author: Mr. Presidihg Justice O’Cohhor

text:
    Michael Abrams, Appellant, v. Harry A. Roth and Company et al., Appellees.
    Gen. No. 41,652.

      Opinion filed June 9, 1941.
    Edward H. S. Martik, of Chicago, for appellant.
    Solomoh E. Harrisoh and Edward Berksoh, both of Chicago, for appellees; Marvih W. Berksoh, of Chicago, and Solomoh E. Harrisoh, of counsel.
   Mr. Presidihg Justice O’Cohhor

delivered the opinion of the court.

May 17, 1938, plaintiff filed a creditor’s suit in chancery making Harry A. Both and Company, a corporation, and seven individuals, parties defendant. The seven individuals were served by the sheriff; defendant Harry A. Both and Company, a corporation, was not served because it had been dissolved in 1932. June 4,1938, the seven individual defendants filed their motion to strike the complaint and to dismiss the suit. January 8, 1941, the motion was allowed, the suit dismissed and plaintiff appeals.

The substance of the allegations of the complaint is that January 22,1936, defendant Harry A. Both and Company, a corporation, and the other defendants, together with “Harry A. Both, now deceased, were co-partners doing business under the name, style and description of Broadview Heights Bealty Trust” and were engaged in selling real estate of a certain subdivision located in Cook county, the title to which real estate was held in trust for defendants’ benefit by the Liberty Trust and Savings Bank, under a trust agreement dated January 22, 1926; that on that date defendants, including Harry A. Both, employed defendant Harry A. Both and Company, a corporation, to act as defendants’ agent in selling the real estate, and July 18, 1927, the defendant corporation “sold to the plaintiff under contract of sale, really on behalf of the partners,” Lot 18, Block 6, in the subdivision for $1,900 part of which was paid in cash and other payments made thereafter; that afterward, February 19, 1931, plaintiff, claiming to be entitled to a rescission of the contract and to recover the part of the purchase price he had paid to defendant corporation, instituted suit in the Superior court of Cook county against the corporation; that the corporation was served with process and December 6, 1937, plaintiff recovered a judgment against the corporation for $1,125.17 and costs of $28.20; that December 17, 1937, an execution" .was regularly issued on that judgment and on the next day delivered to the sheriff and afterward, April 1, 1938, the sheriff returned the writ “no part satisfied.”

Plaintiff further avers he still owns the judgment and it remains wholly unsatisfied and that the suit was not brought by collusion with the corporation, the judgment debtor, or any other person “but is instituted for the sole purpose of compelling payment of the said judgment.”

That “The partners, by reason of the premises, are indebted to the judgment debtor for the amount of the judgment so recovered against the judgment debtor and are obligated to indemnify the judgment debtor and hold it harmless”; that plaintiff is informed and believes, and upon such information and belief charges the fact to be that “the judgment debtor has real estate or some interest therein, or has moneys on hand or deposited or held for its credit or use, stocks, bonds, promissory notes, [etc.], . . . which it keeps concealed or the title to which is held by others in trust for it and which the plaintiff has been unable to reach by execution”; that the judgment debtor has since the return of the execution put out of his hands, name or possession by some pretended sale, etc., “divers other such real and personal property, with intent to deceive, hinder, delay and defraud” plaintiff from having the judgment satisfied.

The prayer was that an account be taken; that defendants be required to set forth all the facts and particulars “concerning each and all of the matters aforesaid”; that the judgment debtor be decreed to pay and satisfy the amount due on the judgment; that a receiver be appointed and that the judgment debtor be enjoined from transferring or disposing of its property.

There is no allegation in the complaint on information or belief or otherwise that defendants, or any of them, have any property belonging to the defendant • corporation, the judgment debtor.

The brief of counsel for plaintiff discloses the fact that all he is seeking is to compel the individual defendants to pay the judgment. In this connection counsel says: “Among the choses in action of the judgment debtor [defendant corporation], which the plaintiff has a right to have applied to payment of his judgment is the obligation of the partners to indemnify the judgment debtor and hold it harmless from the liability, now merged in judgment, incurred by it through sale on behalf of the partners of their real estate in the performance of its agency functions, regardless of whether that judgment has been paid or not.”

Since it is admitted by defendants’ motion to strike the complaint and to dismiss the suit that defendant Harry A. Both and Company, a corporation, acted as agent of the other defendants (in executing the contract for the sale of the lot to plaintiff and in receiving the payments from him and the corporation) within the scope of its authority, then under the law, defendants would be required to indemnify their agent, the corporation. Vol. 1, Mechem on Agency, 2d. ed., § 1603; First National Bank v. Tenney, 43 Ill. App. 544; Evans v. Pistorino, 245 Mass. 94.

Professor Mechem in the section cited says:

“ § 1603. Agent must be indemnified against consequences of lawful acts. — The agent has the right to assume that the principal will not call upon him to perform any duty which would render him liable in damages to third persons. Having no personal interest in the act, other than the performance of his duty, the agent should not be required to suffer loss from the doing of an act, apparently lawful in itself, and which he has undertaken to' do by the direction, and for the benefit and advantage, of his principal. If in the direct performance of such an act, therefore, the agent invades the rights of third persons and incurs liability to them, the loss should fall rather upon him for whose benefit and by whose direction it was done, than upon him whose-only intention was to do his duty to his principal. Wherever, then, the agent is called upon by his principal to do an act which is not manifestly illegal, "and which he does not know to be wrong, the law implies a promise .on the part of the principal to indemnify the agent for such losses as flow directly and immediately from the very execution of the agency. ’ ’

In First National Bank v. Tenney, 43 Ill. App. 544, Tenney brought suit against the bank to recover expenses incurred by him in litigation growing out of a suit brought against him as a result of what he did while acting as agent of the bank and it was held he could recover. The court there said: “One of the primary rules of the law of principal and agent, is that the principal is bound to indemnify the agent against the consequences of all lawful acts by him bona fide done in pursuance of the authority conferred. Evans’ Newell on Agency, 353; Meechem [Mechem] on Agency, § 653; Story on Agency, § 339; Stocking v. Sage, 1 Conn. 519; Greene v. Goddard, 9 Metcalf, 212-222; Perry on Trusts, § 910. . . .

“The principal is not bound to appeal from a decree rendered against his agent; he may submit to it, but he is bound to indemnify his agent, and this means something more than that after the agent has paid the judgment, or under it been stripped of his goods by due process of law, that the principal will then afford remuneration. . . . When sued for an act done in pursuance of his employment, he is not obliged to let judgment go against him, but may defend and recover the expenses of a defense bona fide made. ’ ’

The Evans case [245 Mass. 94] was a “Bill in Equity, begun by writ in trustee process ... by a judgment creditor of the defendant Dorman-Huxford Company to compel two other defendants, for whom the judgment debtor as broker incurred the debt which was the basis of the judgment, to pay the debt in the place of the judgment debtor.” Plaintiff had recovered judgment which on appeal was affirmed. In that case Dorman-Huxford Company, a Massachusetts corporation, as broker, bought canned goods of the Evans, Coleman & Evans Company, a corporation, of Vancouver, British Columbia, for two other parties in two lots. The Evans Company brought an action against the Dorman-Huxford Company as purchaser and recovered a judgment against it for what was due on the sale of both lots of goods. The present suit was brought by the Evans Company against the Dorman-Huxford Company and the parties for whom the goods were purchased. “The purpose of the bill is to collect the amount due o'n the judgment from the persons for whom the goods were bought by Dorman-Huxford Company and who are alleged to be debtors to that ' company.” The court there said (p. 99): “It was said in Greene v. Goddard, 9 Met. 212, at page 222, ‘Where an agent, in pursuing the instructions of his principal, and acting within the scope of his authority, becomes personally liable for the performance of the contract he makes for his principal, and without which personal liability the orders of the principal cannot be executed at all, or not so well executed, and this is known by the principal at the time of giving his instructions and creating the agency, if a loss occur to the agent, it is most clear that he can look to the principal for indemnity for the damage sustained by him. ’ Bibb v. Allen, 149 U. S. 481, 498.

“It is not always an essential prerequisite in equity to liability on the part of the customer to his broker for indemnification for loss incurred that the latter has actually paid the obligation. In the circumstances here disclosed and in this proceeding in equity, it is not necessary that D orman-Huxf or d Company be forced into bankruptcy or make payment of the plaintiff’s claim by borrowing money to that end before liability on the part of those ultimately responsible can be established and enforced. As between Dorman-Huxf or d Company, the brokers or agents, and their customers or principals, the ultimate responsibility is wholly on the latter.” And continuing the court said (p. 101): “The plaintiff is not precluded from recovery in this proceeding by recovering judgment against Dorman-Huxford Company. Doubtless that judgment was an election to hold that corporation rather than other defendants as its main debtor. . . . Having obtained judgment against one whom it has elected to hold as its main debtor, it is now attempting to collect that judgment by equitable process against those liable to that debtor.” The court then discusses the admissibility of certain evidence and continues: “It was competent as binding between the parties to it, both of whom are parties to this action. It was competent on the further ground that the master’s report shows in substance tender of defence of that action to Tunes. He was present in court during the trial, with his attorney, and assisted by furnishing evidence for its defence. This bound the defendants whom Tunes represented and rendered that judgment conclusive against them. Boston v. Worthington, 10 Cray, 496, 499. Boston & Maine Railroad v. T. Stuart & Son Co. 236 Mass. 98, 102,”

In the instant case under the authorities above cited and particularly the Evans case, we are of opinion plaintiff can maintain his suit under the provisions of § 49 of the Chancery Act, ch. 22, § 49, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 106.12]. But unlike the judgment entered in the Evans case against the Donnan-Huxford Company, the defendants in the instant case are not bound for the reason there is no allegation in the complaint that defendants knew of the suit brought against Harry A. Roth and Company, a corporation. Boston v. Worthington, 10 Gray, [76 Mass.] 496.

But defendants contend the judgment debtor, Harry A. Roth and Company, a corporation, is a necessary party to the instant case and that while it was named in the summons it was not served with process and could not be made a party for the reason that it was dissolved by a decree of the Superior court of Cook county June 18, 1932, and the instant case was not brought until nearly six years thereafter, viz., May 17, 1938. The fact of this dissolution was set up in defendants’ motion to strike the complaint and to dismiss the suit which was verified in accordance with the provisions of § 48, of the Civil Practice Act, ch. 110, § 48, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.048].

While some point is made by plaintiff that the dissolution of the corporation is not properly shown by the record, we shall assume for the purpose of this decision that it shows the corporation was dissolved as contended by defendants. But we are of opinion the corporation, the judgment debtor, was not a necessary party. Quinn v. The People, 146 Ill. 275. In that case it was held that. a judgment debtor was a necessary party to a creditor’s bill only where the bill sought to set aside a fraudulent conveyance. In the instant case plaintiff does not seek to set aside any conveyance.

For the reasons stated, the order of the Superior court of Cook county appealed from is reversed and the cause remanded with directions to overrule the motion to strike and to require defendants to answer.

Reversed and remanded toith directions.

Hatchett and He Surely, JJ., concur.,


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Chicago Title and Trust Company, Trustee, Appellants, v. Village of Westchester et al., Appellees.
    Gen. No. 41,707.
    Opinion filed June 9, 1941.
    Opinion modified and rehearing denied June 23, 1941.

      Markman, Donovan & Sullivan, of Chicago, for appellants ; Henry O. Nickel, of Chicago and John P. Sullivan, of counsel.
    George Sass, of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

An amended petition for a writ of mandamus was filed to compel defendants to pass an ordinance and file a petition in the County court of Cook county for refunding special assessment bonds issued in special assessment proceedings known as Village of Westchester Numbers 15, 23, and 38, in accordance with § 86a of the Local Improvement Act. (Par. 792a, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 76.107].) Defendants, Village of Westchester and certain of its officials, filed their motion to dismiss. The motion was sustained, the petition dismissed and plaintiffs appeal.

The substance of the allegations of the amended petition is that the Village of Westchester, under the Local Improvement Act, brought three proceedings in the County court of Cook county designated as West- . Chester Special Assessments Numbers 15, 23, and 38; that the assessments were confirmed and special assessment bonds issued under the statute; that plaintiffs, petitioners, are the owners of all bonds outstanding and unpaid; that July 23, 1940, the petitioners being1 then the owners and holders of all outstanding bonds, presented three petitions to the president and board of trustees of the village, each of which is made a part of the petition filed in the instant case.

The petition in relation to special assessment Number 15 sets up that the undersigned petitioners are owners and holders of 100 per cent of the unpaid special assessment securities issued in anticipation of that special assessment which was confirmed by the County court of Cook county May 25, 1928; that they were desirous of having the bonds refunded and extended in accordance with the provisions of § 86a, and that the assessment for that purpose be extended and divided into ten equal annual installments, the first to be due and payable January 2,1941; that they are will- ' ing to surrender bonds and coupons for accrued interest on defaulted bonds now held by them which bear interest at 6 per cent and would deposit them as the court might direct. The schedule of the bonds is attached to that petition; that upon presentation of the petition to the village officials it became their duty to proceed in accordance with § 86a, but they refused to do so.

Similar allegations are made in the petition for a writ of mandamus as to special assessment Number 23 which it was alleged was divided into five annual installments with interest at 6 per cent per annum; that the owners of all the unpaid special assessment bonds issued under special assessment Number 23 were owned by the petitioners; that they had presented a petition to the village officials asking that proceedings be taken under § 86a to refund and extend the time of payment, dividing the payments into ten equal annual installments at 6- per cent per annum, but the officials refused to act.

In reference to special assessment Number 38, similar allegations are made in the amended petition asking that the bonds be refunded and the time of payment extended and divided into ten annual installments with interest at 6 per cent per annum; that they, the owners of all outstanding securities issued to anticipate the collection of this special assessment, had petitioned the village officials but they had refused to act.

Defendants specified four grounds in their motion to dismiss: (1) That the petitions presented to the village officials were not signed by the owners and holders of 75 per cent of the outstanding special assessment securities; (2) that the three petitions presented to the village officials were conditioned upon the extension “of the respective unpaid special assessments” making them payable in ten annual installments; (3) that each of the three petitions is conditioned upon the refunding bonds bearing interest at 6 per cent per annum, and (4) that § 86a of the Local Improvement Act was unconstitutional.

(1) Was each of the three petitions presented to the village officials signed by the owners and holders of 75 per cent of the outstanding unpaid securities? The amended petition for a writ of mandamus alleges that pursuant to the terms of an agreement made and entered into May 16, 1921, by and between the Chicago Title & Trust Company, as trustee, and Loewenthal Securities Company, a corporation, James H. Freudenthal, A. W. Meyer, Elsa Kirchheimer, Herman Kirchheimer, Trustee of the Estate of Sigmund Kirchheimer, deceased, and Leopold Metzenberg, a certain series of “Municipal Trust Certificates” designated “M”, “N”, “S”, and “U” were issued and that petitioner, the Chicago Title & Trust Company, as trustee, is the duly appointed and acting trustee of the certificates. Each of the three petitions presented to the village officials represents that they are the owners and holders of 100 per cent of the unpaid securities and each purports to be signed by the owners of all of the outstanding securities in each of the three petitions.

The petition for mandamus is brought on behalf of the parties who allege they own 100 per cent of the bonds and is signed by them by their duly authorized agent, and verified. The petition sufficiently shows that the owners of all of the outstanding and unpaid bonds had petitioned the village officials to proceed under § 86a. We think the objection made is highly technical and without merit.

(2) and (3) Was each of the three petitions presented to the village officials insufficient for the reason the petitioners requested that the unpaid assessments be divided into 10 installments and the refunding-bonds bear 6 per cent per annum? Section 86a provides : ‘ ‘ The court having jurisdiction of the original assessment proceeding is hereby authorized to extend the time of payment of assessments, or any installment or installments . . . and to refund the securities . . . issued in anticipation of the collection of assessments . . . provided, all securities of the particular maturity shall be so surrendered. The court is hereby vested with authority to divide the assessment into a greater or less number of installments than was originally provided for in the order confirming assessments and to fix the amount of each installment, if, in its judgment, such re-division of assessments into a greater or less number of installments is for the best interest of all parties concerned.” That section continuing provides that the municipality “shall, upon petition of seventy-five per cent of the holders of any securities issued by any such municipality addressed to said corporate authorities, adopt an ordinance directing and providing for the extension of time -and payment of the assessments and ... of refunding securities in anticipation of the collection of the assessments and installments of special assessments, time and payment of which to be so extended. The ordinance . . . shall direct the filing- of a petition in the court of- jurisdiction of the original assessment. In the ordinance, the municipality shall establish a date of issue of such refunding* securities.” The section then provides for notice and hearing which is to be before the court without a jury in a summary way “provided, however, that no approval of such refunding shall be entered until all outstanding securities shall have been either • deposited in the court ... or with some depository satisfactory to the court. ’ ’ That the corporate authorities shall file a petition giving information such as in the original proceeding, etc., and indicating whether the holder of the securities “will surrender their securities in exchange for refunding securities . . . the desired maturity of assessment installments, and shall also state the rate of interest, maturity and amount of refunding securities sought to be issued”; that an assessment roll shall accompany the petition giving certain information. ‘ ‘ The determination of the court as to its findings on the petition . . . shall be conclusive and not subject to review or writ of error.” Then follows a provision for notifying the parties of the hearing to be had in the court, and “At such hearing, the court shall make such orders as may be deemed proper in the premises and may extend the time of payments of one or more installments of said assessments, may change the number of installments in which said assessments are divided, . . . and the court shall, in such order, fix the amount, rate and other details in connection with the issuance of the refunding securities, provided the securities shall bear interest at not more per annum, payable annually, than is provided as to the original issue.” That “corporate authorities shall issue the refunding securities authorized by order of court, . . . provided, the delivery of the refunding securities shall be simultaneous with the surrender of a like par amount of old securities for payment or cancellation in exchange for the refunding securities so issued.”

We think the three petitions sufficiently complied with the statute which is clear and unambiguous. It expressly authorized the court “to divide the assessment into a greater or less number of installments than was originally provided for in the order confirming assessments,” and “the court shall, ... fix the amount, rate and other details in connection with the issuance of the refunding securities, provided the securities shall bear interest at not more per annum than 6 per cent.” Defendants should have proceeded to refund the securities as the petitioners requested and when the matter would be brought on for hearing before the County court the matter of the number of assessments and the rate, of interest could be adjudicated, all of the facts then being before the court.

Section 86a has been the subject of consideration by our Supreme Court a number of times. Village of Bellwood v. Hunter & Co., 375 Ill. 627; Thayer v. Village of Downers Grove, 369 Ill. 334; Village of Downers Grove v. Harley, 372 Ill. 586; Hoehamer v. Village of Elmwood Park, 361 Ill. 422.

(4) The fourth point made in defendants’ motion to dismiss the suit was on the ground that § 86a was unconstitutional. Their motion made some time ago to transfer the case to the Supreme Court on this ground has heretofore been denied on the authority of Village of Bellwood v. Hunter & Co., and the other cases above cited.

For the reasons stated, the judgment of the Circuit court of Cook county is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Hatchett and HcSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    L. L. McArthur, Jr., Appellee, v. William O. Weidert et al., Defendants. Roy D. Keehn, Appellant.
    Gen. No. 41,638.

      Opinion filed June 9, 1941.
    Rehearing denied June 23, 1941.
    W. M.' Keeley, of Chicago, for appellant.
    Pam, Hurd & Reichmann, of Chicago, for appellee; Arthur M. Cox and Lesteri Gt. Britton, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed his complaint asking for partition of certain real estate situated at 300-308 N. Michigan avenue, in Chicago, Cook county, Illinois; answers were filed by certain defendants, the matter was referred to a master who reported, recommending a decree as prayéd for, exceptions were overruled and the decree was entered. Defendant Roy D. Keehn appealed to the Supreme Court, which held that no freehold was involved and transferred the cause to this court. (375 Ill. 212.)

Keehn asks for the reversal of the decree, which . partitioned the real estate and found that he had defaulted in his undertaking in a 99-year lease in which he was 'lessee, and removed it as a cloud. Although the hriefs discuss at some length the action of the trial court in striking certain paragraphs of defendant’s answer, we do not deem it necessary to discuss this for the reason that the main issue in the case remained and was considered and determined. Did the superior court have jurisdiction of the proceedings to partition the real estate?

Defendant Keehn argues that the court lacked jurisdiction for the reason that the interests of plaintiff McArthur and the first defendant, Weidert, were only nominal — the real owner being the Northern Trust Company, as trustee, and that the action was brought in partition only for the purpose of removing Keehn’s interest as a cloud upon the title.

The complaint alleged that plaintiff was seized and possessed of the title to an undivided one half of the real estate; that this interest was acquired by virtue of a "quitclaim deed to plaintiff from defendant William C. Weidert, who was seized and possessed of the title to the remaining undivided one half of the real estate, and that plaintiff and Weidert owned the title as tenants in common. Defendant Keehn answered, certain paragraphs of which were stricken, but there was left paragraph 1, in which he denied the allegations with reference to the ownership of McArthur and Weidert as alleged in the complaint.

On the hearing before the master defendant Keehn introduced no testimony, his position being that plaintiff’s evidence failed to show the facts necessary to support partition proceedings; that the statute on partition (eh. 106, § 1) states the interests which must exist before a partition proceeding may be commenced, namely, when lands are held in joint tenancy, tenancy in common or coparcenary. He argues that neither McArthur nor Weidert owned the property in either of these capacities; that Weidert was the acting agent for the Northern Trust Company, as trustee, which was the owner of the property and quitclaimed one-half interest to one of its officials, plaintiff McArthur, for the sole purpose of bringing this partition suit.

To support his position plaintiff introduced a number of documents; among others was a 99-year lease from David C. Cook, lessor, to defendant Keehn, lessee, dated August 30, 1922; also the will of David C. Cook, deceased, owner of the property, and the order admitting it to probate; a complaint in a foreclosure proceeding by the Northern Trust Company, trustee under a trust agreement executed by the heirs of David C. Cook, to foreclose a trust deed executed by Margaret Cook, widow, and the owners of the premises to secure an indebtedness of $318,500; also the sworn answer of Keehn in that proceeding in which he asserted the 99-year lease to him and all obligations thereunder were canceled and terminated; the decree of foreclosure, the sale by the master to the plaintiffs in that suit, who were the holders of the mortgage notes; the mandate of the Appellate Court upon the appeal of Keehn from the foreclosure decree (294 Ill. App. 601); the master’s certificate of sale to the plaintiffs in that suit, who assigned it to defendant Weidert, who, upon expiration of the period of redemption obtained and recorded the master’s deed; a deed from Weidert to plaintiff McArthur dated June 8, 1938, conveying an undivided one-half interest. in the premises. These documents received in evidence establish a chain of title from David C. Cook to plaintiff McArthur and defendant Weidert as tenants in common, each of an undivided one-half interest. Whatever interest defendant Keehn has is through his lease from David C. Cook.

Defendant Keehn introduced no evidence before the master to controvert the evidence of plaintiff as to the title, and his brief makes no argument on the question of the title ,• in the opinion by the Supreme Court transferring the case to this court it was said that he stated the title to the property was not in issue but “the issue is solely of jurisdiction of the court.” We do not understand how the jurisdiction of the court can be questioned without giving consideration to the title.

The statute on partition (ch. 106, § 1) says clearly that tenants in common of land may compel partition by complaint in chancery. The documents introduced by plaintiff create a tenancy in common between plaintiff McArthur and Weidert. Defendant cannot question this by statements of fact appearing only in his brief and not in the record, nor by arguments based only on surmise.

It is true it has been held many times that where the record shows the lands were not held in joint tenancy, tenancy in common or coparcenary, partition proceedings would not lie. Defendant cites Reynolds v. McCurry, 100 Ill. 356, but there it was held the partition proceeding was improper where the title was vested in only one party. Ruddell v. Wren, 208 Ill. 508, involved the construction of a will upon which the title depended and it was held plaintiff had no title and therefore could not partition. In McConnell v. Pierce, 210 Ill. 627, it was held the evidence showed that the entire title was vested in plaintiff. Other cases cited by defendant can likewise be distinguished.

As supporting plaintiff’s position we find Albers v. Central Republic Bank, 372 Ill. 27, where a.receiver of Phillips State Bank filed a suit for partition claiming he owned a half interest as tenant in common with the defendant Eva A. Taft; her husband answered asserting she had no interest in the property but that the ownership was entirely in the bank. It was held that the husband, John H. Taft, had no interest which would entitle him to object and the partition suit was allowed. In Hazlett v. Moore, 372 Ill. 192, where the right to partition was questioned on the ground the parties had only an equitable interest in the property, it was held that the remedy by partition was open to equitable owners although the title was in a trustee. In Trainor v. Greenough, 145 Ill. 543, the holder of the legal title made a deed to her son of an undivided one-fourth; a bill was filed for partition of the property and to set aside the claim of Trainor, who was in actual possession of the property, claiming to have a contract for its purchase; Trainor argued that the conveyance to the son was a sham conveyance made only for the purpose of enabling plaintiff to file a complaint for partition. This is,.the same argument made in the instant case. The court said (p. 549): “Being entitled to have partition decreed, it is no more a question for the court what motive may have moved the party to ask the court to render such decree, than it is what motive moves a party to ask for judgment on an over-due note.” And (p. 550) even if the conveyance to the son was “for the express purpose of having this suit brought (but there is here no proof of that kind), on the authority of Danville Seminary v. Mott. (136 Ill. 289) he (Trainor) could not object to it.” And the decree of partition was affirmed. To the same effect is the Danville Seminary case just referred to. In Camp Phosphate Co. v. Anderson, 48 Fla. 226, in a partition suit it was asserted that the plaintiff had no legal interest in the property and the title to it was in another company. The partition suit was sustained, the court holding that the objecting defendant could not set up an outstanding title in a third party under which it did not claim. In Yedor v. Chicago City Bank & Trust Co., 376 Ill. 121, it was asserted that plaintiff had no right to bring a partition suit as she did not have legal or equitable title to the property and her only interest was in the income. The opinion, after noting that to entitle anyone interested in land to bring a. partition suit he must hold either in joint tenancy, tenancy in common or coparcenary, says on page 128, “ . . . but where a case is fairly brought within the law authorizing such a suit, partition is a matter of right and not one of grace. (Murphy v. Murphy, 343 Ill. 234; Hill v. Reno, 112 id. 154.) The motives which move a party to seek partition are immaterial. (Trainor v. Greenough, 145 Ill. 543.) The rule is well settled that in cases such as this partition is maintainable by the holder of an equitable estate as ' well as by the holder of a legal estate.”

We hold the record justified the conclusions of the master and the chancellor that plaintiff McArthur and defendant Weidert held title to the property in question as tenants in common, and hence under the statute on partition the chancery court had jurisdiction to entertain the complaint for a partition.

Another reason for holding against the contention of defendant Keehn is that he never asserted what interest, if any, he claimed to have in the property. The evidence with reference to his 99-year lease was his sworn answer in the foreclosure proceeding in which he asserted his lease had been canceled. In Shippert v. Shippert, 371 Ill. 267, 271, it was held that any defendant in a partition proceeding wishing’ to assert an interest in the premises must make known his rights and that he is bound to do this. The record is free of any assertion of defendant Keehn’s interest in the premises. The complaiiit alleged that the 99-year lease to Keehn called for an annual rental of $55,000, commencing January 1, 1933. No rent has been paid since 1934. It also provided that the lessee should pay all taxes and assessments. At the time the partition complaint was filed the defaulted taxes amounted to over $250,000, without interest and penalties. The lease also provided that default in payment of any installment of rent for 30 days should, without notice or demand, entitle the lessor to terminate the lease. The complaint alleged that an instalment of rent under the lease amounting to $13,750, due April 1, 1938, was in default and that Weidert served notice of cancellation of the lease and thereupon said lease terminated. There is no specific denial of these allegations. He has shown no interest in the property, and he cannot question the allegations of the complaint that plaintiff and defendant Weidert have title to the premises as tenants in common. The briefs now considered by us are the same briefs filed in the Supreme Court, and in the opinion by that court in this case it is noted that defendant Keehn “does not complain of the loss of his leasehold interest.” That being true, he has no standing to question the jurisdiction of the court in the instant case.

Defendant Keehn filed certain interrogatories to be propounded to plaintiff which, on motion, were stricken by the court. These relate to whether or not plaintiff McArthur paid any consideration for the deed to him and whether there are some equitable interests in the premises outstanding in others, and also as to the motive or purpose of the conveyance from Weidert to McArthur. The court properly sustained the motion to strike these interrogatories. As we have above noted, whether plaintiff gave any consideration for the deed to him is immaterial, as is the motive for the conveyance. See Trainor v. Greenough, 145 Ill. 543, where it was held that even if the conveyance was made for the express purpose of bringing a partition suit, the objecting defendant had no standing to object. We repeat that since defendant Keehn has failed to show he has any interest in the premises, all his objections were properly overruled.

For the reasons above indicated the decree of partition is affirmed.

Decree affirmed.

O’Conhor, P. J., and Matchett, J., concur.


text:
    Elsie Taman, Appellant, v. Milton Marcus et al., Appellees.
    Gen. No. 41,642.
    Opinion filed June 9, 1941.
    Israel Dordek, of Chicago, for appellant.
    Harry A. Biossat, of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought an ejectment suit asserting she had an undivided one-half interest in certain real estate the title to which was derived from tax deeds; the court sustained the contention of defendants that these tax deeds were void; she then claimed a right to be reimbursed for all payments made in obtaining these tax deeds, as provided by section 224 of the Revenue Act of 1937 (Ill. Rev. Stat. 1937, ch. 120, par. 210 [Jones Ill. Stats. Ann. 119.245]). The trial court held she was not entitled to be reimbursed, and from this judgment she appealed directly to the Supreme Court, which, holding that no freehold was involved, transferred the cause to this court.■ (375 Ill. 210.)

The only point presented here is whether plaintiff is entitled to reimbursement for tax and legal costs paid by her under defective tax deeds where she has been defeated in an action of ejectment brought as the holder of such tax deeds. This involves a construction of § 224 (now 270) of the present Revenue Act. This was an amendment of a former section.

There are a number of decisions holding that under the former section the holder of an invalid tax title is only entitled to reimbursement when his tax title is attacked and set aside in a proceeding brought for that purpose by the owner of the land. In re Ogden Apt. Bldg. Corp., 90 F. (2d) 712, 714; City of Chicago v. Pick, 251 Ill. 594, 599, 600. In Gage v. Eddy, 186 Ill. 432, the court said: ‘ One who purchases land at a tax sale or becomes the owner of titles based upon tax liens is engaged in a venture for the purpose of reaping profits and gains. There is no rule of law or maxim of equity which he may invoke to compel the owner of the property to reimburse him the amounts he has invested in the venture, except in the event the property owner asks the aid of a court of equity to cancel the tax purchases, liens or deeds as clouds upon the title to the property.” Moreover, in Riverside Co. v. Townshend, 120 Ill. 9, and Glos v. Patterson, 195 Ill. 530, it was held that section 224 had no application to an ejectment proceeding.

In ascertaining the intention of the legislature in amending an act the state of the law prior to the amendments must be considered, and the provisions of the statute as amended, so far as they are the same as those of the prior statute, shall be construed as a continuation of such prior provisions. Section 2, ch. 131, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 27.14]. Spiehs v. Insull, 278 Ill. 184; Landry v. E. G. Shinner & Co., Inc., 344 Ill. 579.

The section now in question, as amended in 1919, reads: “Provided, that any judgment or decree of court, in law or equity, setting aside any tax deed procured under this Act, or restoring the owner of same to possession, shall provide that the claimant shall pay to the party holding such tax deed the following: All taxes and legal costs, as provided by law. . . .” (We have underscored the material words which were added to or changed the language of § 224.) The amendment also provided that no final judgment involving title to or interest in any land in which the party holding the tax deed shall have an interest or decree setting aside any tax deed procured under this act shall be entered “until the claimant shall make reimbursement to the party holding such tax deed. . . .”

In the cases above referred to the word “claimant” in the act has always been construed to be the plaintiff seeking relief against the holder of a tax title. The statute as amended evidences the intention of the legislature to reimburse the holder of a tax deed where the owner of the property as “claimant” successfully seeks the aid of a court to cancel such a tax deed, or where the owner of the tax deed, through it, obtains possession of the land. In either of such cases the . amended statute provides that the “claimant,” meaning the owner of the land, shall reimburse the party holding the tax deed.

Plaintiff cites Bobzien v. Schwarts, 289 Ill. App. 299, and Phelps v. City of Chicago, 331 Ill. 80, as supporting her claim for reimbursement, but in each of these cases the owner of the land was plaintiff or claimant and the tax holder was defendant. In no case has it been held that where a tax deed holder on his own initiative commences an action he is entitled to reimbursement, especially in ejectment where it is adjudged in effect that he holds no tax deed — what purports to be a tax deed being void.

In the present ejectment suit, based on tax deeds, it has been adjudged that plaintiff has no valid tax deeds to the premises involved, and this judgment is not questioned in this appeal. Under such circumstances she is not entitled to be reimbursed for the moneys paid for such void deeds.

For the reasons indicated we hold that the judgment of the trial court was proper and it is affirmed.

Judgment affirmed.

O’Cohhor, P. J., and Hatchett, J., concur.


author: Mr. Justice McSurelt

text:
    Othelia Eskildsen, Administratrix of Estate of Niels Eskildsen, Deceased, Appellee, v. Chicago Macaroni Company, Appellant.
    Gen. No. 41,648.

      Opinion filed June 9, 1941.
    Victor H. Bloom, of Chicago, for appellant.
    Fred W. Wolfe and William O. Burns, both of Chicago, for appellee; Carl Pomerance, of Chicago, of counsel.
   Mr. Justice McSurelt

delivered the opinion of the court.

Defendant appeals from a judgment against it of $487.07, entered upon trial' by the court. Plaintiff’s claim alleged this amount was due Niels Eskildsen, deceased, for merchandise sold by him to defendant; the claim was denied by defendant, which filed a counterclaim setting forth that the estate was indebted to it based upon a rent balance. The case was tried June 5, 1940, and judgment was in favor of plaintiff and against defendant on its counterclaim.

Defendant makes the point that on the day the case was tried and judgment entered, namely June 5, 1940, there was no plaintiff, as the administratrix bringing the suit had before that date presented her final report to the probate court of Cook county and had been discharged.

July 19, 1939, the administratrix filed the statement of claim; April 18, 1940, she presented her final report and account in the probate court, which account was approved and she was discharged as administratrix.

After the judgment against defendant entered June 5, 1940, it filed its motion to vacate the judgment on the ground plaintiff had been discharged as administratrix and therefore there was no party plaintiff and the court was without jurisdiction to hear the cause.

June 19, 1940, an order was entered in the probate court vacating the order of April 18, nunc pro tunc and authorizing the administratrix to continue in that capacity as though she had not been discharged; November 14, 1940, defendant made a motion for a new trial and the court heard at considerable length the testimony of a public accountant, and after hearing, the motion for a new trial was denied and judgment for plaintiff was entered.

Plaintiff, in answer to defendant’s assertion on this appeal that there was no plaintiff who could take judgment when the case was tried and judgment entered, cites a number of cases, in which it has been held that although an order may be entered discharging an administratrix, such order is void as to the unsettled matters of the estate. In Horner Probate Practice and Estates (consolidated 4th ed.) vol. 1, § 766, it is said, . . . an order discharging the representative on a final accounting is void as to the unsettled part of the estate, and the representative has not been discharged although the report filed may have been approved. ’ ’ Among the cases supporting this in definite terms are People v. Rardin, 171 Ill. App. 226; Fraser v. Fraser, 149 Ill. App. 186, 195, 196; In re Estate of Brown, 204 Ill. App. 596 (Abst.); Diversey v. Johnson, 93 Ill. 547; Starr v. Willoughby, 218 Ill. 485.

Cases cited by defendant in opposition are not in point. A typical case is Mitchell v. King, 187 Ill. 452-459, where the plaintiff died pending the suit, which proceeded to judgment, although he had been dead some time. The court held under such circumstances that no judgment could be entered in favor of the dead man. Other cases cited involved the death of the plaintiff where the case proceeded without the death being-suggested or the substitution of the executor or administrator as plaintiff.

Plaintiff correctly says the order of the probate court of June 19, 1940, vacating- the order discharging her as administratrix did not change the status of the case but merely corrected the record to show the true condition. We are of the opinion the order discharging the administratrix when the claim of the estate against defendant was still pending in the municipal court was void as to this claim.

No argument is presented as to the merits of the case.

For the reasons indicated the judgment is affirmed.

Judgment affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    A. P. Shirley et al., Trading as Shirley, Olcott and Nichols, Appellees, v. Ellis Drier Company, Appellant.
    Gen. No. 41,684.

      Opinion filed June 9, 1941.
    Hutson, Traeger & Bolger, of Chicago, for appellant ; Frank J. Smith, of Chicago, and Lawrence C. Traeger, of counsel.
    Nelson, Slater & Boodell, of Chicago, for appellees ; Louis A. McLean, of Chicago, and Drennan J. Slater and Thomas J. Boodell, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a summary judgment for plaintiffs for $2,042.78, representing commissions earned by plaintiffs on sales for defendant of laundry machinery to the federal government.

Plaintiffs claimed an approximate amount of $8,000 from defendant, which in its answer stated as a partial defense that it was agreed the commission was to be paid upon the contract price after deducting freight, installation costs, penalties and discounts, and only when the contract price was fully paid. The trial court reserved for trial the issues made by this allegation and entered judgment for the amount not in dispute, except as.hereinafter stated.

The case was tried by the court — Judge Harry M. Fisher, who, in passing upon plaintiffs’ motion for summary judgment, correctly stated the procedure to be followed upon such a motion, saying that “the Court takes the affidavit of plaintiff and the affidavit of the defendant, compares both of them precisely as if the affidavits represented oral evidence of witnesses appearing on the witness stand, and then determines whether, if the evidence contained in these affidavits was orally submitted to the Court, there would be something left to go to a jury. If there is anything left to go to the jury the motion for summary judgment is denied. If what is contained in the affidavits would have constituted all the evidence before the Court and upon such evidence, there would be nothing left to go to the jury, and the Court would be required to direct a verdict, then a summary judgment will be entered.”

Defendant asserts as a defense that plaintiffs had represented competitors of defendant in violation of plaintiffs’ agreement to represent defendant exclusively and not any of its competitors, and thereby plaintiffs had not exercised good faith in the performance of their contract with defendant and were not entitled to compensation; also that defendant had enclosed a check for $500 to plaintiffs’ order with a letter which stated that $500 was fair compensation for plaintiffs’ services, which check was cashed, and that this amounted to an accord and satisfaction of plaintiffs’ entire claim.

Defendant’s amended answer states plaintiffs had in their employ or as agent'one Chappelear, who represented a competitor of defendant; that he represented the Frohwitter Machine Co., the St. Joe Machine Works, and other competitors of defendant, and that this was in violation of the agreement between plaintiffs and defendant.

To this plaintiffs replied denying they represented any competitors of defendant in the sale of laundry machinery and equipment and asserted by affidavit that Chappelear was for a time employed by plaintiffs to abstract and report upon the sealed bids when opened, received by the United States department purchasing material, and that there were numerous public openings of bids at the same time and it became necessary for plaintiffs to employ persons to do the clerical work of reporting or abstracting these bids; that on or about February 15, 1940, plaintiffs for'the first time learned that Chappelear had done the same kind of clerical abstracting work for one Frokwitter, but that long before this plaintiffs had ceased to employ Chappelear to do abstracting work. There were attached sundry letters, one of which was signed by the president of the defendant company addressed to plaintiffs, dated February 7, 1940, in which he stated that he had lunch with certain men connected with the St. Joe Machine Co., who manufactured the laundry equipment sold by Frokwitter; that these men told the writer of the letter that their government work was being handled by plaintiffs. To this plaintiffs replied by letter expressing dissatisfaction with defendant’s methods of doing business since the death of Mr. Norman Ellis, who handled the business relations between the defendant company and plaintiffs. Plaintiffs denied they were handling any of the business of the St. Joe Machine Co., and that any member of the plaintiff had ever met or corresponded in any manner with either of these men, and said they had never even heard their names prior to the receipt of defendant’s letter. They also reminded defendant that they had asked if it had any objection to Chappelear furnishing abstract service of bids to Frokwitter, and of being informed by defendant that it did object because it felt particularly bitter against Frokwitter because of certain reasons attending his leaving defendant’s company; that receiving this information, plaintiffs requested Chappelear to discontinue his services to Frokwitter. Defendant’s letter in reply virtually admitted it had not correctly stated the conversation between the men of the St. Joe Machine Works and, in effect, offered an apology.

There are other letters with reference to the account between the parties and also as to the character of Chappelear’s work. Other letters follow with reference to the account between the parties. In a letter dated March 2, 1940, from plaintiffs to defendant, it was again stated that Chappelear had done some work for plaintiffs as an outside bookkeeper on a part time basis; that though he had had desk room in plaintiffs’ office, he had established his own office in recently rented quarters. The letters are quite lengthy and it would serve no useful purpose to give their contents in detail. Defendant’s affidavit of merits stated no facts which, if presented as evidence upon a trial, would tend to prove that plaintiffs had breached their agreement with defendant. It contained conclusions and charges and hearsay statements only. The trial court correctly found that it clearly appeared from the letters that Chappelear was not the agent of plaintiffs, nor did he represent any competitor on behalf of plaintiffs.

The statute stating the requirements for the entry of a summary judgment is found in paragraphs 1 and 2 of Supreme Court Eule 15. Ill. Rev. Stat. 1939, ch. 110, par. 259.15 [Jones Ill. Stats. Ann. 105.15]. It prescribes that “The affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the plaintiff’s cause of action is based; . . . shall not consist of conclusions but of such facts as would be admissible in evidence; and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto.” And “Affidavits of merits to prevent the entry of a summary judgment shall be drawn in the same manner as the affidavits mentioned in the foregoing paragraph of this rule. ’ ’ The affidavit of merits presented by defendant failed in all respects to meet the requirements of this rule. Roberts v. Sauerman Bros., Inc., 300 Ill. App. 213, 216, 217; Wainscott v. Penikoff, 287 Ill. App. 78, 82. In the latter case it was said the affidavit of merits must set forth “evidentiary facts” and not denials in general terms.

The remittance of $500 did not amount to an accord and satisfaction of plaintiffs’ claim. The letter of February 7, 1940, enclosing the check to plaintiffs merely refers to the $500 enclosure as the amount “which we believe is fair compensation for your past services to us. . . .” To this plaintiffs replied that it was not satisfactory; that the records of defendant would show that many times this amount was legally due, and demanded the balance due be forwarded to plaintiffs. Where there is no dispute as to the facts, a payment of part of a balance due is not an accord and satisfaction. Seidman v. Chicago Eye Shield Co., 267 Ill. App. 77. To constitute accord and satisfaction the offer must be accompanied by a declaration that if the party to whom the offer is made takes it he does so in satisfaction of his demand. Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244, 247. The trial court correctly held that the check in question was not sent on such condition. There was merely an expression of an opinion that defendant thought that was all plaintiffs were entitled to because defendant had some supposed grievance. When plaintiffs accepted the check no implied release of defendant arose.

The allowance of the motion for summary judgment for $2,042.78, and the order that the balance of the claim stand for trial, was proper and it is affirmed.

Affirmed.

O’Cohhor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matchett Mil Presiding Justice O’Connor Mr. Justice McSurely

text:
    Sidney Kanne, Minor, by Abraham S. Kanne, His Guardian et al., Appellees, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 41,692.

      McSurely, J., dissenting.
    Opinion filed June 9, 1941.
    Hoyne, O’Connor, & Rubinkam, of Chicago, for appellant; John C. Melaniphy, of Chicago, and Nathaniel Rubinkam, of counsel.
    Ben A. Stewart, and Miller, Kamenear & Margolis, both of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

In a suit to recover double indemnity under a combination life and accident insurance policy, there was trial by jury with verdict for defendant. On plaintiffs’ motion judgment notwithstanding was entered in favor of plaintiffs for $2,200.

The procedure was under section 68 (3a) of the Civil Practice Act (Smith-Hurd Ann. Stats., ch. 110, par. 192, p. 681 [Jones Ill. Stats. Ann. 104.068]), and Rule 22 of the Supreme Court (Smith-Hurd Ann. Stats., ch. 110, § 259.22, p. 547 [Jones Ill. Stats. Ann. 105.22]).

For reversal defendant argues error in excluding evidence offered by it and in entering judgment notwithstanding the verdict.

The evidence excluded was a document issued by the Department of Public Health of the State of California, where the insured died August 27, 1938. It is designated “Standard Certificate of Death.” Complying with a provision of the policy and by request of defendant this certificate was submitted to defendant by plaintiffs with their proofs of claim. It is argued it should have been admitted as an admission against interest, citing Ziolkowski v. Continental Casualty Co., 263 Ill. App. 31, 40, 41. The certificate is not signed by any physician. It is certified by the coroner of El Dorado county in the State of California. It states the death of the insured, Lillian Garfinkle. It states there was no autopsy, and also states further matters which are purely hearsay. The certificate was not necessary on this trial to establish death of the insured which was admitted. It is unlike the document considered in the Ziolkoioski case in that the evidence there offered had been submitted to the defendant'voluntarily by the plaintiff and without demand or contractual obligation to do so. In Plano Foundry Co. v. Industrial Commission, 356 Ill. 186, 193, the Supreme Court held a similar certificate issued by the authorities of this State inadmissible. The opinion says:

“The respondents offered in evidence the certificate of death signed by Dr. Groner. Objection made by the petitioner was sustained and the certificate was not permitted to be put in evidence. Dr. Groner was the coroner and not the attending physician. No autopsy was performed. It is obvious that his certificate was based upon the proceedings of the coroner’s inquest. It is said that this certificate was competent evidence under the provisions of the Health act. (Cahill’s- Stat. 1933, p. 1530; Smith’s Stat. 1933, p. 2209.) The doctor ’s statement as to the cause of death was mere hearsay; based upon an ex parte proceeding, in which the coroner’s verdict was not competent as evidence in this proceeding. (Cameron, Joyce & Co. v. Industrial Com. 324 Ill. 497; Spiegel’s House Furnishing Co. v. Industrial Com. 288 id. 422.) We are not deciding that a death certificate made by an attending physician may not under some circumstances be competent evidence in some classes of cases, but in the case at bar it was not error to refuse in evidence the death certificate. ’ ’

The controlling question is whether the trial court erred in entering judgment notwithstanding the verdict. The statute provides for this where the court decides “as a matter of law that a party requesting the directed verdict was entitled thereto.” The rule provides this power “may be exercised in all cases where under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury.”

Neither statute nor rule has changed the law which requires issues of fact to be submitted to a jury. Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471. It is only where there is, as a matter of law, no evidence to sustain either a plaintiff’s or a defendant’s claim that a judgment may be ordered notwithstanding the verdict of a jury. Wolever v. Curtiss Candy Co., 293 Ill. App. 586. If there is any evidence reasonably tending to support the defense the case must go to the jury. Valant v. Metropolitan Life Ins. Co., 302 Ill. App. 196. Citations might be multiplied. The question always is whether there is any evidence from which the jury may reasonably in the eye of the law return the verdict.

Here, the supplemental contract attached to the insurance policy provided defendant would pay additional indemnity of $2,000 on proof the insured died as the result, “directly and independently of all other causes, of bodily injuries sustained solely through external, violent and accidental means,” with a proviso “that death shall not have occurred as the result of self-destruction while sane or insane, or as the result or by the contribution, directly or indirectly, of disease or of bodily or mental infirmity,” with other provisos not here in question.

The proofs here show the policy issued to Lillian G-arfinkle (aunt of the plaintiffs) December 27, 1935, and that she died at Lake Tahoe in the State of California on August 27, 1938; that' the circumstances of her death were that on the morning of that day (as on three prior occasions) she entered a metal row boat from a pier, which extended out into Lake Tahoe; that the boat had a % H.P. outboard motor and its speed was about 5 or 6 miles an hour; that it was in good condition. About a half hour later Mr. Smith, who ran a boathouse about a mile northwest of the pier, noticed this boat at a distance of some 700 yards. It was going clockwise making circles of about 50 yards. Smith went to it in his own boat and found it empty with the motor going. He turned the motor off and the boat stopped. He stood up in his own boat, looked through his glasses and saw a black spot or object in the distance, slightly raised out of the water. He went to it and found it to be the body of the insured. The shoulders of the coat she wore stuck up out of the water. The back of the coat between her shoulders was bunched up as if it had air in it. Her feet and legs were hanging down in the water, her hair floating on top of it. (Manifestly the head under the water.) Mr. Smith pulled the body on board his boat and rowed to the pier, where Mr. Stephens helped him take the body to the shore. Artificial respiration was applied. About a quart of water in several streams came out of the mouth. Dr. Hadden arrived, applied the stethoscope, administered adrenalin and continued artificial respiration for about 30 minutes, when he pronounced her dead. There was no evidence of trauma.

. On the trial the testimony of Moore, Smith, Stephens and Dr. Hadden was taken by deposition. Dr. Shabat, testifying for plaintiff, in reply to a hypothetical question said in his opinion the person described could or might have died from drowning. Dr. Paul Schmitt, an expert for defendant, replying to a hypothetical question from defendant’s counsel and over objection, said that death could or might have been due to chronic myocarditis.

There was no eye witness as to how the insured got out of the boat and into the water. It has been held in well-considered cases that when a person in good health is found in water, dead, and nothing more is known as to the cause of death, a prima facie case of death by accidental drowning is established. In Sturm v. Employers’ Liability Assur. Corp., Ltd., 212 Ill. App. 354, this court said:

“Where a man, a few minutes after being seen apparently in good health is found under water, dead, and nothing more is known of the cause of death, the immediate conclusion arrived at is that he was drowned. As the result of common sense and common experience, that opinion is formed by the normal processes of almost instant reason, and it may be said that legally such circumstantial evidence makes out a prima facie case of accidental drowning.”

One who against his will comes to his death by drowning suffers death by external, violent and accidental means. Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 Fed. 945. In many such cases judgments based on findings of the court or verdicts of a jury have been upheld. Anderson v. Inter-State Business Men’s Acc. Ass’n of Des Moines, Iowa, 354 Ill. 538; Diets v. Metropolitan Life Ins. Co., 305 Ill. App. 507; Rosinski v. Metropolitan Life Ins. Co., 305 Ill. App. 626 (Abst.); Landon v. Preferred Acc. Ins. Co. of New York, 43 App. Div. 487, 60 N. Y. Supp. 188; Wine spear v. Accident Ins. Co., 6 Q. B. 42.

The evidence of witnesses Moore, Smith, Stephens and Dr. Hadden was taken by deposition and offered by plaintiffs. Their testimony established the facts above recited. The only evidence offered by defendant was by the expert, Dr. Schmitt. The question for our decision is whether on the whole evidence and as a matter of law any defense was presented. We are not unmindful that here (contrary to most of the cases above cited) the verdict of the jury is against the plaintiffs. Was there any evidence from which the jury could return the verdict? Manifestly this depends upon what consideration is to be given to the testimony of Dr. Schmitt. An expert witness is not permitted to guess, surmise or conjecture. Keefe v. Armour & Co., 258 Ill. 28, 33, 34; Lyons v. Chicago City Ry. Co., 258 Ill. 75, 80. The opinion of an expert is to be allowed only if it is based on and supported by facts in evidence. Rowman v. Woodway Stores, 345 Ill. 110, 116. Mere surmise, guess or conjecture is never regarded as proof of a fact, and a jury will not be allowed to base a verdict thereon. Wallace v. Tudelson, 244 Ill. App. 320, 329.

Dr. Schmitt gave the opinion that the death of insured might have resulted from chronic myocarditis. There is not a scintilla of evidence tending to show the insured had ever suffered from any illness or infirmity of this kind. Indeed, the medical examination required by defendant before the insurance policy was issued seems to affirmatively disprove any such theory. Dr. Schmitt said that the question resolved itself, he would say, entirely on whether death occurred before the body entered the water. He said the weight of the body was less than water, and that where an individual is alive when he strikes water it is natural that water will enter both the lungs and through the swallowing process into the stomach, and by displacing the air in the stomach and in- the lungs the water increases the specific gravity of the body; or, said he, “The body weighs more than water does per unit of measure, and therefore will sink below the water level, it will go down.” There is not a scintilla of evidence in this record to show whether the body of insured went up or down when it touched the water. There is not a scintilla of evidence which shows whether clothed as the insured was at the time she reached the water, her body would sink or rise, whether alive or dead. In so far, therefore, as Dr. Schmitt attempted to draw any inference in this regard, there was no evidence in the record on which his opinion could be based.

Dr. Schmitt undertook to draw the same inference from the fact there was no proof that the body of the insured, when recovered, disclosed any congestion or hemorrhages in the conjunctiva — that is the covering of the eyeball, which (he said) is invariably present in cases of strangulation. He said “Had drowning occurred, you would find a marked congestion of the conjunctiva and also small hemorrhages under the covering of the eyeball.” There is no evidence in the record which shows whether the facts Dr. Schmitt assumed in this respect existed or did not exist. It is apparent even to a layman that there might be differences between cases of strangulation and drowning.

On cross-examination Dr. Schmitt said he would not be able to tell from just looking at a patient whether he had any myocarditis, acute or chronic. In order to diagnose such a case he would resort to its history or symptoms related to him by the patient, or a partial or complete examination, or require an electrocardiographic examination of the heart and an X-ray.

We hold the opinion of defendant’s expert was based purely on guess, surmise and conjecture, and the judgment notwithstanding the verdict was therefore justified. It is true we cannot weigh conflicting evidence. However, it is our duty to review the testimony and determine whether there is any evidence to weigh. There is none here for the defense.

Affirmed.

Mil Presiding Justice O’Connor

specially concurring : I agree with what is said in the foregoing opinion but I go farther and say there can be no question under the undisputed evidence but that Lillian Garfinkle came to her death by drowning and no reasonable person would have any trouble reaching this conclusion. The uncontradicted evidence shows that Lillian Garfmkle was about 34 years of age and in good health. There is not one word of evidence that in any way contradicts these facts.

The verdict of the jury in favor of defendant is in comprehensible unless it might be explained on the theory that the jury were confused by the testimony of the two doctors who gave their opinions. But plaintiffs are in no position to complain because their counsel, in his case in chief, called the doctor to give his opinion as to the cause of the insured’s death, about which there could be no difference of opinion. While as I think the verdict is incomprehensible except on the theory above stated, I am also of opinion that the defense interposed is equally incomprehensible in view of the fact that no evidence was offered except the testimony of the doctors who gave their opinions in response to hypothetical questions.

Mr. Justice McSurely

dissenting: In my opinion

the trial court, in allowing the motion for judgment notwithstanding the verdict, based his conclusion solely upon the fact that the insured was found dead in the water, ignoring the conflicting opinions of the testifying physicians as to the cause of the death. ‘ ‘ On such a motion, the court is not authorized to weigh the evidence.” Valant v. Metropolitan Life Ins. Co., 302 Ill. App. 196 (citing cases).


author: Presiding Justice Friend.

text:
    People ex rel. Oscar Nelson, v. Crawford State Savings Bank. Daniel A. Uretz, Intervening Petitioner, Appellee, v. Charles H. Albers, Receiver of Crawford State Savings Bank, Appellant.
    Gen. No. 41,516.
    opinion filed March 11, 1941;
    rehearing denied June 24, 1941.
    Whitty & McGah, for appellant; William J. McGah and Francis L. Brinkman, of counsel; Harry A. Goldsmith, for appellee; Milton Perlman and Daniel A. Uretz, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full,”


author: Presiding Justice Wolfe.

text:
    James Connett, Appellee, v. Winfield S. Winget, Appellant.
    Gen. No. 9,466.

      opinion filed April 25, 1941;
    rehearing denied June 24, 1941.
    Clarence W. Heyl and Walter W. Winget, for appellant; Cassidy, Knobloek & Sloan, for appellee; John F. Sloan, Jr., of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


text:
    Baird-Swannell, Inc. et al., Appellees, v. Anthony Parish et al., Appellants.
    Gen. No. 9,653.
    opinion filed April 25, 1941;
    rehearing denied June 24, 1941.
    W. J. Parrish and Eva. L. Minor, for appellants; Charles W. Kurtz, for appellees.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


author: Justice Dove.

text:
    William H. Murphy, Appellant, v. Jarvis Chevrolet Company, et al., Appellees. Sarah Dargel, Appellant, v. Jarvis Chevrolet Company et al., Appellees.
    Gen. No. 9,619.

      opinion filed April 25, 1941;
    rehearing denied June 24, 1941.
    Johnson & Potter, for appellants; McGrath & Copeland, for certain appellee; Clarence W. Heyl, for certain other appellee; Cassidy, Knoblock & Sloan, for certain other appellee; John F. Sloan, Jr., of counsel.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Justice McSurely.

text:
    Willoughby Tower Building Corporation, Appellant, v. George Enzinger and Cecil F. Bennett, Appellees.
    Gen. No. 41,591.
    opinion filed May 19, 1941;
    rehearing denied June 13, 1941.
    Seymour J. Frank, for appellant; Sims, Handy, McKnight & Carey, for appellees; Harry L. Kinser, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


text:
    Hulda Erickson, Appellant, v. Josephine Straka and James Straka, Appellees.
    Gen. No. 9,582.
    opinion filed May 27, 1941;
    rehearing denied June 24, 1941.
    Orville R. Seiter, for appellant; Pence B. Orr, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Marie Derango, Appellee, v. M. Rubin, Appellant.
    Gen. No. 41,560.
    McSurely, J., dissenting.
    opinion filed June 9, 1941;
    rehearing denied June 24, 1941.
    John A. Bloomingston, for appellant; V. Russell Donaghy, for appellee; David A. Sehallman, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.’’


author: Justice Denis E. Sullivan.

text:
    John P. Friedlund, Appellant, v. Howard F. Bishop and Eugene H. Dupee, Individually and as Co-Partners Trading as Lyman, Adams, Bishop and Dupee, Appellees.
    Gen. No. 41,237.
    opinion filed June 25, 1941.
    Marston, Friedlund & Friedlund, for appellant; Emil N. Levin,'of counsel; Jerome J. Sladkey, for certain appellee; William J. Sheridan and Eugene H. Dupee, Jr., for certain other appellee.
   Opinion by

Justice Denis E. Sullivan.

“Hot to be published in full.”


text:
    Chicago Title and Trust Company, Appellee, v. Marie E. Fager et al., Defendants. Appeal of M. H. Kamm, Appellant.
    Gen. No. 41,672.
    opinion filed June 9, 1941.
    Joseph C. Cowen, for appellant; Shulman, Shulman & Abrams and A. Edmund 1 Peterson, for appellee; Meyer Abrams, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


author: Justice Matchett.

text:
    Herman Rothenberg, Appellant, v. Radtke Bros., Inc., Appellee. Armour and Company, Garnishee.
    Gen. No. 41,628.
    opinion filed June 9, 1941.
    I. J. Berkson and Mayer Goldberg, for appellant; Charles T. Shanner, for appellees.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


text:
    People of the State of Illinois, Defendant in Error, v. J. Livert Kelly, Plaintiff in Error.
    Gen. No. 41,646.

      opinion filed June 9, 1941;
    rehearing denied June 23, 1941.
    Howard D. Geter and Jos. E. Clayton, Jr., for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Mrs. Velma Maechtle, Appellee, v. Checker Taxi Company, Appellant.
    Gen. No. 41,655.
    opinion filed June 9, 1941;
    supplemental opinion filed and rehearing denied June 23, 1941.
    Julius Jesmer, for appellant; Julius Jesmer and Chester L. Harris, of counsel; Klein, Harrow & Wilkinson and Andrew J. Farrell, for appellee; Arthur W. Klein and John O. Wilkinson of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Della J. Lyndon and Mary E. Anderson, Appellees, v. Trust Company of Chicago, Appellant.
    Gen. No. 41,669.
    opinion filed June 9, 1941;
    rehearing denied June 23, 1941.
    March & Bossiter, for appellant; Benjamin F. March, Lyle H. Bossiter and W. D. Sellers, of counsel; Edward S. Coath, for appellees; John J. Lyons, of counsel.
   Opinion by

Justice Matchett.

“Not to be published, in full.’’


text:
    Lawrence Natali, Appellee, v. Amelia Natali, Appellant.
    Gen. No. 41,777.
    opinion filed June 9, 1941;
    rehearing denied June 23, 1941.
    Elmer N. Holmgren, for appellant; Julian C. Byer, of counsel; Maximilian J. St. George, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Justice McSurelt.

text:
    Catherine Sweglo and Goldie Steinberg, v. Winnie Mikolon et al. Minnie Mikolon, Appellee, v. John Prostka and Ludwika Prostka, Appellants.
    Gen. No. 41,695.
    opinion filed June 10, 1941.
    Thaddeus E. Kuflewski, for appellants; Ernest Saunders, for appellee.
   Opinion by

Justice McSurelt.

“Not to be published in full.”


author: Mr. Presiding Justice Wolfe

text:
    People of the State of Illinois ex rel. Ethel Shippey Rude, Administratrix of Estate of P. N. Shippey, Deceased, Appellee, v. County of LaSalle, Illinois and Board of Supervisors of the County of LaSalle, Illinois, Appellants.
    Gen. No. 9,628.

      Opinion filed April 25, 1941.
    Rehearing denied June 26, 1941.
    Parke H. Daugherity, of Streator, and Taylor E. Wilhelm, State’s Attorney, for appellants.
    Tom W. Smurr, of Ottawa, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The People of the State of Illinois ex rel. Ethel Shippey Rude, administratrix of the estate of P. 1ST. Shippey, deceased, started suit for writ of mandamus in La Salle county, against the County of La Salle, Illinois, and Board of Supervisors of the County of La Salle, to compel the said county to pay to Ethel Shippey Rude, as administratrix of the estate of P. N. Shippey, deceased, a blind pension which was due the said P. N. Shippey during his lifetime in the sum of $821.25.

The case was tried upon a stipulation of fact, which is as follows: “That the relator was at the time of filing said petition and still is the administratrix of the estate of P. N. Shippey, that P. 1ST. Shippey on the 30th day of September, 1932, was a male person of the age of 76 years and a citizen of the United States, and has been a resident of the County of La Salle, State of Illinois, for more than ten years immediately last past before September 30, 1932; that on the 30th day of September, 1932, P. 1ST. Shippey did not have an income of $465.00 per year, that he was then married to Ethel Shippey, and their total income on said day did not exceed $1,000.00 per annum;

“That on the 30th day of September, 1932, P. N. Shippey made his affidavit and filed his application for benefits under an act of the General Assembly of the State of Illinois, entitled ‘An Act for the Eelief of the Blind,’ in force July 1,1903; that said application was made pursuant to statute, and the applicant, P. N. Shippey was thereafter examined by S. E. Parr, M.D., examiner of the blind for La Salle County, Illinois, who certified from his examination that P. N. Shippey was blind; thereafter the Board of Supervisors of La Salle County, Illinois, at their December session, 1932, by appropriate action, placed said P. 1ST. Shippey upon the blind relief rolls of said county, and ordered payments made to him, thereupon said P. 1ST. Shippey became entitled to benefits for the relief of the blind;
‘ ‘ That thereafter and until his death, which occurred September 19, 1936, said P. N. Shippey remained and was a blind person and remained and was entitled to the benefits of said act of the General Assembly of the State of Illinois, entitled ‘An Act for the Eelief of the Blind,’ and remained and was on the blind relief rolls of said county; that said blind relief pension was payable in advance in quarterly installments of $91.25 each; that the quarterly relief pension was paid to P. N. Shippey for 3 quarters covered by the period October 1, 1932 to July 1, 1933, and for the 4 quarters covered by the period October 1, 1935 to October 1, 1936, but payments aggregating $821.25 were withheld for the 9 quarters covered by the period July 1, 1933 to October 1, 1935; that no part of said $821.25 was paid to P. N. Shippey nor to anyone for him and at the time of his death said P. N. Shippey had due and owing to him the sum of $821.25 ;
“That during said 9 quarters from July 1, 1933 to October 1, 1935, the County of La Salle for want of sufficient moneys in its Blind Pension Fund did not pay any Blind Eelief pensions; but thereafter and after the death of P. N. Shippey and on or about the year 1937 the County of La Salle did pay said blind relief pensions for said 9 quarters to those pensioners from whom said payments had been withheld, and who were then living, that is to say living at the time such payments were made, but refused to pay said blind relief pension for said nine quarters or any part of the same to the administratrix of the estate of P. N. Shippey although by her requested so to do;
“That no claims of any kind have been filed or allowed in the Probate Court of La Salle County, Illinois, against the estate of P. N. Shippey, and that the relator, his widow, is now married, and was at the time of filing the petition in this cause, and that she is not blind, nor are any of the heirs at law of P. 1ST. Shippey blind; that an appropriation and levy was made by the Board of Supervisors at their 1939 September Session to pay current blind relief only, and that funds on hand are only sufficient to pay current blind relief as it becomes due quarterly.
“It is further agreed and stipulated that allegations and statements as to conclusions of law contained in the pleadings are not stipulated as being correct or true, but are to be determined by the Court;
“It is further agreed and stipulated that this cause may be heard and determined by the Court without any other or further pleadings just the same as if all the necessary and proper pleas had been filed herein; and that the issues of law to be submitted to the Court for determination are as follows, to-wit:
“First: Does a personal representative of a deceased beneficiary of blind relief under ‘An Act for Belief of the Blind,’ Chapter 23, Section 279 of Illinois Bevised Statutes 1939, State Bar Association Edition, have a right of action to enforce payment of installments of a pension which had accrued to decedent under the provisions of said ‘Act’ which payments were due and owing to him at the time of his death?
“Second: Do the heirs at law of a deceased beneficiary of blind relief under ‘An Act for Belief of the Blind,’ Chapter 23, Section 279 of Illinois Bevised Statutes, 1939, State Bar Association Edition, have a right of action to enforce payment of installments of a pension which had accrued to such deceased beneficiary under the provisions of said ‘Act’ and which payments were due and owing to him at the time of his death?
“And if the Court finds upon these propositions that the relator is entitled to enforce payment of the accrued pension, then a writ of mandamus may be issued as prayed in the petition against the defendant Board of Supervisors as prayed, but if the Court finds, upon these propositions, that the relator is not entitled to enforce payment of said pensions, then this cause shall be dismissed.
“Provided that nothing herein shall be construed so as to prevent either party from excepting to or appealing from the findings, decisions and judgment of the Court upon the hearing of this cause.
“Tom Smurr,
“Attorney for Belator.
“Taylor E. Wilhelm,
“State’s Attorney in and for La Salle County, Illinois, Attorney for the Defendants.”

The case was submitted to the trial court who found in favor of the petitioner, but also found that $182.50 of said claim was barred by the statute of limitations, but that the remainder of the amount $638.75, was due and owing and ordered the writ of mandamus to issue as prayed. It is from this judgment that the appeal is prosecuted.

From the stipulation, it clearly appears that at the time of the death of P. N". Shippev, there was due and owing him from the County of LaSalle, the sum of $821.25. The question, presented to this court for review is whether the administratrix of the estate of P. N. Shippey, deceased, could maintain a suit against the county to compel it to pay to her as such administratrix, the amount due and owing to Mr. Shippey at the time of his death. It is the contention of the appellants that the granting of the pension was purely statutory, and under the law, any right of action that P. N. Shippey may have had against the county at the time of his death, abated, and therefore, the suit cannot be maintained. Our attention has not been called by counsel to either side of this suit to any case, either in our own State, or other States where this question has been adjudicated. The granting of a pension to a blind person is a gratuity from the county and State to the person receiving the pension. It is purely statutory and unknown to common law. In the case of Wilcox v. Bierd, 330 Ill. 571, our Supreme Court discusses the question of when a right of action abates or survives, and in the opinion we find this language: “Causes of action arising from torts to the person or character, where the injury or damage is confined to the body or feelings, are not assignable. Where the right of action is so entirely personal that a person cannot by contract place it beyond his control the action will not survive. As a general rule, assignability and survivability of causes of action are convertible terms, but to this rule there are the exceptions above stated. (North Chicago Street Railroad Co. v. Ackley, 171 Ill. 100; Olson v. Scully, supra; Bradley v. Federal Life Ins. Co.,'295 Ill. 381.) It is also a well settled rule in this State that a cause of action created by statute does not survive unless declared so to do by the statute itself or unless provision for its survival is made by some other statute. Olson v. Scully, supra; Selden v. Illinois Trust and Savings Bank, 239 Ill. 67.” This case was cited with approval in Bernero v. Bernero, 363 Ill. 328;

The right that Mr. Shippey had in the $821.25, which was due him from the County of La Salle, was not assignable, but was an amount to be paid by the county for the support and maintenance of Mr. Shippey during his lifetime.

It is our conclusion that any right of action that P. N. Shippey may have had to the fund in question, did not survive to his administratrix and that the circuit court erred in ordering the writ of mandamus. The judgment of the circuit court of La Salle county is hereby reversed.

Judgment reversed.