment for the property, or whether it was, under those facts, subject to the attachment, and that, notwithstanding that the act requires the court .upon the filing of the interplea to immediately direct a jury to be empaneled and inquire into the right of property, yet when the result of the pleadings is to submit to the court only a question of law, a jury is dispensed with. In the case before us the pleadings did not submit to the court any question of law but only one of fact; therefore it was irregular and improper for the trial court to arbitrarily dispense with the jury and determine the question of fact involved in the pleadings. Appellant had a constitutional right in the first instance to try all questions of fact before a jury notwithstanding that the evidence so introduced might show that he had no right to recover. To hold otherwise would invest a trial court with a discretion not authorized by law and would deprive a litigant of his constitutional right of a jury trial.

Counsel for appellee contends that the judgment should be affirmed because appellant did not abstract his motion for a new trial; the record has not been in other respects abstracted in proper form; that appellant’s statement does not make reference to pertinent pages of the abstract; and that no seal has been attached to the certificate of the judge to the bill of exceptions. A motion for a new trial in a case tried by the court, without a jury is neither required nor authorized by law. (Climax Tag Co. v. American Tag Co., 234 Ill. 179.) And while a motion for a new trial was made in this case it was unnecessary and whether it was abstracted or not is immaterial. The certificate of the trial judge need not be under seal, and as to the other reasons for affirming the judgment, we consider them without merit.

The judgment of the circuit court is reversed and cause remanded.

Reversed and rema/nded.