author: Mr. Justice Dove

text:
    Herbert W. Bloomquist, Appellee, v. Axel Rehnberg et al., Appellants.
    Gen. No. 8,905.
    Heard in this court at the February term, 1935.
    Opinion filed March 22, 1935.
    Rehearing denied May 6, 1935.
    Charles S. Thomas, of Rockford, for appellants.
    Miller & Thomas and Knight & Lupton, all of Rockford, for appellee; Chas. A. Thomas, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee filed in the circuit court of Winnebago county a petition for a writ of certiorari, directed to the members of the board of fire and police commissioners of the City of Rockford, commanding them to certify a complete transcript of the proceeding's resulting in the dismissal of appellee as a patrolman of police of said city. Appellants, as members of said board, filed their return and upon a hearing, the court quashed the return and the proceedings as shown by said return and from that order this appeal has been prosecuted.

The record discloses that for several years prior to May 16, 1934, appellee served as police patrolman in the City of Rockford. On that day certain written charges were filed with appellant against appellee by the wife of appellee, enumerating six specific instances of drunkenness, as a result of which appellee was suspended from duty by the chief of police of that city. Appellee was notified of these charges by appellant and personally appeared with his counsel before the board on June 14, 1934, at which time a hearing was had. At the conclusion of the hearing, the matter was taken under advisement by the board until the next morning, June 15, 1934, at which time appellants entered an order finding that appellee was guilty of conduct unbecoming a police officer and ordered his discharge from the service. The order specifically finds that appellee was drunk on May 10, 1934, and on March 5, 1934; that while drunk on this latter date at Mitchell’s Tavern in Rockford, he participated in a fight; that in August, 1932, he was also drunk and forced his family out of his home and in the summer of 1929, while drunk, he drove his automobile on the sidewalk on Seventh street in the business district of Rockford.

It is contended by appellee that the charges on which the hearing was based did not accuse appellee of neglect of duty, absence from duty or conduct unbecoming an officer and that the finding of the board did not show that appellee’s drunkenness occurred while he was supposed to be on duty. In our opinion a police officer cannot avail himself of the defense that his misconduct occurred during the time that he was not on active duty. In Joyce v. City of Chicago, 216 Ill. 466, it was held that it was not essential to the removal of an officer, such as appellee, for cause that the offense for which he was removed was committed while the officer was acting strictly within the line of his duty as such officer. In this connection, the court in its opinion said: “It would hardly be urged that a construction of the statute would be justified which would require the commission to retain a murderer or burglar in the classified civil service simply because he was off duty at the time the murder or burglary was committed and was not acting in the line of his duty at the time he committed one or both of said crimes.”

It is next insisted that inasmuch as appellee’s wife was an incompetent witness against her husband, she was incompetent to file with appellant the written charges, the hearing upon which resulted in appellee’s discharge from the service. In support of this proposition, counsel say there are no decisions in Illinois directly in point, but do call our attention to the case of Bell v. State, 14 Ga. App. 809, 82 S. E. 376. It was held in that case that inasmuch as a woman may not testify against her husband in a criminal prosecution charging him with adultery, neither can she make an affidavit which furnishes the basis for a warrant charging him with that offense. That case is in no way analogous to this one. In Illinois a wife cannot testify for or against her husband in a criminal proceeding. People v. Ernst, 306 Ill. 452; People v. Rogers, 348 Ill. 322. But the procedure followed in the instant case is purely statutory, and the statute simply provides that no officer or a member of the police department shall be removed or discharged except for cause upon written charges. It does not prescribe that the charges shall be sworn to or by whom such charges shall be made. All that the statute requires is that they shall be written. It does not require that the person making the written charges should be a competent witness against the party against whom the charges are preferred, and in the absence of any such requirement we would hesitate to supplement the statutory provisions by any such requirement. The return of appellants discloses who testified in support of the charges preferred against appellee and the wife of appellee was not called or examined as a witness, but the charges were proven by four other competent witnesses. In Joyce v. City of Chicago, supra, the court said: “This proceeding is not a common law or criminal proceeding, but an investigation. While the plaintiff in error had the right to have the charge preferred against him reduced to writing and in such form that he could clearly understand the ground assigned for his removal, it was not necessary that the charge should be formulated in technical language similar to that of a declaration or indictment.” In Heaney v. City of Chicago, 117 Ill. App. 405, the court says: “Written charges must state a ‘cause’ for his removal, which must be some substantial shortcoming which renders his continuance in office or employment in some way detrimental to the discipline or efficiency of the service. But when that is conceded, a wide latitude is given to the Commission as to what will justify the separation from the service, provided only, the accused has been given the proper opportunity to know the nature of the charges, and to be heard in his own defense.”

In our opinion the wife of appellee, although for that reason an incompetent witness upon the hearing of the charges, was not. disqualified from filing with appellant the written charges which formed the basis of the subsequent hearing. Appellant was given jurisdiction of the subject matter by the statute and properly acquired jurisdiction of appellee. A written charge, as provided by the statute, was filed against appellee. It was specific and acquainted appellee with the charges, which he was called upon to meet. Appellant had jurisdiction, proceeded legally and according to the provisions of the statute, and the judgment of the trial court' in quashing the proceedings was erroneous. The judgment is therefore reversed and the cause remanded with directions to quash the writ of certiorari.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Louis Pogline and Frank Cerk, Trading as DeLuxe Cab Company, for the use of Lydia Luukkonen, Appellee, v. Central Mutual Insurance Company of Chicago, Appellant.
    Gen. No. 8,915.

      Hedrd in this court at the February term, 1935.
    Opinion filed March 22, 1935.
    Rehearing denied May 11, 1935.
    Herman C. Litchfield, of Waukegan, for appellant; Hartley E. LaChapelle, of counsel.
    Edwards, Block & Bairstow, of Waukegan, for appellee; J. E. Bairstow and John V. Mooradian, of Waukegan, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On July 3,1932, Lydia Luukkonen was injured in an automobile accident occasioned by the negligent driving of Raymond Bahling, a Buick taxicab driver, the car being owned by Frank Cerk and Louis Pogline, doing business as the DeLuxe Cab Company. Subsequently, on May 19, 1933, Lydia Luukkonen recovered a judgment in the Lake county circuit court against the owners for $2,500. Ah execution was issued on July 5, 1933, and returned by the sheriff of Lake county on October 5, 1933, “no property found.” Thereafter this proceeding in garnishment was instituted against appellant, resulting in a judgment in favor of Cerk for the use of the beneficial plaintiff and against appellant for $2,500 and the record is brought to this court for review by appeal.

The policy of insurance in force on July 3, 1932, indemnified Cerk for the negligent operation of the Buick taxicab. It was issued by appellant, covered the Buick taxicab and insured Cerk to the extent of $2,500 against liability for any injury to any person resulting from the negligence of himself or agents. It stated that it was issued pursuant to the provisions of the Motor Vehicle Law, Cahill’s St. ch. 95a, and that the liability assumed is that appellant “shall and will pay and satisfy all final judgments (subject to the company’s limit of liability expressed in the above insuring paragraph) rendered against said owner for such injuries or death and suit may be brought in any court of competent jurisdiction upon this policy of insurance by the owner of any such judgment.”

It is the contention of appellant that its policy was issued pursuant to the provisions of the Motor Vehicle Law and that the clause in the policy and statute which provides that suit may be brought in any court of competent jurisdiction upon the policy of insurance by the owner of any judgment creates a third party beneficiary contract, designates the beneficiary and that the word “may” therein should be interpreted as “shall” and as so construed the only remedy the beneficiary has of enforcing the contract made for her benefit is by a common law action and not by garnishment proceedings.

The policy issued by appellant to Cerk contained the requisite statutory provisions, insuring the owner of the automobile against any liability for any injury to any person resulting from the negligence of the owner or his agent in the operation of the car. It obligated appellant to pay and satisfy any final judgment rendered against the owner for any such injury. The inquiry in this garnishment proceeding is: "What, if anything, is due from the garnishee to Cerk under the terms of this contract of insurance? The rule in this State is that a judgment creditor by garnishment proceedings may recover only such indebtedness as his debtor might recover in an action of debt or in an action in assumpsit against the garnishee. Wold v. Glens Falls Indemnity Co., 269 Ill. App. 407. Appellant concedes this to be the law, but insists that inasmuch as the statute further provides that a policy of insurance given thereunder shall provide that suit may be brought in any court of competent jurisdiction upon such insurance policy by the owner of such judgment, that it is not liable in this proceeding, the remedy of the owner of the judgment being an action at law upon the insurance policy. All the statute says is that suit may be brought by the owner of the judgment upon such policy. We do not believe that it was the intention of the legislature or of appellant or the insured in this policy to restrict the owner of the judgment in the pursuit of any remedies that might be open to him, nor is there any reason suggested why the word “may” as used in the statute and in the policy should be construed to mean “shall.” No rights are taken away from appellant by permitting the owner of the judgment to institute garnishee proceedings. She can only recover such indebtedness as Cerk might have recovered in an action upon the contract of insurance. The failure of appellant to pay the judgment rendered against Cerk was a breach of the condition of its contract and by reason thereof appellant became indebted to Cerk for the full amount of its policy, for the recovery of which Cerk could have maintained an action. Nolan v. Illinois Automobile Ins. Exchange, 219 Ill. App. 531.

In Bartkowski v. Commercial Casualty Ins. Co., 275 Ill. App. 497, it appeared that Stephanie Block had recovered a judgment against John Bartkowski for injuries received by her by reason of the negligent operation of an automobile owned by Bartkowski. The Commercial Casualty Ins. Co. had issued a policy of insurance to Bartkowski, which insured him from liability imposed by law on account of injuries suffered by any person by reason of the negligent operation of his automobile and a clause therein provided that an action may be maintained by the injured person against the company, under the terms of the policy, for the amount of the judgment, not exceeding the amount of the policy. Stephanie Block, as beneficial plaintiff, instituted garnishment proceedings against the Insurance Company to recover the amount of her judgment against Bartkowski, and the company there contended that garnishment would not lie, and that the judgment creditor should have brought her suit directly against the company under the provisions of the policy. In holding otherwise, the court said: “The garnishee earnestly insists that Stephanie Block could not proceed against it except under clause ‘O’ of the policy, which it points out afforded her a direct right of action against the insurer for the amount of her judgment against the assured. It is true that, under the terms of the policy, she had the rig’ht to maintain an action directly against the insurance company to enforce her judgment against Bartkowski because of his insolvency, but we are constrained to hold that such right of action was not exclusive. The garnishee while conceding in effect the beneficial plaintiff’s right to the payment of her judgment, in the absence of proof of fraud, if she had proceeded directly against it as provided in clause ‘C’ of the policy, asserts that it is fearful that if the judgment in this cause is affirmed it will be compelled to pay the amount of same to Bartkowski, the nominal plaintiff, who has suffered no loss and who would in all likelihood retain the amount so paid. It asserts further that it would in that event be subjected to another action by Stephanie Block under the insolvency provision of the policy. This position is untenable and defendant may relieve itself of any anxiety in that regard by paying the amount due under the judgment to the beneficial plaintiff and it will be fully protected under the law. We fail to perceive what particular difference it makes to the company whether the beneficial plaintiff’s judgment against the assured is enforced through garnishment proceedings or through direct action by her against the company. In no event could it be compelled to assume the liability of this judgment and meet its obligation more than once.”

Counsel for appellant insist that in the Bartkowski case the policy provided for a direct right of action by a third party on the policy, only in event of bankruptcy or insolvency of the assured, while in the instant ease there is no such limitation, and furthermore that the contract in the Bartkowski case was a voluntary negotiation of the parties, while here the contract is a restatement of the statutory provisions and was involuntary in the sense that assured was obliged, in order to remain in business, either to enter into a bond or procure insurance as provided by the statute. In our opinion the instant case is not distinguishable from the Bartkowski case and there is no merit in appellant’s contention. As stated in the Bartkowski case, we do not believe the provision of the policy to the effect that the beneficial plaintiff here could have maintained an action directly against appellant to enforce her judgment against Cerk precludes her from maintaining this proceeding. The right of action given by the policy and the statute are not exclusive and we are unable to see what particular difference it makes whether the beneficial plaintiff’s judgment against Cerk is enforced through this proceeding or through direct action against appellant.

It is not insisted that appellant has any defense on its policy against the assured, Frank Cerk, or that it is not indebted to him under the provisions of its insurance contract and under the authorities the judgment appealed from should be affirmed. Jackson v. Bankers Indemnity Ins. Co., 277 Ill. App. 140 (certiorari denied by the Supreme Court).

Judgment affirmed.


author: Mr. Justice Huffman

text:
    Agnes G. Dwyer and Lou R. Anderson, Trading as Dwyer & Anderson, Appellees, v. American Railway Express Company, Appellant.
    Gen. No. 8,879.
    Heard in this court at the February term, 1935.
    Opinion filed March 22, 1935.
    Rehearing denied May 6, 1935.
    C. H. Linscott, of Rockford, for appellant.
    Hall & Dusher, of Rockford, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellees were engaged as partners in the jewelry business in the City of Rockford. On August 26, 1924, they delivered to appellant company a package containing diamonds, consigned to Trachtenderg and Spritzker, of Chicago, Illinois.

The package was lost after delivery to appellant, and suit was instituted by appellees in the circuit court of Winnebago county, to its April term, 1925. The defense urged by appellant was that appellees placed a value of $50 upon the contents of the package delivered by them as aforesaid.

The cause came on for trial before the court without a jury, at the January term, 1934. Judgment was rendered by the court in favor of appellees, for the sum of $778. Appellant brings this appeal, urging reversal upon the grounds that its liability under the contract was limited to $50, and that appellees at the time of making shipment had knowledge of the fact that that value was placed upon the goods shipped.

It appears from the evidence of appellees that they were kept provided with a book by appellant containing printed blank receipts of appellant company, which were in general use and which appellees were in the habit of filling out and presenting to appellant’s agent for his signature when he would call to receive a package. It further appears that appellees would pack and prepare the package for shipment. They had engaged in this custom for several years. The terms and conditions on which the appellant received the property for transportation were clearly expressed in its receipts and receipt books, and not in any way calculated to escape attention. The evidence discloses that the receipt in this case was in the handwriting of Agnes Gr. Dwyer, who is now in the store with Lou B. Anderson; that Miss Dwyer prepared and sealed the package for shipment, and that she had prepared packages for such purpose upon previous occasions. Appellees always made the receipts in duplicate, appellant’s driver taking one receipt and appellees retaining the other attached in the book which appellant furnished them. The receipt in question appears to be the 37th one in the particular book in which it is contained.

The facts and circumstances in this case would indicate that appellees, being proprietors and operators of a business establishment over a period of years, were reasonably well informed in regard to doing business. They were accustomed to filling out those express receipts of appellant company. They do not deny knowledge that such receipts fixed a limitation of $50 as claimed by appellant. The evidence discloses that it was their habit and custom to place the value of $50 upon their shipments, and that they did so in this particular shipment in question.

Appellees having packed and prepared the package for shipment, there was no way for appellant to know the contents or the value thereof except by and through the representation of appellees.

Under contracts of this nature the compensation charged is to be in proportion to the risk assumed. An express company has the right to demand from a consignor such information as will enable it to decide on the proper compensation to charge for the risk, and a limitation of its liability not to exceed $50, if brought to the knowledge of the consignor, is reasonable and consistent with public policy. Oppenheimer & Co. v. United States Express Co., 69 Ill. 62. Where the shipper has knowledge of a provision in a carrier’s receipt, whereby the carrier limits its liability for loss to a specified amount, unless a different value is stated in the receipt, and a shipper with such knowledge assents thereto, he cannot recover of the carrier an amount in excess of that stipulated, on the loss of his shipment. Donchian v. Brink’s Chicago City Express Co., 217 Ill. App. 124. We understand the rule of law adopted and uniformly adhered to in this State is that a clause in a receipt given to the shipper of goods limiting and restricting the carrier’s liability, if understandingly assented to by the shipper, is binding. Boscowits v. Adams Express Co., 93 Ill. 523, 530; Produce Reporter Co. v. Adams Express Co., 176 Ill. App. 74. Whether such restrictions are understood to exist and have been assented to by the shipper is a question of fact to be determined from the evidence. We are of the opinion from the evidence in this case that appellees so knew and understood the contract with appellant.

At the time of trial appellant made tender to appellees of the sum of $50 and all costs of the trial court, which tender was refused. The judgment of the circuit court of Winnebago county in favor of appellees and against appellant for the sum of $778 is reversed and this cause is remanded to said court with directions to enter judgment in favor of appellees and against appellant for the sum of $50 and costs of that court. The appellees are to pay the costs of this appeal in this court, and the clerk thereof is directed to tax same accordingly.

Reversed and remanded with directions.


author: Mr. Presiding Justice Wolfe

text:
    W. J. Voit Rubber Company, Appellee, v. Peoria Coca Cola Bottling Company, Appellant.
    Gen. No. 8,877.

      Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    E. E. Horton, of Peoria, for appellant.
    Ira J. Covey, of Peoria, and Wayne H. Mathis, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiff is located in Los Angeles, California, and engages in the business of making and selling balls and other rubber goods. The defendant is engaged in business in Peoria, Illinois. The plaintiff bases its action against the defendant upon the allegations of its complaint, that the plaintiff sent to the defendant seven separate shipments of rubber balls between June 22 and July 11, 1933; that the shipments were accompanied by invoices stating the price and the description of the balls; that a statement, or bill, for the goods was also sent to the defendant by the plaintiff after three shipments were made by the plaintiff; that a final statement for all the balls shipped was sent to the defendant by the plaintiff; that the defendant received the balls, the invoices and the statements, and accepted, used and disposed of the said balls. The complaint charges that for the reason alleged in the complaint a contract is to be implied between the parties because of their conduct and dealings and that the defendant is liable for the invoice price of the balls.

The answer of the defendant denies the existence of an implied contract between the parties. It also alleges that the balls were not purchased by the defendant from the plaintiff, but that they were purchased from the Standard Distributors, Inc., of New York City, by written contracts between the defendant and the Standard Distributors, by virtue of which the latter undertook to furnish said balls and for which defendant was required to pay the Standard Distributors, only; that the plaintiff was not a party to the contracts between the defendant and the Standard Distributors. The answer further sets forth that the Standard Distributors, in order to perform its contracts with the defendant, entered into contracts with the plaintiff, to which contracts the defendant was not a party, for the delivery of the balls by the plaintiff to the defendant; that pursuant to the contracts between the plaintiff and the Standard Distributors, the plaintiff sold said balls to the Standard Distributors and also delivered the balls to the defendant; that the defendant did not know the plaintiff in the transaction; that no privity of contract existed between the plaintiff and the defendant; and states further that the defendant purchased the goods under an express contract with the Standard Distributors and that the plaintiff has no cause of action against the defendant.

A replication was filed by the plaintiff to the effect that notwithstanding the facts set up in the answer, the defendant is liable to the plaintiff on an implied contract.

A trial before the court without a jury resulted in the court finding in favor of the plaintiff and judgment was entered against the defendant for $1,047.37, the total of the invoice prices of the goods less freight charges on the several shipments which were paid by the defendant upon their receipt by it.

It is argued to this court by the defendant that the judgment is contrary to law. The action is not based on the contracts between the defendant and the Standard Distributors and the plaintiff does not contend or claim that it is. Nothing appears in the contracts between the defendant and the Standard Distributors to indicate that these contracts were made for the benefit of the plaintiff. (Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252.) These contracts have not been assigned by Standard Distributors to the plaintiff.

The contracts of the defendant and the Standard Distributors did not create any contractual connection or relationship between the defendant and the plaintiff. (Zibell v. Western Steel Car & Foundry Co., 152 Ill. App. 80; Peirce v. Closterhouse, 96 Mich. 124, 55 N. W. 663.) It therefore remains to be determined if the evidence shows that there was a contract of sale between the plaintiff and the defendant evidenced by, and to be implied from their acts as a matter of fact. It is to be observed that we have by the above statement eliminated from consideration in this case “quasi contracts,” or contracts implied by law. (People v. Dummer, 274 Ill. 637.)

It may be stated, as a general proposition, that where goods are offered for sale by one party at prices named in invoices, and the other party, knowing those prices, receives and accepts the goods and exercises acts of ownership over them, a sale to said other party at the named prices is implied. Genuine Panama Hat Works, Inc. v. Paragon Hat Co., 245 Ill. App. 531.

The only witness in the case was J. C. Brodnax, the treasurer and manager of the defendant company, who first testified as a witness for the plaintiff and after-wards testified for the defendant. From his testimony and the exhibits introduced in evidence it appears as follows: On June 10, 1933, the defendant, at the personal solicitation of A. Deitz, a representative of the Standard Distributors of New York City, entered into a written contract with the Standard Distributors under the terms of which the defendant ordered from the Standard Distributors certain posters and circulars and also “1,200 Balls at $.49 each.” “Freight allowed. ’ ’ The contract contained the following: ‘ ‘ Make checks payable only to Standard Distributors, Inc. This order subject only to terms herein and not subject to change or cancellation.” On July 3, 1933, the defendant entered into another and similar contract with the Standard Distributors for 1,200 balls at 49 (i each. The first contract provided that the Standard Distributors would furnish free to the defendant 24 balls over the number ordered in this contract, and also furnish a specialty man for two weeks. On each of the 2,400 balls thus ordered there was to be a patch bearing the words, “Drink Coca Cola in Bottles.” Mr. Deitz told the witness Brodnax that the defendant would receive the balls from a factory in Los Angeles, California.

Upon receipt of its first contract with the defendant, the Standard Distributors on June 12, 1933, sent to the plaintiff a telegram which stated, “Rush twelve hundred twenty four balls drink Coca Cola in Bottles one patch to Peoria Coca Cola Bottling Company, Peoria, Illinois. Also rush eight hundred fifty two Coca Cola balls to Coca Cola Bottling Company, Bridgeton, New Jersey, New England Coca Cola Plant. Peoria special rush.” On the same day the Standard Distributors sent to the plaintiff a requisition for 1,200 size 16 Coca Cola health balls, to bear a patch with the words, “Drink Coca Cola in Bottles” at the price of 49^ each ball. The requisition was numbered 1,538. The requisition directed the plaintiff to ship and bill direct, freight allowed.

Upon receipt of its second contract with the defendant, the Standard Distributors on July 5, 1933, sent to the plaintiff a telegram to rush by freight 1,200 additional balls to the defendant. After sending the telegram, and also on July 5, 1933, the Standard Distributors sent a requisition to the plaintiff similar in import to the first requisition. The second requisition was numbered 1,573. Both requisitions stated that all invoices must bear the requisition number of the Standard Distributors. The second requisition stated that it was a confirmation of the telegram sent to the plaintiff on July 5, 1933.

When the plaintiff received the first requisition for the 1,200 balls from the Standard Distributors, it made shipments of balls to the defendant: on June 22, 384 balls, on June 23, 648 balls, and on June 24, 168 balls. On receipt of the second telegram from the Standard Distributors, the plaintiff made shipments of balls to the defendant: on July 7,120 balls, on July 8,168 balls, on July 10, 576 balls, and on July 11, 336 balls, thus making a total of 2,400 balls shipped by the plaintiff to the defendant as shown by the invoices introduced in evidence by the plaintiff. Brodnax testified that the defendant received from the plaintiff 2,424 balls.

Each of the shipments was accompanied by an invoice which stated, “Sold to Peoria Coca Cola Bottling Company, Peoria, Illinois.” The first three invoices accompanying the first three shipments each state “Order No. 1538-39.” The invoices with the shipments dated July 7, and July 8, each state “Order No. Wire.” The invoices dated July 10 and July 11 state, “Order No. 1573.”

After the plaintiff had shipped to the defendant 1,200 balls as shown by the first three invoices, it prepared a statement, or bill dated at Los Angeles, California, June 30, 1933, for those invoices dated June 22, 23, and 24, for a total of $588, the price of the 1,200 balls at 494 each. The defendant admits receiving that statement in the regular course of mail delivery, but if it was received before or after the defendant executed the second contract with the Standard Distributors on July 5 for an additional 1,200 balls does not appear in evidence. As the last four shipments were made on July 7, July 8, July 10 and July 11, as is shown by the freight bills, it is a reasonable inference that the defendant received the statement by mail before he received any of the four last shipments by freight.

Prior to this time the defendant had not ordered any balls from the plaintiff. The defendant neither notified the plaintiff that it would not accept the balls shipped nor pay for them. The plaintiff had not informed the defendant that it had received telegrams and requisitions from the Standard Distributors from which the plaintiff inferred that the defendant would receive the balls from the plaintiff and that it would hold the defendant liable for the price of the same nor any other word that the plaintiff looked to the defendant for pay for the balls excepting the invoices sent with the goods and the bill rendered as above mentioned. Evidently, neither party gave the transaction any more attention than in the usual routine conduct of their respective business affairs.

Upon receipt of these several shipments of balls the defendant did not return them to the plaintiff. On July 31, 1933, the plaintiff mailed to the defendant a bill showing a balance of $588 for the first 1,200 balls shipped and gave the invoice numbers of the last four shipments with the amount due on each, showing in all a total due the plaintiff of $1,176. The witness Brodnax also testified that these were the balls which he had ordered from Standard Distributors, together with the 24 free balls. He further testified that Standard Distributors had directed him to send all the balls which he did not need to other Coca Cola Bottling plants, and that for all the balls so sent the defendant would receive credit memoranda. Thereupon the defendant sent 516 balls to the Danville Coca Cola Bottling Company ; on July 27,1933, the defendant shipped 288 balls to the Blythesville Coca Cola Bottling Company; on August 11, defendant sent to Coca Cola Bottling Company of Hot Springs, 204 balls; on July 29, defendant sent 804 Balls to Little Bock Coca Cola Bottling Company; on July 24 the defendant sent 24 balls to Cairo, making a total of 1,836. The Standard Distributors credited the defendant’s account with 1,836 balls, as was shown by credit slips issued by the Standard Distributors to the defendant. The remaining 564 balls the defendant retained. Some of the balls were defective, for which the defendant was not charged by the Standard Distributors. Standard Distributors sent to the defendant a bill for $217.56 less freight paid of $128.63 leaving $88.93 due for 444 balls at 49^ each. The amount of the bill was paid by the defendant to the Standard Distributors by cheek dated August 2, 1933, and a receipted statement was returned to the defendant by the Standard Distributors. The defendant also paid the Standard Distributors for circulars and posters ordered from them. A contract of sale, whether express or implied, must contain the essential elements of a contract — an offer and an acceptance of the offer. The offer must be communicated to the one who is to be the acceptor thereof, and its communication must be under such conditions that the one who receives it is aware that an offer to enter into a contract has been made to him. An implied contract in fact cannot be thrust upon a person by the courts without his consent. Unless it appears that his intention was to enter into contractual relation with another we cannot say that he has done so. It is true that where it appears that one has in fact made an offer to another person and such person, by his acts or conduct, has accepted the offer, with the understanding that an offer has been made to him, it will be held that the latter has entered into a contract. The acceptor has then spoken by his conduct and he will not be heard to deny that he has not accepted the offer; his acceptance of the offer is implied from his conduct.

As before indicated, we are of the opinion that reason and justice, under the circumstances in this case, do not dictate that an obligation should be imposed, as a matter of contract implied by law, on the defendant to pay the plaintiff for the balls without the consent of the defendant. (People v. Dummer, supra.)

The defendant had entered into an express and clear contract with the Standard Distributors for 2,400 balls. The defendant had never before June 22, 1933, received any merchandise from the plaintiff nor had any dealings with it. On the arrival of the invoices with the shipments of the balls there were Order Numbers which were strange to the defendant which did not refer to any orders given to the plaintiff. The defendant was bound by its express contract to pay the Standard Distributors for the balls which it had ordered. Defendant had been informed by a representative of the Standard Distributors that the balls would be shipped to defendant from Los Ang’eles. Defendant had done nothing to induce the plaintiff to ship the balls to it. Under the facts and circumstances in evidence, we do not believe that it would be just to hold that the defendant was bound at its peril to consider the arrival of the balls at its place of business as an offer of the plaintiff to sell them the balls.

Furthermore the telegrams and requisitions sent to the plaintiff by the Standard Distributors are to us conclusive proof that some understanding between the Standard Distributors and the plaintiff motivated the plaintiff to ship the balls to the defendant and not the expectation of the plaintiff that the defendant would by his silent acceptance, or rejection, of the goods, either bind itself to accept the balls at the invoice prices or refuse to accept the alleged offer of the plaintiff. We are of the opinion that the plaintiff must look to the Standard Distributors for a recovery of the price of the balls.

Under section 92 of the Civil Practice Act, Cahill’s St. ch. 110, If 220, this court may in its discretion, “give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief as the case may require. ’ ’

The judgment of the circuit court of Peoria county should be, and is hereby reversed and judgment for the defendant entered in this court.

Reversed and judgment here.


text:
    Cora N. Markley, Appellant, v. Edward D. McCulloch and Elwood R. Kroos, Executors of the Last Will and Testament of John H. Markley, Deceased, and Harriet M. Kroos, Appellees.
    Gen. No. 8,892.
    Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    Clarence W. Heyl, of Peoria, for appellant.
    Miller, Elliott & Westervelt, of Peoria, for appellees ; John M. Elliott and Donald Gr. Bests, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On February 15,1932, Cora N. Markley filed her bill in the circuit court of Peoria county praying for the construction of the will of her deceased husband, John H. Markley. The bill requests in particular that the intention of the testator as expressed in the fourth clause of his will be judicially determined. The complainant’s construction of the fourth clause appears from the allegations of her bill.

The bill alleges that the testator died on March 28, 1931, possessed of household furniture, mortgages, notes, cash, choses in action and other personal property, some of which was located at his home at the time of his death and the remainder in a bank safety deposit box under his possession and direct control; that by the word “chattel property” of the fourth clause of his will, the testator intended to and did bequeath to the complainant all his personal property, except the articles specifically bequeathed in the second and third clauses of his will. The executors of the will and Harriet M. Kroos, the daughter of the testator by a former marriage, were made parties defendant to the bill.

The defendants filed a joint and several answer to the bill. The answer alleges that all the personal property of the testator, other than the household furniture, automobile and a small sum of money, was not located or kept in the testator’s home, but at the time of his death was in a safety deposit box in the Central National Bank and Trust Company, of Peoria, and with the People’s Loan and Homestead Association of Peoria. The answer further alleges that the will makes no disposition of the testator’s cash on hand, stocks, bonds, building and loan stock, deposits in bank, notes and choses in action, but that the same is intestate property, and passes under the law of descent.

The first clause of the will directs that the debts of the testator be paid. The second bequeaths testator’s watch to his nephew. The third bequeaths to testator’s daughter his victrola, and also all solid silverware which belonged to the daughter’s mother during her lifetime, or to the testator.

The fourth clause is as follows: “My automobile, and all my household furniture and chattel property contained in my home, now at #204 Ellis Street, Peoria, Illinois, but wheresoever the same may then be situated, unless otherwise disposed of, I give and bequeath unto my beloved wife, Cora N. Markley, provided, that if my said wife shall not survive me, then and in that case, the property in and by this provision disposed of shall descend to my heirs as intestate estate. ’ ’

The fifth clause of the will devises in fee to the complainant two lots in Port Angeles, Washington. The sixth clause provides that any contract for the conveyance of real estate devised to the testator by his former wife, Fannie E. Markley, the mother of Harriet M. Kroos, remaining partly unperformed be completed by the executors of testator’s will, and that one-half of the proceeds of such sale or sales be paid by his executors to Harriet M. Kroos according to the last will of Fannie E. Markley, which, testator’s will states, devised to testator a one-half interest in said real estate of Fannie E. Markley.

The testator appointed Elwood Kroos, husband of Harriet M. Kroos, and testator’s friend, Edward D. McCulloch, executors of the will which contains no residuary clause.

The cause was referred to the master for findings of fact and conclusions of law. The master found that the testator died possessed of bonds, and shares of stock in corporations and building association of the par value of $6,104.68; checking account in Central National Bank of Peoria, $322.83; savings account in said bank, $735.52; certificate of membership issued to testator in Banker’s Life Association of Des Moines, Iowa, for $2,000, assigned as security for money loaned and premiums advanced, $2,581.11; household goods and Hupmobile sedan, estimated value $500; notes secured by real estate mortgage, $4,200.35; that at the time of the execution of the will, the testator was residing with his wife at a home at 204 Ellis street; that about three months before his death testator and his wife moved to 225 North Sheridan Road where he resided at the time of his death; that both of said places are in Peoria, Illinois.

The master further found that the testator for many years prior to his decease, and at the time of his death, kept a safety box No. 1073, in the Central National Bank and Trust Company of Peoria, and also for some time before and at the time of his death kept some of his valuable papers in a tin box at his home; that the complainant had a key and access to said safety deposit box, and said tin box in which she was permitted to deposit any documents or valuables.

The master further found that the certificate of stock in the People’s Loan and Homestead Association, No. 10399, listed in the inventory for 28 shares of Class E. Stock, was prior to and at the time of the death of the testator, in the possession of the association, held as collateral for a previous loan made by the association to the testator.

The master further found that a part of the personal property listed in the inventory filed in the estate was obtained by the executors from the complainant, and a part of the same from the safety deposit box in the Central National Company; that it does not appear from the evidence how the complainant became possessed of any of said personal property belonging to said estate, which she turned over to the executors; that on March 14, and March 16, 1931, complainant was in the Central National Bank and Trust Company, and examined the safety deposit box; that she testified her reason for examining the contents of said box was to get income tax papers and deeds; that the tin box kept by the testator contained deeds to property, insurance papers, fire insurance papers, and one George Markley loan stock certificate; that the complainant did not remember the various documents she obtained from said box and turned over to the executors; that objection was made before the master by the appellees that the complainant was disqualified as a witness under the statute, and her testimony was taken by the master subject to this objection.

The master also found that there is no evidence establishing the value or extent of any personal property belonging to said estate, contained in said tin box, or any other place in the said testator’s home at the time of his death; that there is no evidence establishing what, if any, chattel property was contained in the home of the testator at 204 Ellis street, at the time of the execution of his will.

The complainant, who is the appellant in this court, does not contend that the findings of fact by the master, which were confirmed by the chancellor, are not supported by the evidence in the case. We deem it fair to state that it does not appear from the evidence what papers of the testator were in the tin box and what papers were in the safety deposit box at the time of his death. Edward D. McCulloch, one of the executors of the will, testified he received some of the contracts and other choses in action which were a part of the testator’s estate from the complainant and some, he thought, were in the safety deposit box. He testified, “I could not tell from an examination of the inventory (filed in the estate of testator) what papers I received from her, and the ones I received from the bank. They were turned over to me after Mr. Markley’s death.” The evidence, we are convinced, shows that the testator had no secrets with reference to his possessions and that the complainant during the lifetime of the testator had keys to the two boxes.

The master’s conclusions of law were also confirmed by the chancellor and the final decree held that by the fourth clause of his will the testator clearly intended to bequeath to the complainant only the automobile and all household furniture then used and contained in a specific address, namely, 204 Ellis street, Peoria, Illinois, and it was clearly not the intention of the testator to bequeath to complainant all his personal property; that it was the intention of the testator to bequeath to the complainant only his automobile, household goods used by them in their home, and chattels of the same kind and character and specifically enumerated in the fourth clause; that it clearly appears from the will that it was the intention of the testator that all other personal property owned and possessed by him, except the bequests made in the second and third clauses, should pass as intestate property; that all other personal property of the testator consisting of notes, mortgages, cash, choses in action, stocks, bonds, deposits in bank, including checking and savings accounts, and all other personal property in the safety deposit box of said testator, or in the possession of the Central National Bank and Trust Company of Peoria, or the People’s Loan and Homestead Association of Peoria, Illinois, for said testator, and now in the possession of the executors of the will, is intestate property, passing to the widow and the heir according to the law of descent of the State of Illinois.

Both counsel for the parties agree that the proper construction of clause four of the will should be reached by ascertaining the intention of the testator as shown by the will, and that the controlling rule of interpretation of wills is that the intention of the testator as gathered from the whole will should control, provided it is not inconsistent with the settled rules of law; that the intention sought is not what by inference may be presumed to have been in the mind of the testator but that which he expressed by the words of his will. The whole scope of the will must be considered and every provision given due weight to ascertain the plan of the testator in the light of the facts and circumstances surrounding him, his family and property at the time the will was made. Heitzig v. Goetten, 347 Ill. 619.

It is contended by the complainant that the words chattel or chattel property have been defined by our Supreme Court as broad enough to include property of almost every description, providing the same is movable, and that therefore the words “chattel property” used by the testator in the fourth clause of his will include choses in action belonging to the testator at the time of his death; that the words of the fourth clause, “wheresoever the same may then be situated” refer to the situation of the testator’s furniture and chattel property and consequently all the personal property of the testator, including choses in action, was bequeathed by the will to the complainant no matter where the same was situated at the time of the testator’s death. It is further contended by the complainant that as the will contains no residuary clause, words and phrases used in the will which may reasonably be interpreted to pass the entire personal estate of the testator should be given that effect to prevent partial intestacy; also, that the will shows an intention of the testator, duly expressed in his will, to pass the whole of his estate and the presumption against intestacy should be applied in construing the will.

The appellees contend that the words 11 chattel property” appearing in the fourth clause of the will, of themselves, and as construed by the courts, do not include choses in action; that the words “chattel property” should be confined, in this case, to things partaking of the nature of “household furniture” under the rule of construction, ejusdem generis; that the testator meant by his will to restrict the property given to the complainant by the fourth clause to such as was located in his home wherever situated, and a description of personal property by location does not ordinarily pass choses in action. It is further contended by the appellees that the presumption against intestacy should not be applied in this case, as an aid in construing the will, because it clearly appears from the will that the testator intended to die intestate as to a portion of his estate.

The courts have been confronted with the construction of wills in some respects similar to the one under consideration and they have brought to their aid certain rules of construction of wills. We now refer to the words of the will “household furniture and chattel property.” However this may be, we are convinced from the words of the will that it was the intention of the testator to bequeath to the complainant his household furniture and chattel property contained in his home. The phrases of the will, “now at #204 Ellis Street, Peoria, Illinois,” and “but wheresoever the same may then be situated” refer to the situation of the home of the testator. The words “now” and “then” it seems to us refer clearly to the place or situation of the testator’s home. The will was evidently written by a person not unskilled in using words and drafting wills. In the third clause of his will, the testator bequeathed to his daughter, “my victrola, now situated in my home, but wheresoever the same then may be.” ■ We believe that we have construed the meaning of the words used by the testator in the fourth clause of his will according to their evident meaning and not merely from their style and manner of expression.

The testator having confined the legacy of the fourth clause of household furniture and chattel property to that contained in his home, we do not feel warranted in extending or enlarging this legacy under the presumption against partial intestacy to include such property not contained in his home, although the will does not contain a residuary clause.

A will speaks as of the time of the. testator’s death, unless controlled by a manifest intention of the testator to the contrary. Downing v. Grigsby, 251 Ill. 568. The first clause of the will bequeaths to the daughter “all solid silverware of which I may be seized and possessed at the time of my death”; the fourth clause contains the phrase, “unless otherwise disposed of.” Attention is also called to the provision of the fourth clause. We are clearly of the opinion that it must be held that the will of the testator speaks as of the time of his death.

The testator intentionally confined the legacy of his household furniture and chattel property to that contained in his home. We cannot prevent intestacy by supplying or reading an omission in a will. Foss v. State Bank & Trust Co., 343 Ill. 94. It does not appear from the evidence in the case that any choses in action of the testator, and which the complainant claims as included in the words, “chattel property” used in the fourth clause, were in the home of the testator at the time of his death. Consequently, in the present state of proof, all of the testator’s choses in action must be considered as intestate personal estate.

The sole purpose of the bill in this case is to secure a construction of the will to determine if the terms of the will bequeath to the complainant only the choses in action of the testator which were in his home at the time of his death or if the will bequeaths to the complainant all of the testator’s choses in action regardless of where the tangible, visible securities and instruments of debt were at the time of his death. There is no proof in the record what choses in action, if any, or their description, nature or value, were in the home of the testator at the time of his death. There is not a present necessity for a further construction of the will than has been given herein. There is no proof of what personal property is now in the possession of the executors of the will which is included in the terms of the will and on which it can take effect. In re Harden’s Estate, 150 N. Y. S. 743; Thompson v. Remsen, 58 N. Y. S. 424; Nicklin v. Downey, 101 W. Va. 320, 132 S. E. 735; Rothgeb v. Mauck, 35 Ohio St. 503; Woods v. Fuller, 61 Md. 457.

The appellant contends that under Buie 35 of the Supreme Court the appellees are in default, and the decree should be reversed pro forma on the call of the docket. The appellees failed to join in the notice of appeal. The same contention was made in the case of Eick v. Eick, 277 Ill. App. 329, and the Appellate Court of the First District held against the contention. Furthermore, section 76 of the Civil Practice Act, Cahill’s St. ch. 110, if 204, provides as follows: “ (2) An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court. After being duly perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected shall be deemed jurisdictional.” The failure of the appellees to join in the-appeal does not deprive this court of jurisdiction over the subject matter of the suit. It would be a strange situation if this court were bound by Buie 35 to reverse a decree of a lower court which is right and correct.

The chancellor in the decree construed the will of John H. Markley, and the final paragraph of the decree is as follows: “It is further ordered that the said bill of complaint herein should be and is hereby dismissed for want of equity.” Where a bill is filed to construe a will the court should not first construe the will and then dismiss the bill for want of equity. Hampton v. Dill, 354 Ill. 415.

That part of the decree that construes the will of the said John H. Markley is hereby affirmed. That part of the decree that dismisses the bill for want of equity is hereby reversed.

Affirmed in part and reversed in part; costs of appeal against the appellant.


text:
    Town of Ganeer, Appellee, v. Edward P. Cleary and Hartford Accident and Indemnity Company, Appellant.
    Gen. No. 8,903.

      Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    Gower, Gray & Gower, of Kankakee, for appellant.
    Varnum A. Parish, for appellee; Claude M. Granger, of Kankakee, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Kankakee county, in a suit commenced by the Town of Ganeer, county of Kankakee, Illinois, plaintiff, against Edward P. Cleary and the Hartford Accident and Indemnity Company, a corporation, defendants, upon a surety bond in the sum of $40,000 signed by Cleary as principal and the Hartford Accident and Indemnity Company as surety. The bond was given as security for the faithful performance of Cleary’s duties as treasurer of the road and bridge fund of said Town of Ganeer. Service was not obtained upon Cleary. The insurance company entered its appearance and defended the suit.

Suit was started prior to January 1, 1934, and a declaration filed. The declaration was later withdrawn and by stipulation of the parties all pleadings were in accordance with the Civil Practice Act, Ca-hill ’s St. ch. 110, If 129 et seq. The plaintiff filed an amended complaint, which sets forth the bond sued upon and seeks to recover for the shortage of Cleary in the road and bridge fund for the sum of $416.54, and for a shortage of $5,940.94 in the permanent road fund. The bond, a copy of which was attached to the amended complaint, was conditioned upon the faithful discharge by Cleary of “All the duties and trusts imposed upon him by reason of his election or appointment as said treasurer of the Eoad and Bridge Fund except as hereinafter limited.”

The Hartford Accident and Indemnity Company (hereinafter called the defendant) filed a motion to dismiss the suit on the ground “that the suit was improperly brought in the name of the Town of Ganeer, but should have been brought in the name of the Highway Commissioner of the Town of Ganeer in compliance with the statute, or, if the suit was properly brought in the name of the Town of Ganeer, the declaration was insufficient because it failed to disclose any action by the electors of the Town of Ganeer authorizing said suit.” The motion was overruled. The defendant then filed a motion to strike certain paragraphs of the amended complaint, on the ground that by these paragraphs plaintiff sought to recover money alleged to be due from Cleary as part of a special tax levied for hard road purposes, known as the permanent road fund, but that the bond was conditioned only upon his performance of the duties of treasurer of the road and bridge fund and did not cover his duties as to the permanent road fund. This motion was also overruled.

The defendant then filed an answer admitting the execution of the bond, but denied that Cleary did not faithfully discharge the duties imposed tip on him as such treasurer. It alleged that he accounted for $5,019.19, and that he was entitled to retain $76.11 as commissions and $100 for the bond premium. It denied the fulfillment of all the conditions precedent to the right of recovery, and that the plaintiff was entitled to damages claimed. The answer alleged the tender of $416.54 by the defendant to the plaintiff as the admitted shortage of Cleary in the road and bridge fund handled by him and alleged that this sum was the limit of defendant’s liability under the bond and averred that the bond was not conditioned upon Cleary’s accounting for the moneys received by him as treasurer of the permanent road account, but that a separate bond, as required by statute, should have been given for that purpose.

The case was tried on a stipulation of facts as follows:

“That on February 27, 1932, Edward P. Cleary was appointed Supervisor of the Town of Ganeer, County of Kankakee, Illinois, and as such Supervisor was ex-officio Treasurer of the Boad and Bridge Fund in and for said Town of Ganeer up until the 13th day of May, A. D. 1933, at which time he resigned.
“That Edward P. Cleary and the Hartford Accident and Indemnity Company, a Corporation, the defendants herein, executed a bond, a true copy of which is attached to the declaration herein, and that said bond thereafter was duly approved by Cecil Duguay, as Highway Commissioner of said Town of Ganeer, and filed in the office of the County Clerk of the County of Kankakee, Illinois, as required by law.
“That thereupon said Edward P. Cleary took upon himself the performance of the duties of the office of Treasurer of the Boad and Bridge Fund of the said Town of Ganeer.
“That between the 27th day of February, 1932, and the 13th day of May, 1933, there came in the hands of the said Edward P. Cleary, as Treasurer of said Boad and Bridge Fund the sum of five thousand six hundred eleven dollars and eighty-four cents ($5611.84) from the County Collector of the County of Kankakee, Illinois, being general taxes for road and bridge purposes for said Town of Ganeer.
“That the said Edward P. Cleary, as Treasurer of said Boad and Bridge Fund, has accounted for five thousand nineteen dollars and nineteen cents ($5019.19); but that the balance of said Boad and Bridge Fund received by him as aforesaid has not been accounted for or paid over to his successor; that he was entitled to retain $76.11 commission on said Road and Bridge Fund, and the further sum of $100.00 expended for bond premium, but that said last two items were wrongfully retained by the said Edward P. Cleary out of the Town Fund, of said Town of Ganeer, whereas he should be credited with said last two items on his Road and Bridge Fund and if so credited is entitled to no credit for said items on his Town Fund, and that Hartford Accident and Indemnity Company, a Corporation, has subsequent to the filing of this suit made a good and sufficient tender of $416.54, the admitted shortage in the Road and Bridge Fund, and that said tender has been kept good.
“That in the manner provided by statute there had been levied in the Town of Ganeer, prior to the appointment of Edward P. Cleary as Supervisor, a special tax for hard road purposes; that said tax had been levied and collected and was known as the Permanent Road Fund; and that said tax was received by said Edward P. Cleary after he qualified as Treasurer of the Road and Bridge Fund.
‘ ‘ That said Edward P. Cleary gave no separate bond before receiving the monies known as the Permanent Road Fund, but did give the bond, a copy of which is attached to the declaration herein.
“That said Edward P. Cleary received between February 27, 1932, and May 13, 1933, from the County Collector of said County of Kankakee, the special taxes levied and collected for hard road purposes for said Town of Ganeer and known as the Permanent Road Fund, in the sum of seven thousand thirty-six dollars and eighty-two cents ($7036.82)!
“That he has accounted for one thousand twenty-five dollars and fifty-two cents ($1025.52) of said Permanent Road Fund, and that the balance of said Permanent Road Fund received by him as aforesaid has not been accounted for or paid over to his successor; that he was entitled to retain $70.36 as commission on said Permanent Road Rund; that said last mentioned item was retained by the said Edward P. Cleary out of the Town Fund of said Town of Ganeer.
“It is further stipulated by and between the Town of Ganeer, County of Kankakee, Illinois, plaintiff and the Hartford Accident and Indemnity Company, a Corporation, defendant, that the said parties shall each have ..reserved to itself all rights to object to the materiality, relevancy, and competency of any of the facts hereinbefore set forth, and further, shall each have the right reserved to it to move that the Court or jury disregard any of said facts, said reservation to be without prejudice because of the fact that the parties have entered into this qualified stipulation.
“It is further stipulated between the parties to this stipulation that each of the parties hereto reserves the right to offer any other competent evidence in this case.”

The case was tried before the court without a jury. The defendant made a motion to have the court disregard paragraphs 6, 8 and 9 of the stipulation on the theory that the facts as set forth in this part of the stipulation do not apply to the suit in question as the defendant could be held liable only for the amount of the shortage of the treasurer in the general road and bridge fund of the township. The court overruled the defendant’s motion and entered judgment against the defendants. The amount of the debt was fixed at $40,000, and the damages at $6,357.48, together with costs of the suit. From this judgment the case is brought to this court by appeal for review.

It is first insisted by the defendant that the court erred in refusing to sustain its motion to dismiss the suit because the suit is improperly brought. The same question was before this court in the case of In re Claim of Morton v. Estate of White, 274 Ill. App. 672 (Abst.). We at that time held that the suit was properly brought as the township is the beneficiary party and the real claimant of the money sued for. It is our opinion that the motion to dismiss the suit for this reason was properly overruled.

The most serious question in this case is whether the bond given by the supervisor at the time he was elected, and filed with the county clerk pursuant to law, covers the shortage of the treasurer of what is commonly designated as the permanent road fund. ■ Cahill’s St. ch. 121, 58 (section 58 of ch. 121, SmithHurd Revised Statute) provides as follows: “The treasurer of the road and bridge fund shall receive and have charge of all moneys raised in the town or district for the support and maintenance of roads and bridges therein, and for road damages.” The section continues and states for what purposes money shall be held and disbursed by the treasurer. Part 1 of said section provides as follows: “The supervisor or clerk, as the case may be, before becoming entitled to act as treasurer, and within ten days after his election, shall execute a bond in double the amount of moneys likely to come into his hands by virtue of this Act, conditioned that he will faithfully discharge his duties as such treasurer, that he will honestly and faithfully account for and pay over, upon the proper orders, all moneys coming into his hands as treasurer, and the balance, if any, to his successor in office. Such bond shall be payable to the town or district, and shall be in such sum as the commissioner of highways shall determine. Said bond shall be approved by the commissioner of highways, and shall be filed in the office of the county clerk with such approval endorsed thereon. ’ ’

The supervisor of the Town of G-aneer in Kankakee county complied with the terms of this statute by executing the $40,000 bond in question. It is not questioned that this bond was not properly executed and filed with the county clerk before any money was turned over to Edward P. Cleary as such treasurer.

Section 112 of the Roads and Bridges Act heretofore mentioned, Cahill’s St. ch. 121, ft 121, under subd. VIII, entitled ‘1 Gravel, Rock, and Macadam — Hard Roads,” provides for the issuing of bonds and the sale of the same and the disposition of the proceeds thereof. The same under subheading “Duties of Treasurer” provides as follows: “The treasurer of the road and bridge fund of any town or district before receiving any of said fund therein provided for, shall execute a good and sufficient bond, with two or more sureties, to be filed with the town clerk or district clerk, as the case may be, for the benefit of the town or district, in double the amount which will probably come into his hands by virtue of this subdivision of this Act.” Cahill’s St. ch. 121, H122. Par. 123 continues: “The tax, when collected, shall be paid to said treasurer as fast as collected, except such rate per cent as shall be allowed for collecting the same, and said tax shall be known and kept as the permanent road fund. The treasurer shall be allowed one per cent on all of said fund that comes into his hands.”

It is the contention of the defendant that under this statute the fund derived from the sale of the bonds was a separate and distinct fund from the road and bridge fund and the treasurer was required by law to give a separate bond to protect this fund. By the stipulation it is conceded that the treasurer in this instance failed to file such bond, but the plaintiff contends that the terms of the bond given by the supervisor at the time he qualified for office is broad enough to include all the funds that came into his hands as treasurer of the township. An examination of section 52 of the Roads and Bridges Act, Cahill’s St. ck. 121, tí 58, discloses that the bond required under that section shall be filed with the county clerk; that the bond required under section 113 of the same act, Cahill’s St. ch. 121, if 122, requires the bond shall be filed with the town clerk. Evidently the legislature, in passing this law, contemplated that in some instances the town treasurer would have the custody of two separate funds: one for the maintenance of roads and bridges and for road damages, and the other for the building of permanent roads. It is our opinion that the bond in question should not be construed' as covering the treasurer’s shortage of $5,940.94 in the permanent road fund, and the court erred in rendering judgment against the defendant on this part of the plaintiff’s claim.

After the suit was started the defendant tendered the plaintiff the sum of $416.54, which it is agreed is the shortage of the treasurer in the road and bridge fund. By the stipulation of the parties it is agreed that this tender has been kept good. The defendant contends the case should be reversed to the trial court with instructions to enter judgment for the plaintiff in the amount of $416.54 and the costs of this appeal should be taxed against the plaintiff. According to the stipulation the defendant did not tender this amount to the plaintiff until after suit had been started and some of the costs accrued. Under the law, a tender to be good, the accrued costs must also be tendered at the time, if the defendant wishes to avoid the liability for the costs of suit.

The judgment of the circuit court of Kankakee county is hereby reversed, and the clerk of this court is hereby authorized and directed to enter the following judgment in this court: “It is therefore considered and ordered by the Court that the plaintiff the Town of G-aneer have and recover from the defendant the Hartford Accident and Indemnity Company, a Corporation, the said debt of $40,000.00 and said damages in the amount of $416.54. And that execution issue for the amount of $416.54, and that said debt be discharged upon the payment of said damages and costs of suit including the costs of this appeal.”

Reversed and judgment here.


text:
    Brownell Improvement Company, Appellant, v. Highway Commissioner of Town of Sumner, Appellee.
    Gen. No. 8,908.

      Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    Alfred Lubin, of Chicago, and Luther B. Bratton, of Kankakee, for appellant.
    Eva L. Minor, of Kankakee, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The Brownell Improvement Company started suit in the circuit court of Kankakee county to recover a balance they claimed was due them from the highway commissioner of the Town of Sumner in Kankakee county, Illinois. The declaration of the plaintiff consisted of the common counts. The suit is based upon an alleged contract between the plaintiff and the defendant wherein the defendant was to be furnished crushed stone at the cost of $1.53 per ton, to be used in building a hard road in Kankakee county. The residents of the Town of Sumner had voted a $40,000 bond issue for the purpose of building 15 miles of hard surfaced road in said town.

To the declaration of the plaintiff the defendant filed a plea of the general issue and also two special pleas. The first special plea alleges that the value of the material furnished by the plaintiff was more than $200, and that the defendant did not have the consent or approval of the superintendent of highways to purchase the gravel. The second plea alleges that there was no public advertisement for the purchasing of material in question as provided in the statute.

It is not disputed that the commissioner of highways entered into a contract with the plaintiff to furnish crushed stone to the township for the construction of a road. The agreed price was $1.53 per ton. The plaintiff concedes that the commissioner of highways did not advertise for bids for the purchasing of this stone, and that the county superintendent of highways did not approve of the purchasing of the material in question. The evidence shows that the commissioner of highways asked the county superintendent of roads to approve the contract of the appellant; that the superintendent in turn asked the commissioner if he had advertised for bids; that the commissioner replied that he had not; and the superintendent of roads then told the commissioner it did not look fair to the taxpayers, and that he could not approve the contract.

The first shipment of stone was made July 12, 1927. The appellant was notified by H. M. Gerdes, the township treasurer, by letter dated July 5, 1927, that he would not pay any of the orders issued by the commissioner of highways against Sumner township permanent road fund until the commissioner complied with the law. On July 25, 1927, Mr. Gerdes wrote the appellant another letter in which he stated he would refuse to pay any orders drawn against the hard road fund until the requirements of the statute regarding the construction of the roads to be built with said fund were fully complied with. He also stated in his letter that the statute had not been complied with. August Radeke was superintendent of highways for the county of Kankakee, and he was never called upon either by the plaintiff or the defendant to draw plans and specifications for the road on which,- the crushed stone was used. After the stone was delivered the commissioner of highways issued to the plaintiff 35 warrants in all aggregating $4,463.16. Bach and every one of the warrants was for an amount of approximately $199. None exceeded that amount. The case was tried before the court without a jury. The court found the issues for the defendant and entered judgment against the plaintiff for the costs of suit. The case is brought to this court on appeal.

The theory on which the plaintiff tried the case and on which it is now asking a reversal of the trial court is set forth in its brief as follows: “That at the time of the execution of the contract in question, the statute did not require a written approval of the county superintendent of highways and therefore, the knowledge and acquiescence by Radeke, the county superintendent of highways, of O’Neill’s contractual relationship with the plaintiff, without voicing any objection, together with all other circumstances in the matter, constitute an approval within the purview of the statute then in force. That the section of the statute requiring the township highway commissioner to publicly advertise for bids for the construction of a road only has application to the case where the entire construction under the bond issue, or the entire construction of one section under the bond issue is made to a general contractor and not where the county superintendent of highways permits and authorizes the township highway .commissioner to purchase material, hire all the labor and personally supervise the construction of such road. That the statute requires the county superintendent of highways to prepare plans, specifications and estimates and submit them to the township highway commissioner, and therefore, the defendant is estopped from setting up a defense that there was no publication for bids where such county superintendent has neglected to furnish said highway commissioner with plans, specifications and estimates. That the statute placing a limitation on the extent to which a township highway commissioner may contract is directory and not mandatory, and the township highway commissioner is estopped from setting up as a defense an alleged irregular exercise of his power to contract, when called upon to pay for the materials sold and delivered in good faith by the plaintiff and accepted and used by the defendant.”

The theory of the defendant is set forth in its special pleas. Sections 115, 116 and 118 of the Eoads and Bridges Act, Cahill’s St. ch. 121, H124, 125, 127, are as follows: “Whenever it shall be voted to construct gravel, rock, macadam or other hard roads or to improve dirt or earth roads and to oil treat the same or to oil treat roads in any township or district it shall be the duty of the county superintendent of highways of the county in which said township so voting is located to at once survey (or caused to be surveyed) the route of the road thus to be improved and to prepare suitable maps, plans, specifications, and estimates of the cost of the proposed improvement. The county superintendent of highways shall divide the same into convenient sections, each of which shall be numbered. The county superintendent of highways, upon the completion of said maps, plans, specifications and' estimates, shall file one copy of the same with the town or district clerk of the township wherein the proposed road is to be constructed and one copy with the commissioners of highways of said township, and in case of State aid road construction or improvement the county superintendent of highways shall also file copies of such maps, plans, specifications and estimates with the State Highway Commissioners.” “When the plans and specifications are completed, the commissioners shall advertise for sealed bids for said work, by publishing a notice thereof for at least three weeks in some newspaper published in said township or road district. If there is no newspaper published therein, then the newspaper published nearest said township or road district, and also by posting notices in at least ten of the most public places in said town or road district.” “The commissioners shall appear at thé time and place appointed, for the purpose of opening the bids and shall proceed to let the contract publicly to the lowest responsible bidder or bidders by sections, with proper specifications of the various kind of labor or material on each section, and bidders shall be required to separately state their bids for each class of work in such manner as the commissioners may provide, and each contractor shall be required to give bond with good and sufficient sureties for the performance of his contract, payable to the commissioners for the use and benefit of the town or district with the necessary specifications and stipulations on the part of the contractor entered therein: Provided, however, no contract in excess of the sum of two hundred dollars ($200.00) shall be let by the commissioners of highways in any town or district without the approval of the county superintendent of highways. Ho commissioner shall be interested either directly or indirectly in any contract relating in any manner to said road.”

We think the clear intention of the legislature in passing the aforesaid sections of the statute is mandatory in its provisions and the contract to be enforceable must be in conformity with the provisions of this statute. Highway commissioners have no powers except those conferred by the statute and they can perform no acts, nor impose any burdens upon their townships except those plainly authorized by the statute. When they undertake to perform any act which the statute does not say they may do, that act will be void. People ex rel. Road Dist. No. 5 v. Hedges, 289 Ill. 378; Ohio & M. Ry. Co. v. People, 123 Ill. 648. We are of the opinion that the commissioner of highways had no authority to enter into the alleged contract to purchase the stone without first having the contract approved by the county superintendent of highways, and publicly advertising for sealed bids.

That part of section 118 of the Roads and Bridges Act, Cahill’s St. ch. 121, fí 127, which provides that no contract in excess of $200 shall be let by the commissioner of highways in any town or district without the approval of the county superintendent of highways, is mandatory. The commissioner of highways has no authority to enter into a contract for purchasing material costing more than $200 unless he complies strictly with the statute. Evidently the commissioner of highways and the plaintiff had this section in mind when the road commissioner issued 35 vouchers, each for an amount less than $200 payable to the plaintiff. This was a mere makeshift to avoid the effect of the statute. The law will not permit a commissioner to do something indirectly that he is not permitted to do directly. Wells v. People, 71 Ill. 532.

Appellant contends that if it is within the power of the highway commissioner to make the contract, and it has been performed in good faith by the plaintiff, and the highway commissioner has accepted the benefits of the materials so delivered, a violation of any limitation is a mere irregularity and the town cannot rely upon such irregularities to avoid payment; that where such contracts are made by a township highway commissioner, he is estopped from setting np the irregular exercise of the power when called upon to pay for what he has received. The appellee does not seriously contend that this proposition of law is not correct. It insists that the highway commissioner had no power to enter into such a contract as he did with the appellant because the statutory provisions governing such contracts were not complied with. In the case of Challacombe v. Highway Com’rs, 161 Ill. App. 115, the commissioners had let a contract for the construction of a bridge, and had not complied with the statutory requirements in advertising for bids. The court in discussing the necessity for a strict compliance with the statute use this language: “Where the charter or incorporating act requires the officers of the city to award contracts to the lowest bidder a contract made in violation of its requirements is illegal, and in an action brought on such contract for the work the city may plead its illegality in defense. It is argued the failure to advertise for bidders as required by the statute is an irregularity, and that the public having used and enjoyed the bridge, the town should pay for what it would have had to pay had it been gotten in the right way; that after receiving the benefit it should be estopped from denying the validity of the contract. The .commissioners of highways have no power to contract for the building of bridges except the power conferred by the statute, and they have no power to contract in any manner other than is provided by the statute.”

The appellant has cited numerous cases in which the doctrine is applied that when the commissioners have exercised their power in an irregular way and the township has received the benefit of the contract and material furnished, the doctrine of estoppel should be applied by the court. This is no doubt a correct statement of the law and the cases support appellant’s contention, but in the case we are now considering the commissioner did not exercise Ms power in an irregular way, "but he attempted to enter into a contract that the statute did not give him authority to make, and, therefore, the contract was void and unenforceable. In the case of Dement v. Rokker, 126 Ill. 174, our Supreme Court, in discussing the presumption of the legality of contracts, use this language: 1 ‘ There is a distinction between contracts where the parties have an inherent right to contract, and contracts where there is no inherent power to contract, but the contract is purely by virtue of a special statutory authority. In the former, the contract is presumed to be lawful, and it devolves upon those who deny its validity to show that it is unlawful; while in the latter instance the reverse is true. The burden rests upon those seeking to enforce it, to show that the contract is within the statutory authority.”

The appellant argues that the defendant cannot set up as a defense that there was no publication for bids, because the county superintendent of highways neglected to prepare and furmsh plans, specifications and estimates of the road to be constructed, to the town commissioner of highways. In its printed argument as sustaining this proposition, it quotes the statute relative to approval of the county superintendent of highways of the road jobs costing more than $200. Certainly the appellant had numerous opportunities to ascertain whether or not the county superintendent of highways had prepared plans and specifications for this road work before it entered into a contract to furnish the crushed stone to the township. The appellant in furnishing material without ascertaining these facts acted at its own peril, and is barred from pleading that the township cannot defend the action on the ground that the county superintendent of highways has neglected to prepare plans, specifications and estimates of the road to be constructed.

It is our opinion that the trial court properly found that there was no valid existing contract between the plaintiff and the defendant, and that the plaintiff has no cause of action against the defendant. The judgment of the circuit court of Kankakee county is hereby affirmed.'

Judgment affirmed.