text:
    National Bond & Investment Company, Appellant, v. Leo Larsh and Porter Robley, Appellees.
    Opinion filed June 4, 1931.
    John W. Creekmur, D. E. Hoopingarner and Frank E. Doyle, for appellant.
    Francis J. Manning, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

On November 9, 1928, Leo R. Larsh, a resident of St. Louis, Missouri, executed and delivered to the Larsh-Brokaw. Motor Company a chattel mortgage on an automobile, which is the subject matter of this suit. •The mortgage was given to secure a promissory note of even date with the said mortgage. The note is payable in monthly instalments after date.' The mortgage was written on a form furnished by the appellant and contained the usual provisions of giving the mortgagor possession of the property if default was made in the payments of instalments as provided in said note and mortgage. The mortgage states that the automobile is in good repair and the mortgagor agrees to keep the same in good condition at all times at his own expense, and not to part with the possession of the property, nor to remove it from the State of Missouri. The mortgage has the usual covenants as provided in chattel mortgages. , ...

In November 1928, the Larsh-Brokaw Motor Company, who were dealers in automobiles, by H. F. Brokaw, its secretary, sold said note and mortgage to the appellant. The note and mortgage were properly assigned to the plaintiff by indorsement without recourse, on November 9, 1928. The appellant is a company that is in the business -of purchasing notes, contracts, and mortgages from automobile dealers, evidencing the time sales of automobiles by such dealers, and has offices in several cities, including St. Louis, Missouri. Mr. E. F. Hennessey was the collection manager at its office in St. Louis, Missouri, at the time of the purchase of the note and mortgage in question. On November 21, 1928, the mortgage, together with the assignment thereof, was filed for record in the office of the recorder of deeds in St. Louis county, Missouri.

In the early part of December, 1928, the car in question was brought from the State of Missouri to the State of Illinois without the plaintiff’s knowledge or consent and sold to the defendant Robley. The instalment on the note that fell dne in December, 1929, was not paid, at which time there was a balance of $141.56 dne on the note. After the default in this payment the plaintiff located the car in the possession of the defendant Robley and brought suit in replevin for the recovery of the same. The defendant claimed that he had given Mr. Carlson, the salesman for the LarshBrokaw Company, of Alton, Illinois, an order for a car similar to the one in question on December 6, 1929; that the said company delivered to him the car in question. He executed a conditional sales contract on December 8, 1929, and took possession of the car on or about that date. There seems to be no question either about the sale of the car to Robley, or that he had paid the full purchase price of the car, or that it had been in his possession from the date that he received it from Larsh-Brokaw Motor Company. At the trial of the case in the circuit court of Madison county, the jury found that the defendant Robley was entitled to the possession of the car. The court ordered a writ of retorno habendo, and. assessed the costs against plaintiffs, from which order of the court the case is brought to this court on appeal.

At the trial of the case the note and mortgage were, without objection, admitted in evidence. The statute of the State of Missouri, relative to the recording of chattel mortgages was, without objection, admitted in evidence also. The record shows the note and mortgage and the recording of the same in St. Louis county, Missouri, were in conformity to the laws of the State of Missouri, and from the time of the recording of the same down to and including the time of this suit, was a valid and existing chattel mortgage in the State of Missouri. There is no evidence in the record showing that the defendant Robley had any actual knowledge of the existence of this chattel mortgage in the State of Missouri. It appears from the evidence that he was a bona fide purchaser for value of the automobile in question.

The question for this court to decide is. whether the owner of a valid existing mortgage on chattel property recorded in the State of Missouri has a prior right over an innocent purchaser for value of the same property in the State of Illinois. Neither counsel for appellant nor appellee have cited any authority, and this court has been unable to find any case in which our Supreme Court has passed on this precise question. The Appellate Court of the Second District of this State, in the case of Armitage-Herschell Co. v. Potter, 93 Ill. App. 602, is one in which the property had been mortgaged in-the State of New York, and brought into the State of Illinois. The question arose whether attaching creditors of the mortgagor in the State of Illinois were entitled to possession of the property. The court held that the chattel mortgage was valid in the State of Illinois as long as it remained valid in the State where the mortgage was executed, and as such was enforceable in this State as against judgment creditors of the mortgagor.

In the case of Walters v. Slimmer, 272 Fed. 435, the court lays down the rule that the lien of a chattel mortgage valid in the State where the property is located follows the property into any other State to which it has been taken without the mortgagee’s consent. In the case of Mercantile Acceptance Co. v. Frank, 203 Cal. 483, reported in 265 Pac. 190; also 57 A. L. R. at page 679, in an exhaustive review of similar cases that had been decided both in the Federal and State courts of the Union, the court holds that the law of the place where the contract or mortgage is made determines its validity, and the lien of a chattel mortgage validly executed is not lost by removal of the property into another State, and the mortgagee’s rights are superior to the claims of an innocent purchaser, or an attaching creditor.

The rule holding that a mortgage valid in one State should be valid in any State, is founded upon the principle analogous to that of the rights of the owner of property stolen from him and taken, transported and sold in another State. He can follow the thief into the latter State and reclaim the stolen property wherever found, on the theory that .the thief could give no title to the stolen property. The mortgagor having no legal title to the mortgaged property could not pass title to a purchaser for the same, and the one purchasing it from the second purchaser could not procure any better title than his vendor to the property. Most States recognize this as a rule of comity among the States, although it might work a hardship on an innocent purchaser of the mortgaged property. No doubt in some cases, as in this case, this rule works a hardship upon an innocent purchaser, but it seems to us fairer and more equitable than a contrary rule. So far as we have been able to learn, all but four of our States follow this rule.

" The court finds that the note and mortgage in question was a valid and existing mortgage in the State of Missouri and the appellants as assignee of the note and mortgage were entitled to the possession of the automobile in question. It is therefore ordered that the judgment of the circuit court of Madison county, Illinois, is hereby reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    John J. Post, Appellee, v. William Hightower, Appellant.
    Opinion filed June 4, 1931.

      Barnabas F. Sears, for appellant; McGIlynn & McG-lynn, of counsel.
    Harold J. Bandy and Philip Gt. Listeman, for appellee. .
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellee, herein named plaintiff, secured a verdict against the appellant, herein named defendant, in an action on the case wherein the declaration alleges that the defendant, “by and through his agent and servant,” negligently drove his automobile against the plaintiff, causing personal injuries to the plaintiff. To. the declaration the defendant filed the plea of the general issue and a plea denying that, at the time in question, the defendant was operating his automobile by and through his agent and servant. The trial,court overruled the defendant’s motions for a directed verdict.. The sole ground of error urged by the defendant is the overruling of. his motion made at the close of all of the evidence in the case.

To sustain his contention the defendant argues two propositions: (a) There is no evidence in the record fairly tending to sustain the allegation of the declaration that the driver of the defendant’s automobile was the agent or servant of the defendant; (b) The evidence clearly shows that the relation between the driver of the defendant’s automobile and the defendant was that of bailor and bailee, and the defendant is not liable for the negligent acts of his bailee.

The plaintiff controverts both of these propositions and contends that as the evidence proves defendant’s ownership of the automobile when the accident happened, that there is a presumption equivalent to a prima facie case, that the driver of the automobile was the agent of the defendant and acting within the scope of his employment at the time the accident occurred.

On motion to direct a verdict, the rights of the person making the motion must be determined as they existed when the motion was made. Neither the trial court, nor this court on review, can weigh the evidence, but the evidence is to be viewed in the light, including all legitimate inferences that may be drawn therefrom, most favorable to the adverse party. It is the duty of the court to determine, under this rule, whether or not there is any evidence in the record fairly tending to prove the allegations of the declaration. (Condon v. Schoenfeld, 214 Ill. 226; Thayer v. Bolender, 250 Ill. App. 16; Hansell-Elcock Foundry Co. v. Clark, 214 Ill. 399.) The motion raises “a naked legal question whether or not there is any evidence in the record fairly tending to support the plaintiff’s cause of action.” (Chicago City Ry. Co. v. Martensen, 198 Ill. 511, 512.) If there is a failure to prove a necessary element of the plaintiff’s case, by the plaintiff to be proved, the motion must be sustained. (Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387.)

In the case of Nelson v. Stutz Chicago Factory Branch (supra), and White v. Seitz, 342 Ill. 266, the Supreme Court held that the liability of the owner of an automobile when negligently driven by another person rests upon the relationship of principal and agent, or master and servant, existing between the owner and the driver who must be acting within the scope of his authority as such agent or servant at the time of the accident caused by the driver’s negligent driving. If the proof in the record fails to establish the necessary element of the agency of the driver of the automobile, acting within , the scope of his employment, the case must fail, as is decided and clearly pointed out in the Nelson case (supra).

This accident occurred on May 25, 1929. The plaintiff was on a public highway, which extends easterly from East St. Louis toward Collinsville, when he was struck by the automobile of the defendant as it was being driven by one Rogier in the direction of Collinsville. The only evidence bearing on the question of the relationship of agency existing between the defendant and the driver of the automobile is the testimony of the defendant who was called as a witness by the plaintiff. The defendant testified that on the above date he was the owner of two automobiles, one of which, it is conceded, was driven against the plaintiff, causing injuries of which he complains. The testimony of the defendant further shows that he lived in •Collinsville and had the exclusive right to sell in the county of Madison the goods of the Purity Products Co., which in turn he sold to various persons who dispose of them only in defendant’s territory. The defendant would so sell goods to anyone who wished to handle them in the restricted district.

Some months before May 25, 1929, Rogier applied to the defendant to sell and distribute the products of tlie Purity Products Co. Permission was granted upon the condition that Rogier buy the goods of the defendant. The defendant testified that by the term “distribute” he meant all sales to Rogier were out and out sales. Being plaintiff’s witness, his testimony must be accepted as true and we are not called-up on to pass on or weigh the credibility of his testimony. He also testified that in each instance Rogier paid cash to the defendant for the goods before they were delivered to him. Rogier and the defendant were life-long acquaintances and the defendant permitted Rogier to use the automobile in question while selling such goods and Rogier had been so using the car for some months before the accident, and has continued to use the car since the accident the same as before. Rogier bought the gas and oil for the car, kept and maintained it, and kept it in his garage part of the time, and. upon numerous occasions it was kept in the defendant’s garage.

The defendant further testified that he never paid Eogier any money for goods of the company which Eogier sold; that he had no power to discharge Eogier, but could discontinue selling goods to Eogier, in which' event Eogier could not buy any such goods in Madison county; that after he sold Eogier the goods they were off his hands. The defendant did not determine the number of hours Eogier worked, had no control over Eogier’s movements while selling, and did not know where Eogier would go to sell the goods, except that Eogier had to sell the goods in the defendant’s-territory. As he knew Eogier, and because the more goods Eogier sold the more he would buy of the defendant, he loaned the automobile to Eogier, who kept it and maintained it, and who used it for pleasure as well as for business purposes.

The evidence shows further that the defendant had general supervision of the sales of the products of ' the Purity Products Co. in Madison' county; that Eogier had been in Granite City on the day of the accident selling the goods So purchased from the defendant; that defendant could quit selling products to Eogier if his services were unsatisfactory to the defendant.

We think the undisputed evidence in the record shows that the relation of bailor and bailee existed between the defendant and Eogier, and that, confronted by the undisputed facts proved by the evidence, the inference cannot be legitimately drawn that because the defendant had the supervision of the sales in Madison county and made a profit from his sales to Eogier, and that Eogier on the day of the accident had been in Granite City selling such products, that therefore he was the agent or servant of the defendant, and that at the time of the accident he was acting within the scope of his employment as the agent or servant of the defendant. The cases of Allen v. Coglizer (Mo. App.), 208 S. W. 102; Borgmier v. Wood, 252 Ill. App. 194; Rockford v. Nolan, 316 Ill. 60, are all similar to this case and hold that a bailor is not liable for the negligent acts of his bailee.

The clerk will incorporate in the judgment of the court a finding of fact of this court as follows: The uncontradicted evidence in the case establishes the fact that the relation of bailor and bailee existed between the defendant in the case and the driver of the automobile driven against the plaintiff. The judgment of the circuit court- of Madison county is reversed.

Reversed.


author: ■ Mr. Justice Wolfe

text:
    Beatrice Egan and Janet Maule, Trading as the Betty Jane Beauty Shop, Appellants, v. Elsie Mudd, Appellee.

      Opinion filed June 4, 1931.
    John W. Freels, for appellants; Bopiequet & Freels, of counsel.
    Louis Beasley and Edward C. Zulley, for appellee.
   ■ Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from a judgment for $1,000 obtained in the city court of East St. Louis by the appellee against the appellants who were doing business as and under the name of the Betty Jane Beauty Shop. The appellants were operating under aforesaid name a hairdressing establishment in East St. Louis, and the appellee received an injury to her scalp which the jury, by its verdict, has found was negligently inflicted by the appellants while she was having her hair treated by them in their place of business.

Appellants insist that the judgment of the trial court should be reversed and the case remanded to that court, because the verdict of the jury is so excessive that it is obvious the jury either disregarded the evidence, or were influenced by passion or prejudice. The damages claimed in the declaration are loss of hair, disfiguring scars, pain, injury to the head and nervous system, impairment of earning capacity, loss of wages, and medical expenses.

As to the manner the appellee received the injury complained of, it is sufficient to state that the appellee sustained a burn on her scalp while appellants were treating her hair to effect what is known as a “ permanent wave.” Briefly stated, the desired result of the treatment in this case was brought about by a process of winding and tying strands of hair of the appellee around pencil-shaped aluminum rods, then wrapping the hair in pieces of moistened flannel over which pads to protect the scalp were fastened by clips; electric heaters, two on each of a series of wires, which were suspended from a chandelier, were then attached to the rods and the electricity turned on. Forty of such rods were applied and used by the appellants in treating the hair of the appellee and some of them were placed near the place of the burn. The appellee arrived at the shop at 8:30 o’clock on the evening of Friday, August 8, 1930, and left there about two hours later.

The appellee testified that she went home from the shop suffering from a headache and a pain in the back part of her head, and retired. Saturday morning the appellee worked in the Fulton Bag Company in St. Louis, where she was employed, and in the afternoon, being free of her employment, she went shopping. She was still suffering from headache and also stiff neck on Sunday, and in the afternoon went to bed. On Monday the appellee complained to ■ Mrs. Egan, one of the appellants, that she had been burned during the treatment on Friday. Mrs. Egan examined the burned spot, and put cold cream on it, and arranged to have Dr. Holten visit the appellee. On Tuesday Dr. Holten examined the appellee and found that she was ill from tonsilitis; that the tonsilitis was disabling,but the burn was not. The attack of tonsilitis yielded-rapidly to the treatment prescribed by the doctor and it was proved, appellee not claiming to the contrary, that the tonsilitis was not caused by or connected with the burn. Hpon the advice of the doctor, rubbing-alcohol was applied to the burn. Dr. Holten visited the appellee twice that week. On Friday, acting on his own volition, he took Dr. Van Boyd with him to see the appellee. Dr. Van Boyd testified that the burn could not have caused sufficient disability to require the appellee to go to bed. The two doctors removed the hair surrounding the burn for a space the size of a silver dollar. They both testified that the burn was then the size of a nickel or a dime piece. On Saturday the appellee called on Dr. Holten at his office and the doctor found a small amount of pus in the wound, treated it, and applied a bandage. Both of these doctors were called as witnesses by the appellants. On Monday a Dr. Griffith treated the wound and applied a bandage, but he was not called as a witness by either of the parties.

On August 22, or 23, the appellee consulted Dr. Campbell who treated the burn until it healed. Dr. Campbell was called as a witness by the appellee and testified that he found an open, infected sore, about the size of a quarter or half dollar, on the back and in the center of the appellee’s head and on a level with the tops of the ears. It was a deep burn and all the layers of the skin of the scalp were destroyed. The wound gradually made improvement under his treatment and was healed by the 29th of September. The wound remained open from August 22 until some time between September 20 and 29. The doctor was of the opinion that the wound may have become larger after the first day he saw it, due to little edges of the skin surrounding the wound sloughing off. He also testified that the wound is healed and the scar is scar tissue about the size of the end of his thumb. That scar tissue is “a peculiar and particular kind of tissue that nature supplies- to fill up the space where some other tissue has been destroyed.” “No scar tissue has hair roots or follicles in it. ” “ There is no chance of having hair in this place unless you would cut the scar out and graft skin in that had hair on it. ’ ’

The appellee exhibited her head to the jury; she testified that she suffered pain; was 22 years of age, and employed in a factory earning $4 a day.

That the appellee has lost hair, suffered pain and sustained a permanent injury to her head is conclusively shown by the evidence. Nothing appears in the record, nor is the location and character of the scar of such a nature to indicate that the jury was not warranted in finding that the scar is disfiguring. These were all elements of damages to be considered by the jury in arriving at the amount of its verdict; that they are not readily estimated in money must be conceded. The appellee lost about five days from her employment, and her medical expenses are $40. We have carefully, read the arguments and cases cited by the parties to the appeal. We do not think it can be fairly said that it is clear, as contended by the appellants, that the verdict of the jury is so excessive that it is obvious the jury either disregarded the evidence or were influenced by passion or prejudice in arriving at its verdict.

While the appellant’s witness, Dr. Van Boyd, was on the witness stand, the appellants requested that the appellee again exhibit her head to the jury to show by the doctor that the burn and shaved part of her head previously shown was not the result of the burn he saw August 14, and that the shaved space exhibited to the jury was much larger than the part affected by the burn. Objection being made by the appellee, the request was denied. It is contended by the appellants that the purpose of this proposed exhibition and demonstration was to correct the unfair, distorted or exaggerated impression of the injury being left with the jury by an unexplained exhibition. As stated by the appellants their testimony was to the effect that the shaved part of the scalp was larger than the now permanent scar. Their point is that Doctor Campbell should have been permitted to point out to the jury the scar and the shaved part of the head. We think this was quite plain without the aid of the doctor’s demonstration and no expert knowledge was required to aid the jury to see the size and location of the scar. If the jury considered that the appellee had sustained damages by reason of part of her hair being shaved off for a temporary time, we cannot say this was wrong. The ruling of the court was not reversible error. The judgment of the city court of Bast St. Louis is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Barry

text:
    Ben Woods, Administrator of the Estate of Joseph Bachman, Deceased, Defendant in Error, v. Louis Rosenstrom, Plaintiff in Error.
    Opinion filed June 11, 1931.
    Kramer, Kramer & Campbell, Harold J. Bandy and R. B. Costello, for plaintiff in error; J. J. Seeley, of counsel.
    No appearance for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error entered a motion for the dismissal of the writ of error. The Massachusetts Bonding & Insurance Company filed verified objections setting up that it had insured plaintiff in error against damages caused by the use of his automobile; that it had agreed to defend, in his name, any suit brought against him to recover such damages; that he agreed to not interfere in any legal proceeding but at all times would render all co-operation and assistance in his power in prosecuting appeals, etc.; that Joseph Bachman sued to recover for personal injuries alleged to have been caused by the negligence of plaintiff in error in the operation of said automobile; that objector defended the suit and the plaintiff therein recovered a verdict and judgment against plaintiff in error for $5,000; that objector sued out this writ of error in the name of plaintiff in error, as it had the right to do, and that a dismissal of the writ will prejudice its rights. If those facts appeared upon the record the objector would be entitled to resist the dismissal of the writ. Hanchett v. Ives, 133 Ill. 332; Anderson v. Steger, 173 Ill. 112. Objector’s relation to the suit does not appear from the record but only from the affidavit filed in support of the objections. The question as to whether objector is so prejudiced by the judgment as to entitle it to resist the dismissal of the writ must be determined from the record, and not from affidavits or other extrinsic evidence. As the record discloses no such prejudice plaintiff in error has the right to dismiss the writ. Granat v. Kruse, 213 Ill. 328. The motion is allowed and the writ of error is dismissed.

Writ dismissed.


author: Mr. Presiding Justice O’Connor

text:
    Elaborated Ready Roofing Company, Appellee, v. R. C. Hunter, Appellant.
    Gen. No. 35,143.

      Opinion filed July 6, 1931.
    Rehearing denied July 20, 1931.
    Edward E. Wilson and Joseph E. Snowuen, for appellant.
    Alfred Newton, for appellee; Alfred Newton and Joseph Rosenbaum, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

November 25, 1930, plaintiff filed its statement of claim which declared upon a promissory note and power of attorney to confess judgment. Attached to the statement of claim was what is alleged to be a copy of the note. On the same day judgment by confession was entered in favor of plaintiff and against defendant for $833.26, which sum included $105.29 for attorney’s fees. February 6, the defendant filed his petition praying that the judgment be opened up and he be given leave to defend, and in support of this filed his sworn petition. Plaintiff filed three counter-affidavits. The matter came on for hearing and the bill of exceptions recites the court heard the case on the defendant’s petition, plaintiff’s counter-affidavits, and evidence. The motion of the defendant was thereupon overruled and denied, and defendant appeals.

Plaintiff in its statement of claim alleges that “plaintiff’s claim is for money due upon a certain promissory note which is hereto attached and made a part of this statement of claim.” The document attachéd, so far as it is necessary to state the contents of it here, is “Order form. Main Office Copy. Elaborated Ready Roofing Co. . . . June 17,1930.

Grentlemen: Please enter my order for roofing and labor to be furnished for house at 3340 Michigan Avenue . . . (of which property I am the owner or have the right to contract) as follows:” Then follows a notation written in ink which apparently is the work that is to be done on the building. The document then provides: “In consideration of the full performance by the undersigned of all of the agreements herein contained, and. upon the completion of the work, as indicated by the written approval thereof by the undersigned, the company agrees to guarantee, ’ ’ etc. . . .

“Said materials and installation to cost $719.00, payable Net Cash, Sept. 15, 1930.”

Then follows a power of attorney to confess judgment, signed by the defendant, and purports to be accepted by E. Cowan, manager. From the foregoing it is obvious that the document is not a promissory note but an order from defendant to plaintiff to do some repairs on defendant’s property, for which he agreed to pay $719 provided the work was satisfactorily performed as indicated by the written approval of the defendant. Whether plaintiff furnished the material and performed the work mentioned in the order made a part of the statement of claim does, not appear from the record as it stood when the judgment was confessed.

The defendant, in his verified petition, wherein he sought to have the judgment opened up and for leave to defend on the merits, set up that on the day the judgment was entered, November 25, 1930, plaintiff caused an immediate execution to be issued and returned “not found,” so that it could begin garnishment proceedings, which it did on that day; that on January 3, 1931, a person representing himself to be an officer of court, left a copy of an execution with a person who was visiting at defendant’s home, but defendant did not learn of the judgment until he returned to his home January 17, 1931, from a hospital in Ohio where he had been a patient. The petition further set up that the defendant had a meritorious defense to the entire claim — that the plaintiff did not perform the labor or furnish the material provided for in the contract, but on the contrary plaintiff tore down and destroyed defendant’s property and refused to rebuild or replace it.

To the verified petition the plaintiff filed three counter-affidavits, all of them being substantially the same, in which plaintiff avers that the defendant was guilty of laches in moving to vacate the judgment; that the defendant “on, to-wit, December 3, A. D. 1930,” knew that the judgment had been entered against him, and that thereafter, “during the month of December, 1930, the defendant had knowledge of the said judgment”; that on November 25, 1930 (the date the judgment was entered), plaintiff began garnishment proceedings on the judgment.

It will be noted that the matters set up in the affidavits are very indefinite and uncertain as to when defendant knew of the entry of the judgment against him.

February 9, the record discloses, “This cause coming on for hearing on motion of the defendant” to vacate and set aside the judgment and that the court overruled the motion and the defendant appeals.

The bill of exceptions in the record prepared in the ordinary form, shows defendant’s petition, and the three counter-affidavits, with the customary recitals following, but in these recitals there appears to be inserted in ink a recital that the matter came on for hearing “without a jury, a jury having been waived.” It then recites that the court considered the petition and the counter-affidavits, “and after having heard the testimony given in open court” by witnesses called for both parties, “the court found the issues for the plaintiff. ’ ’ The bill of exceptions then recites that the foregoing is a full, true and complete report of all the proceedings “upon the petition of the said R. 0. Hunter, except the proceedings and evidence had, taken and offered at the trial and hearing on the foregoing case, and the rulings of the court with respect to the said petition except upon the proceedings and evidence had, taken and offered at the said trial and hearing. ’ ’

The foregoing recitals quoted are rather anomalous. We are not familiar with the practice of waiving a jury on such a proceeding. Obviously the matter was for the court and not for a jury. What issues were found by the court are rather uncertain. The only question properly before the court on such a motion was whether the defendant had set up a meritorious defense and whether defendant was chargeable with such a degree of negligence as to leave him no standing in court. Dunlap v. Gregory, 14 Ill. App. 601; Handelsman v. Clarke, 247 Ill. App. 636 (Abst.). On such a motion the question of a meritorious defense interposed is of much more importance than the question of the defendant’s diligence or lack of it. Handelsman v. Clarke, supra; Mason v. McNamara, 57 Ill. 274.

We think the defendant set up a reasonable excuse for not moving sooner. The judgment here was entered by confession. He knew nothing of the proceeding until after the judgment was entered, and a judgment by confession can be set aside after the term at which it was entered has expired, which is not generally true of other judgments.

In passing on a motion of the defendant to open up a judgment entered by confession and for leave to defend, equitable circumstances are controlling. In the instant case, if what the defendant swears to in his petition is' true — and it must be so assumed on this record — he is being mulcted out of more than $800 because he swears that the plaintiff did not repair defendant’s buildings as it agreed, but on the contrary tore them down and refused to replace or rebuild them. Plaintiff declared on a promissory note, but the copy of it attached to and made a part of the statement of claim can in no sense be construed as a promissory note. It is an order given by defendant to plaintiff to repair defendant’s property. Plaintiff ought not be permitted, under the guise of an order to repair buildings, to claim that the document is a promissory note upon which a judgment might be confessed.

We think it was proper practice, under the law, for the court to consider the counter-affidavits filed by plaintiff, touching the question of whether the defendant was guilty of laches in moving to open up the judgment. The counter-affidavits did not go to the merits of the case. Gilchrist Tramp. Co. v. Northern Grain Co., 204 Ill. 510; Hood v. Gehrs, 170 Ill. App. 230; Mutual Life of Illinois v. Little, 227 Ill. App. 436. Defendant having shown a meritorious defense, and having given a reasonable excuse for not moving sooner, the court erred in overruling his motion, and the order of the municipal court of Chicago is therefore reversed and the matter remanded with directions to open up the judgment and give the defendant a trial on the merits.

Reversed and remanded with directions.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Harry B. Smead Company, Inc., for use of The Scandinavian Seed Company and R. Wiboldt, Ltd., Plaintiff in Error, v. J. Oliver Johnson, Inc., Defendant in Error.
    Gen. No. 35,038.

      Opinion filed July 6, 1931.
    Baker, Holder, Schmidt & Kolb, for plaintiff in error.
    Townley, Wild, Campbell & Clark, for defendant in error; Charles V. Clark and Frederick D. Carroll, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Scandinavian Seed Company (hereafter called plaintiff) seeks the reversal of an adverse judgment in a garnishment suit tried by the court.

The question involved is whether plaintiff was a creditor within the meaning of this word as used in the Bulk Sales Law, Cahill’s St. ch. 121a, ¶ 1 et seq. and, therefore, entitled to notice of the sale by the Smead Company of its assets.

August 30, 1924, plaintiff sued the Smead Company, asking damages for an alleged breach of contract. April 30, 1925, while said suit was pending, the Smead Company sold all its assets to the defendant, which sale was finally consummated on or about September 15, 1925. In lieu of compliance with the Bulk Sales Law, defendant employed a certified public accountant to audit the books and accounts of Smead Company, and the claims of all creditors or claimants shown on its books were paid in full before any money was paid to the Smead Company. The plaintiff’s name did not appear either on the books of the Smead Company or on the auditor’s report, and the president of the Smead Company informed the defendant that there were no creditors not shown on the books and the auditor’s report. Defendant had no notice of plaintiff’s claim prior to the final payment of the purchase price to the Smead Company. Plaintiff had no notice of the sale.

March 13, 1926, which was after the sale to the defendant had been consummated, plaintiff had a verdict and judgment against the Smead Company for $1,898.40. Subsequently the case was retried and December 21, 1926, plaintiff had a judgment for the same amount. Execution was issued against the Smead Company, which was returned “no property found.” This action in garnishment against the defendant followed. The trial court, being of the opinion that plaintiff was not a creditor of the Smead Company entitled to notice of the sale, found for the defendant and entered judgment accordingly.

It has been held that a party holding an unliquidated claim is not a creditor within the meaning of the Bulk Sales Law, Cahill’s St. ch. 121a, ¶ 1 et seq. Superior Plating Works v. Art Metal Crafts Co., 218 Ill. App. 148; Stony Island Trust & Savings Bank for use of Michael Shea v. Stony Island State Savings Bank, 240 Ill. App. 195. A party, who was not a creditor when a transfer in bulk was made, has no standing to invoke the benefits of the Bulk Sales Act. Fulrath v. Wolfe, 250 Ill. App. 130; Lawndale Sash & Door Co. v. West Side Trust & Savings Bank, 207 Ill. App. 3.

Plaintiff argues that the term creditor should receive 1 a liberal construction so as to include one who has a claim of any sort, whether absolute or contingent. The Bulk Sales Act is in derogation of the common law and should be construed strictly in its application. There is a sound reason that it should not be applied to parties holding claims in tort, and where the claim is uncertain and contingent the claimant should not be considered a creditor. To hold otherwise would give to claimants possessing uncertain and speculative demands a power to harass and interfere with the business of persons against whom such claims are made. This construction was adopted in Superior Plating Works v. Art Metal Crafts Co., 218 Ill. App. 148, following Apex Leasing Co. v. Litke, 159 N. Y. S. 707, in which State the law is similar to ours.

Plaintiff suggests that its claim was based upon a written agreement to sell to Smead Company a certain quantity of grass seed at a specified price; that Smead Company refusing to accept this, plaintiff resold the same and that under such circumstances its claim should be held to be liquidated, citing White Walnut Coal Co. v. The Crescent Coal & Mining Co., 254 Ill. 368. The point whether or not the claim was liquidated was not involved in that case. The issue there was whether on rejection by the buyer of coal contracted to be sold the seller was justified in reselling the coal at markets other than the market at the point of delivery named in the contract with the buyer. In the following cases it has been held that the claim for the difference between the contract price of goods sold and the market value is unliquidated. Steele-Wedeles Co. v. Shoodoc Pond Packing Co., 153 Ill. App. 576; Higbie v. Rust, 211 Ill. 333; Lepman & Heggie v. Inter-State Produce Co., 205 Ill. App. 270; Robison v. Hibbs, 48 Ill. 408; Turnbull Joice Lumber Co. v. Chicago Lumber Coal Co., 152 Ill. App. 347; Marks v. American Furniture Novelty Co., 208 Ill. App. 186.

It should be noted that in the instant case the defendant endeavored in every reasonable way to see that all creditors of the Smead Company were paid in full. Had it complied with the Bulk Sales Law by securing a sworn list of the Smead Company creditors and mailing them a notice instead of paying them in full, plaintiff would not have benefited in any particular as it would not have received any notice. Its judgment was not entered against the Smead Company until nearly 15 months after the final payment by the defendant to the Smead Company.

For the reasons above indicated the judgment is affirmed.

Affirmed.

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


text:
    Albert J. Vetesnik and Pavlina Vetesnik, Appellants, v. Ernst Magull and Selma Magull, Appellees.
    Gen. No. 35,046.

      Opinion filed July 6, 1931.
    Rehearing denied July 20, 1931.
    Charles A. Churan, for appellants.
    Pines, Morse & Stein, for appellees; Alvin E. Stein, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal complainants ask the reversal of a decree dismissing for want of equity their amended bill, which sought to establish a vendor’s lien to the amount of $7,000 on certain real estate purchased by defendants from complainants. An answer was filed on behalf of defendants and the cause referred to a master in chancery whose report recommending a dismissal of the bill was approved by the chancellor.

The question presented involves the dishonesty of a real estate agent, Joseph Beck, to whom the defendants paid the purchase price for the lots but who did not turn over the same to complainants and subsequently absconded.

The record shows that complainant Albert Vetesnik became acquainted with Beck sometime in 1925 and through him had consummated at least two purchases of real estate. On and prior to October, 1926, complainants owned the lots in question, which were vacant and unoccupied. The master found that Beck first spoke to Albert Vetesnik with reference to the sale of these lots on September 15, 1926, and Vetesnik agreed to sell them. The following day complainant gave Beck an abstract of title, which was turned over to defendants, the proposed purchasers. This abstract was afterwards examined by defendants’ attorney and certain objections to the title were made. Beck reported to Vetesnik these objections, which required other deeds from the former owner of the property, and the deeds were procured and delivered to Beck. The master also found that on October 14,1926, Ernst Magull, one of the defendants, together with his attorney met Beck by appointment at Beck’s office for the purpose of closing the deal; that Beck did not notify Vetesnik that he was about to close the deal and complainants were not present. Beck had in his possession at the time a warranty deed, dated October 5,1926, conveying the property from complainants to the defendants. Defendants had previously, on September 14, deposited $400 with Beck as earnest money. At the time of the closing of the sale certain deductions were made for taxes and the balance was then paid as follows: a cashier’s check for $4,500 payable to the order of Ernst Magull, and another cashier’s check on another bank for $2,200 payable to the order of Magull, were indorsed by him in blank and delivered to Beck, who thereupon delivered to defendants the warranty deed from complainants conveying the lots to them. The deed to defendants was recorded in the recorder’s office of Cook county on the same day, that is, October 14, 1926. Beck did not report to Vetesnik that he had closed the sale, but kept the money in his own possession. Vetesnik called Beck at various times, inquiring about the progress of the deal. January, 1927, Beck told Vetesnik that the purchasers could not get the money for six months because of a loan they had made to friends. Vetesnik next called Beck in June and was told that the deal had not been closed. August, 1927, defendants commenced the construction of two bungalows on the property in question. Beck disappeared in September, 1927. Defendants did not know of any claim by complainants for the purchase price until the present bill was filed, at which time the buildings now on the premises were in process of construction.

The master found that there was no written contract between the parties; that Vetesnik delivered the deed to Beck; that defendants did not meet complainants at any time during negotiations for the sale and that when Beck appeared with a warranty deed from complainants the defendants were justified in assuming that he had proper authority to receive the purchase price; that complainants actually ratified the delivery of the deed to defendants and could not now deny the authority of their agent to receive the money.

It is significant, as tending to show knowledge on the part of complainants that the property had been sold to defendants, that while they had paid the taxes on the lots in question in 1925 and in 1926, they made no attempt to pay the taxes in 1927. It is a fair conclusion from this fact that they must have known that they no longer owned the property. The taxes payable in 1927 were paid by defendants.

A vendor’s lien is viewed with disfavor and will not be enforced unless clearly established, and will only be permitted as security for unpaid purchase money. Ross v. Clark, 225 Ill. 326.

Defendants point out that complainants had ratified the sale. In their amended bill of complaint complainants alleged that they “sold said premises to defendants for said sum of $7,000 net and in consideration of said sum complainants by warranty deed dated October 5,1926, conveyed said premises to defendants, Ernst Magull and Selma Magull, his wife,” which was afterwards filed for record October 14, 1926. Having thus admitted the sale and ratified the same, the complainants are not entitled to any lien unless the record shows that defendants have not paid the full amount of the purchase price. The record shows without contradiction that the full amount was paid by defendants to Beck. A similar question was involved in Pardridge v. Bailey & Co., 20 Ill. App. 351, affirmed in 134 Ill. 188, where it was held that: “Where the owner whose goods have been sold without authority sues the purchaser for the amount of the contract price for which the goods were sold, the sale, although unauthorized, will be regarded as ratified.” The Supreme Court said: “Plaintiffs first deny authority to sell, but by their acts concede the power of sale, but deny authority to collect the pay for the goods. This they cannot do. The power of sale, or the sale without authority, subsequently ratified, carried with it the implied power to receive payment. Had the sale been repudiated by the plaintiffs, and an action brought to recover the goods, a different question would arise.” To the same effect are Swisher v. Palmer, 106 Ill. App. 432; Morris v. Tillson, 81 Ill. 607; Sternbach v. Leopold, 50 Ill. App. 476; Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368. It has been repeatedly held that ratification operates as though authority had been originally given. Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill; 561; Butman v. Butman, 213 Ill. 104; Donason v. Barbero, 230 Ill. 138. We hold that the master correctly found that complainants ratified the delivery of the deed to defendants.

Defendants seem to argue that, while they gave authority to Beck to consummate the sale by delivery of the deed, he was not authorized to receive payment for the lots. The sale of real estate is a unit involving, at least, two things — payment of the purchase money and delivery of the deed. The acts are done simultaneously. It would be an anomaly for a seller to authorize an agent to deliver a deed to a buyer and at the same time deny the agent authority to receive the purchase price. Both acts must take place. There can be no sale if either is omitted:

The recording of the deed to defendants October 14, 1926, gave constructive notice to complainants that the sale had been made, and they did nothing about the matter except make requests to Beck for a report as to the transaction until they filed their bill almost a year thereafter. Complainants had constructive, if not actual, notice that the deal had been consummated October 14, 1926. Fitch v. Miller, 200 Ill. 170.

Complainants cite a number of cases, but we do not deem them as controlling, as in none of them did the principal clothe the agent with indicia of ownership and authority to convey the premises. Mann’s Ex’rs v. Robinson, 19 W. Va. 49, cited by complainants, states that the vendee should retain the money and the vendor the estate until the conveyance is made. In the case at bar the conveyance was made and hence the payment to complainants’ agent, was proper.

Another reason for affirming the order of the chancellor is found in the principle that, where one or two persons suffer a loss, the one whose conduct made it possible for the loss to occur must bear the consequences. Faber-Musser Co. v. Dee Clay Mfg. Co., 291 Ill. 240; Drumm Const. Co. v. Forbes, 305 Ill. 303; Otis v. Gardner, 105 Ill. 436; McCarthy v. Crawford, 238 Ill. 38. Complainants, by intrusting the warranty deed to Beck, made it possible for Beck to obtain possession of the purchase money and abscond with it. Applying the rule just stated, the consequences of Beck’s dishonesty must rest on the complainants.

We may concede that the attorney who represented the defendants at the time the sale was closed was remiss in not instructing his client to indorse the cashier’s checks payable to the vendors. If this had been done, litigation would have been avoided, but this carelessness does not change the essential elements in the transaction. They would be the same, whether the defendants paid by check or in currency. Complainants by intrusting their agent, Beck, with the warranty deed clothed him with apparent authority to consummate the sale. Their subsequent conduct showed that they ratified the same. They therefore have no right to proceed against the defendants, but are relegated to pursue their dishonest agent, Beck.

The decree was proper and it is affirmed.

Affirmed.

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


text:
    John Mowat, Appellee, v. William D. Sandel, Trading as W. D. Sandel & Company, Appellant.
    Gen. No. 35,089.

      Opinion filed July 9, 1931.
    Joseph H. Hinshaw, for appellant; Oswell Gr. Treadway, of counsel.
    Benjamin B. Morris, Emanuel M. Schwartz and Aaron R. Eppstein, for appellee; Aaron R. Eppstein, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages claimed to have been sustained by him through the negligence of the defendant in backing his truck, striking plaintiff’s automobile in which plaintiff was riding, damaging the automobile and injuring the plaintiff. There was a verdict and judgment in plaintiff’s favor for $3,000, and the defendant appeals.

The record discloses that about 5:45 p. m., February 4, 1930, plaintiff was driving his Ford automobile northwesterly on South Chicago avenue, at or near the intersection of that street and Ingleside avenue. Inglesido avenue runs north and south and South Chicago avenue is a southeasterly and a northwesterly direction. Defendant’s truck was standing a short distance east of Ingleside avenue, heading in a northerly direction at the northerly side of South Chicago avenue, and as the Ford was passing hi the rear of the truck there was a collision which damaged the Ford automobile and plaintiff claimed he was injured.

Plaintiff’s theory of the case was that his automobile was passing the rear of the truck, going about three or four miles an hour and that the truck backed up, striking the automobile. Defendant’s theory of the case was that the truck was standing still, that it did not back up; that plaintiff was driving his automobile at about 35 miles an hour, and as he was passing the truck brushed against the tail gate.

The defendant contends that the judgment should be reversed because counsel for the plaintiff in the selection of the jury by questions informed the prospective jurors that the suit was being defended by an insurance company and that defendant carried liability insurance. One of the questions put by counsel for the plaintiff to a prospective juror, and of which complaint is made, was: “Have you ever been in the insurance or real estate business?” Thereupon, counsel for the defendant suggested that the court go into chambers, which' was done, and afterwards this prospective juror was excused. Another complaint is that plaintiff’s counsel asked of another man in the panel, “What is your business?” and the reply was, “Insurance.” Thereupon counsel for plaintiff said, “You are excused.” A number of other matters are objected to in the selection of the jury. We have carefully considered all of them, but are of the opinion that we would not be warranted in disturbing the verdict on account of the objections made. A number of the men who served on the jury drove automobiles and it is almost common knowledge that persons driving automobiles carry liability insurance, and we assume that the men called to act as jurors had the qualifications required by the statute and were cognizant of the situation. We do not, however, want to be understood as approving of everything done by counsel for the plaintiff in selecting the jury. In this connection there were a great many references by him to Thomas M. Burns, but who he was or what he had to do with the case is more or less a mystery. We have not been informed by either side as to what connection, if any, Burns had with the case.

Complaint is also made by the defendant to the overruling of objections made by him to questions put by counsel for plaintiff to Dr. Morrison. Dr. Morrison was the physician who attended plaintiff professionally after the accident. He was asked, from his treatment of plaintiff for the injuries claimed to have been sustained on account of the accident whether, in the doctor’s opinion, plaintiff’s condition was temporary or permanent. Hypothetical questions were then put to the doctor and it is claimed by the defendant that his objections should have been sustained because the questions did not call for an opinion based upon a reasonable degree of medical certainty; that the questions were too broad and speculative and invaded the province of the jury. But we think none of these objections can be sustained. Upon a reading of these questions and the objections, we have no doubt that the jury clearly understood the testimony of the doctor.

A further complaint is made that the court unduly limited the cross-examination by counsel for the defendant of a doctor who testified to hypothetical questions put to him. The hypothetical questions contained an assumption of a great many facts — counsel for defendant say 70 — and on the cross-examination counsel, for the defendant sought to elicit from the doctor whether some of these elements might not be eliminated and still the doctor’s answer would be the same as it was to the hypothetical question. Objection was made by counsel for plaintiff to these questions and sustained, the court taking the position that the questions were improper but that counsel for the defendant was at liberty to frame a hypothetical question according to his theory of the case leaving out such elements as counsel desired. We think the ruling was wrong. City of Chicago v. Farwell, 284 Ill. 491; People v. Zito, 141 Ill. App. 534; Spohr v. City of Chicago, 206 Ill. 441; Stemons v. Turner, 274 Pa. St. 228; 22 Corpus Juris, p. 724.

In the Farwell case a real estate expert witness testified in a special assessment case as to the benefits that would be derived by certain real estate in the construction of a certain improvement. In stating the rule as to the cross-examination of such witness the court said, p. 499: “A witness may be cross-examined in regard to the basis of his opinion as to the amount of such increase, but 'an objection that he is unable to separate the aggregate and state the precise sum which each element of advantage contributed to the total goes to the weight of his opinion and not to his competency. ... If the witness has based his opinion in a material degree upon elements of advantage which cannot be legally considered and which he cannot or will not separate from the causes which may be legally considered, such opinion is not competent. ’ ’

In the Zito case the court in discussing cross-examination of expert witnesses, said: “Of all witnesses experts are those of whom the most searching cross-examination should be permitted.” And in the Spohr case, in discussing the same question, the court said that “the cross-examiner is entitled in every instance to demand a free disclosure, minutely and in detail, of all the facts and circumstances upon which the expert’s .opinion has been grounded,” and that great; latitude should be allowed in such cross-examination. And the Pennsylvania court, in the Stemons case, in considering the cross-examination of the osteopathic physician who had testified as an expert and expressed an opinion in answer to a hypothetical question, said that full latitude should be allowed the cross-examiner to ascertain what factors the witness took into account in arriving at his conclusion, and what factors, if any, might be disregarded. The court there said (p. 235): “On cross-examination of an expert witness, who has expressed an opinion in answer to a hypothetical question, full latitude should be allowed to ascertain just what the factors were which the witness took into account in arriving at his conclusion, and what, if any, he disregarded; otherwise the integrity and value of his opinion cannot be investigated. Under such circumstances, a broad range of inquiry is permitted and the expert witness may be asked as to the basis of his opinion, including statements on which he has relied, in order to show the reasonableness or unreasonableness of the opinion expressed, and to test its value. His attention may be called to any fact, omitted from the hypothetical question asked on direct examination, or the facts stated in the hypothetical question which are deemed unimportant may be sifted out.”

In view of the foregoing well established rule of law, we think the cross-examination of the doctor was unduly limited, and since the defendant argues that the verdict is excessive, we are unable to say that the ruling was not prejudicial.

Defendant further contends that the court erred in refusing to give instructions numbers 2, 5 and 6, requested by the defendant. Instruction 2 was abstract in form and therefore it was not error to refuse it. By instruction 5 the defendant sought to have the jury instructed that whether there was a tail light on defendant’s truck was immaterial if they found from the evidence that plaintiff saw the truck when he was a reasonable distance from it and could see it at all times thereafter. We think the instruction was properly refused. The evidence was conflicting as to whether the tail light on the truck was lit at the time, also as to the speed of the Ford and whether the truck backed up. The jury might find that if the tail light was lit plaintiff might have been able to have seen the truck before he did, and whether there was a tail light might have some bearing on the issue. Furthermore the phrase “reasonable distance” was apt to confuse.

Refused instruction 6 was as follows: “You are instructed that if you believe from the evidence that the plaintiff and the employees of the defendant were both guilty of negligence which proximately contributed to the injury or damage complained of, then you are instructed that you have no right to compare the negligence of the plaintiff with that of the defendant, and find a verdict according to which side you think was guilty of the greater degree of negligence, for in such case it is the law that it makes no difference which was guilty of the greater degree of negligence. Under such circumstances the plaintiff cannot recover.” The only answer made by counsel for plaintiff justifying the refusal of requested instruction number 6 is that it was but a cautionary instruction and therefore it was discretionary with the court to give or refuse it, and further that the same subject was covered by instruction number 9, given at defendant’s request, which told the jury that plaintiff was just as much in duty bound to exercise care as the employees of the defendant. We think neither of these answers is adequate. The instruction was not cautionary, but told the jury that they could not compare the negligence of the parties and this was not in any way covered by given instruction number 9. The jury might think that defendant was more negligent than was plaintiff and would bring in a verdict for the plaintiff under misconception of the law. The question of liability being in dispute as to which side was to blame, we think it was prejudicially erroneous to refuse this requested instruction.

Complaint is further made that the court erred in giving instructions numbers 3, 4, 5 and 6, at plaintiff’s request. Without discussing instruction 3, we think it sufficient to say that we think there was no error in giving it. By instruction 4 the jury were told that it was not necessary that the particular injury and the particular manner of its occurrence could reasonably have been foreseen in order to make a negligent act the proximate cause of an injury, but if the jury believed from a preponderance of the evidence that the defendant was negligent, as charged in the declaration, “then it is sufficient if the defendant could have foreseen in the exercise of reasonable care that some injury might proximately result from the negligence alleged, if you believe the defendant was negligent.” We think this instruction ought not to have been given because we are of the opinion that it would not enlighten the jury but tend to confuse them. The jury would readily understand the issues involved without such an instruction.

Instruction number 5 told the jury that it was the duty of a person operating vehicles in public streets to use reasonable care for the safety of other persons and vehicles in the streets, and that if they believed from the evidence that the defendant failed to use such care “as alleged in the declaration,” and that such failure to use reasonable care, if any there were, proximately caused the plaintiff’s injury, and plaintiff was in the exercise of ordinary care for his own safety, then they might find defendant guilty. The complaint is that by this instruction the jury were referred to the declaration for the negligence alleged. While the practice of referring the jury to the declaration has been condemned (Bernier v. Illinois Cent. R. Co., 296 Ill. 465) yet we are of the opinion that the defendant was not prejudicially affected by the giving of this instruction.

By instruction 6 the jury were told in substance that they were not required to believe a thing to be a fact simply because a witness had sworn to it, etc. The complaint is that the instruction did not limit the jury to the conduct of the witness while testifying. We think there was no error in the giving of this instruction. The jurors are supposed to be endowed with ordinary intelligence in determining whether testimony of a witness should or should not be believed.

For unduly limiting the cross-examination of the doctor, and the refusal to give defendant’s requested instruction number 6, the judgment of the circuit court of Cook county is reversed and the cause is remanded.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


text:
    James E. Bistor et al., Appellees, v. Joseph B. McDonough, Appellant.
    Gen. No. 35,333.

      Opinion filed July 22, 1931.
    Rehearing denied August 3, 1931.
    John A. Swanson, State’s Attorney, and John E. Peddbbson and Louis H. G-eiman, Assistant State’s Attorneys, for appellant; Thomas D. Nash and Hayden N. Bell, of counsel.
    Watkins, Ten Hoor & Gilbert, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainants by their bill in equity ask that certain assessments and taxes for the year 1929 against real estate owned by them be declared void and that the collection of the same be perpetually enjoined. Defendants filed a demurrer. Upon motion, an interlocutory order was entered, enjoining defendant, county treasurer, from advertising the property named in the bill as delinquent and from pursuing any other proceedings with reference to taxes on the real estate. This appeal seeks the reversal of this interlocutory order.

Complainants first assert that this court has no jurisdiction of this appeal as a question of revenue is involved. While there are decisions supporting this view (Patterson v. Denton, 201 Ill. App. 382; Birch v. Denton, 201 Ill. App. 386), we are disposed to follow the later cases of People v. Sears, 230 Ill. App. 484, and Klever Shampay Karpet Kleaners, Inc. v. City of Chicago, 238 Ill. App. 291, which construe section 123 of the Practice Act, Cahill’s St. ch. 110, ¶ 122, as including all cases.

In the bill complainants describe themselves as taxpayers of Cook county, Illinois, who are filing the bill “on behalf of themselves and all other taxpayers in Cook County, Illinois, similarly situated, who are willing to join in this suit and share its expense.” A large number of persons are named in the bill as complainants. As stated by attorneys for the complainants in their brief, the essence of the bill is that the board of assessors and the board of review of Cook county, together with the State tax commission, have entered into a fraudulent scheme by which personal property has been systematically and intentionally omitted from assessment or grossly underassessed for the purpose of throwing an unfair portion of the tax burden on real property; that personal property in Cook county has been assessed at about $700,000,000, while, in fact, the real value of personal property is $30,000,000,000; that real estate, on the other hand, has a value of $10,000,000,000; that personal property should bear 75 per cent of the tax burden and real estate 25 per cent, but that under the 1929 assessment of Cook county property, 83% per cent of the tax burden is borne by real estate and only 16% per cent by personal property; that by Article 9, section 1, of the Constitution of Illinois, it is provided that a uniform assessment must be made so that the tax burden will be borne by all property in proportion to its value.

The principle of uniformity of taxation in the assessment of taxes is firmly established and that principle must be fully carried out as far as practicable in respect to all property. Chicago & North Western Ry. Co. v. Board of Supervisors, 44 Ill. 240; People v. Illinois Cent. R. Co., 273 Ill. 220; People v. Chicago, Burlington & Quincy R. Co., 300 Ill. 399; People v. Orvis, 301 Ill. 350. In this latter case the court said: “This principle lies at the foundation of all taxing power, for the reason that one man should not be compelled to pay a greater proportion of taxes according to the value of his property than another. ’ ’

Complainants cite a large number of cases, mostly from federal courts, holding that, if property is arbitrarily assessed fraudulently at too high a valuation, a court of equity will interfere to protect the taxpayer in his constitutional right. This has also been frequently held in this State. The cases, however, which justify the interposition of a court of equity are cases in which a complaining taxpayer is asserting that his particular kind of property has been fraudulently overvalued as compared with other property of the same kind. If A owns a lot and it is assessed at double the value of another lot identical in size, location, etc., upon a proper bill equity will restrain the collection of taxes based upon this unfair -and inequitable valuation.

The case before us, however, is of another sort. Here, certain real estate owners are asking that they be relieved from payment of taxes on their particular real estate, while all other real estate which is valued upon the same basis must pay its taxes. The successful result of complainants’ bill would give them special immunity from any proceedings to collect taxes on their realty, leaving other taxpayers in the same class of real estate owners to pay the taxes. Complainants’ bill, in essence, seeks to establish an inequitable exception in their favor, thus violating the fundamental principle of uniformity of taxes.

A ease involving substantially this situation is First Nat. Bank of Urbana v. Holmes, 246 Ill. 362, where the complainant asserted (reversing the situation in the instant bill) that its real estate was valued at 43 per cent of its actual value and its personal property at 75 per cent of such value. The opinion states the general rule concerning uniformity of taxation, together with some pertinent observations as to the necessity of honest judgment on the part of persons elected or appointed to tax assessing bodies. The court holds that where a valuation of a particular piece of property is so unreasonable as to show that the officer must have known that it was wrong, that such valuation is a fraud, but that the whole matter of assessment is committed to the board of assessors- and the board of review upon the controlling principle that every person and corporation shall pay a tax in proportion to his or its property, “and a court of equity has no jurisdiction to enjoin the collection of a tax unless it is unauthorized by law or is levied on exempt property or the property is fraudulently valued too high.” The opinion notes that the officer who made the assessment knowingly and intentionally discriminated between different classes of property “by valuing one class at 43 per cent and another at 75 per cent of the real value.” The trial court required a reduction of the valuation fixed by the board, but the Supreme Court finds that the effect of this was to permit complainant to pay less taxes in proportion to the value of its shares of stock than all other taxpayers in the township owning the same kind of property; that this was a wrong to such other taxpayers. The court held that a court of equity cannot intervene on behalf of a taxpayer upon the ground that the property of others has been valued too low; that while one class of property should not be assessed on a lower basis than another class, the court could not give the relief asked for by complainant’s bill “without doing an injustice to all other owners of similar property who were assessed on substantially the same basis of valuation. ’ ’

This case is decisive of the question before us. It, in substance, holds that, where the discrimination is in favor of a class of property, a taxpayer owning property in another class can resort to mandamus to compel a proper assessment of the favored class, and not to equity. When the discrimination is in the same class, the injured party is entitled to a remedy in equity for relief against the fraudulent excess. Such a case is People’s Gas Light & Coke Co. v. Stuckart, 286 Ill. 164, where the complaining taxpayer was discriminated against with reference to certain property as compared to other property of the same class. So also People v. Chicago, Burlington & Quincy R. Co., 300 Ill. 399. In the present case complainants do not complain of any discrimination in the same class of property. Complainants’ brief does not dispute the pertinency of the decision in First Nat. Bank of Urbana v. Holmes, 246 Ill. 362. We read People v. Webb, 256 Ill. 364, as permitting mandamus proceedings where the discrimination is in favor of one class of property as against property of another class.

As to the allegation that certain personal property was omitted from assessment, it should be noted that such an omission would not affect the validity of taxes on other property. To hold otherwise would give the assessing officers the power to defeat the collection of taxes by such omissions. ‘ ‘ Such officers may make themselves amenable to the law, for misconduct in office, but cannot thus stop the wheels of government.’’ Dunham v. City of Chicago, 55 Ill. 357. See also Merritt v. Farris, 22 Ill. 303; Schofield v. Watkins, 22 Ill. 66; Spencer & Gardner v. People, 68 Ill. 510; People ex rel. Gerstkemper v. Lots in Ashley, 122 Ill. 297.

For the reasons indicated we hold that the interlocutory injunction should not have been granted and it is therefore reversed.

Reversed.

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


author: Mr. Justice Jett

text:
    Walter R. Shiel, Defendant in Error, v. Chicago Title & Trust Company et al., Plaintiffs in Error.
    Gen. No. 8,240.

      Opinion filed September 4, 1931.
    Kirkland, Fleming, Green & Martin, for certain plaintiffs in error; Vernon M. Welsh and Ben Rothbaum, of counsel.
    E. P. Harney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.

The writ of error sued out in this cause by the plaintiffs in error seeks to have reviewed decrees in a foreclosure suit instituted by Walter R. Shiel, defendant in error, against the Chicago Title and Trust Company, a corporation, trustee, Wm. C. D. Trankle, Wm. F. Behrens, Sheridan Trust & Savings Bank, executor and trustee under the last will and testament of George W. Walker, deceased, Fred Fountaine, Elizabeth PI. Walker and Sidney V. Walker, plaintiffs in error, in which certain of the plaintiffs in error were held personally liable on notes and trust deed foreclosed in this proceeding.

For convenience, the defendant in error will be referred to as complainant, and plaintiffs in error as defendants.

The bill of complaint was filed in the circuit court of Kankakee county by the complainant on April 25,1928, and in his said bill it is alleged that one Signa M. Johnson, on February 5, 1926, being indebted in the sum of $20,000, executed her principal promissory-note for $20,000, maturing five years after date with interest evidenced by coupons attached; that to secure the payment of the said principal promissory note the said Signa M. Johnson executed her trust deed conveying to the Chicago Title & Trust Company, as trustee, certain premises in the county of Kankakee and such indenture was recorded in the recorder’s office of the county of Kankakee on February 8, 1926; that complainant is the owner of said note and that Signa M. Johnson, nor any person for her, had paid the interest due on said note on February 5,1928; that on the 11th day of April, 1927, the said Signa M. Johnson, a spinster, gave a declaration of trust expressly declaring and affirming therein that she quitclaimed the said real estate simply as a naked trustee and that she had no right, title and interest to said properties conveyed as aforesaid and that she held it as trustee for the benefit, advantage, use and act of George W. Walker (now deceased), Wm. C. D. Trankle and Wm. F. Behrens, which said declaration of trust was recorded on the 13th day of April, 1927, in the office of the circuit clerk of Kankakee county, Illinois; that by reason of the ownership of said lands at the time said trust deed was given, George W. Walker, Wm. C. D. Trankle and Wm. F. Behrens became individually liable to said' complainant for the payment of-said notes and upon foreclosure of said mortgage, would be liable for any deficiency judgment that might be rendered therein; that the said Signa M. Johnson afterwards, on the 8th day of April, 1927, gave a quitclaim deed to the Sheridan Trust and Savings Bank, an Illinois corporation of the City of Chicago, as trustee, under the last will and testament of George W. Walker, deceased, and to Wm. C. D. Trankle and Wm. F. Behrens, conveying to them said real estate; that afterwards said quitclaim deed was recorded in the office of the circuit clerk of Kankakee county on April 20, 1927; that the said George W. Walker was, at the time of his decease, together with Wm. C. D. Trankle and Wm. F. Behrens, the owner of the equity of redemption of said described premises and the complainant prays for an answer, accounting, for foreclosure and sale in default of payment.

To the bill of complaint joint and several answers were filed by the Sheridan Trust and Savings Bank, executor and trustee under the last will and testament of George W. Walker, deceased, Elizabeth H. Walker and Sidney V. Walker, in and by which they denied that the said defendants were indebted upon the note or indebtedness set forth in said bill of complaint. Answers were also filed by Wm. C. D. Trankle denying his liability to the complainant for the payment of the notes described in the bill of complaint and denying his liability for any deficiency judgment which might be rendered therein. The record discloses that some of the defendants were defaulted.

Upon a hearing before the circuit court of Kankakee county the court entered a decree of foreclosure and sale. The decree, among other things, found that by reason of the ownership of the said lands (being the lands and premises described in the trust deed) at the time said trust deed was given, Walker, Trankle and Behrens became each individually liable for the payment of said notes and for any deficiency which might appear in case of foreclosure and sale of said premises. The court further found there was due on said notes $21,082.99. No conditional deficiency judgment was entered. A sale was had by the master and the land was sold for $12,800, and upon the approval of said report the court rendered a deficiency judgment for $9,464.24 against Behrens and Trankle and against the estate of Walker to be paid in due course of administration. An execution was issued on said judgment against the effects of Behrens and Trankle. A motion was made to set aside all orders and decrees and this motion was overruled. The writ of error sued out in this cause by the defendants is to test the correctness of the decree rendering the deficiency judgment.

■ It will be observed from the record that the trust deed, which was a purchase money mortgage, was executed by Signa M. Johnson on February 5, 1926, and the note and interest coupons secured thereby were, also executed by Signa M. Johnson on said date, all being payable to the order of herself and by her indorsed in blank. It is conceded Wm. C. D. Trankle, Wm. F. Behrens and George W. Walker (now deceased) were not parties to either the said notes or trust deed.

The rule is firmly established that a purchaser of mortgaged property may be held personally liable for the payment of a note secured by a mortgage provided he had expressly or impliedly agreed to assume and pay the debt. It is equally well established that a purchaser of mortgaged property, who does not agree to assume and pay a debt, is not liable for its payment. It is not contended by the complainant that the beneficial owners of the real estate in question expressly agreed to pay the indebtedness evidenced by the notes, nor can any implied promise be relied on, unless it arises from the sole fact of the beneficial ownership of the premises at the time the trust deed was executed.

Section 18 of the Uniform Negotiable Instruments Act, Cahill’s St. 1929, ch. 98, ¶ 38, provides: “No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided.” The exceptions referred to do not include such notes as are involved in this proceeding. Complainant does not question the correctness of the rule as announced in the Negotiable Instruments Law but insists that it has no bearing on the issues in this cause because no attempt was made by the decree to hold the defendants liable on the negotiable instrument. He says that only Signa M. Johnson, the maker, was held liable for the mortgage debt. If the defendants are not liable on the notes secured by the trust deed or for the mortgage debt, then that is decisive of this case. The complainant further says that this was not a suit on a negotiable instrument — it was a foreclosure proceeding; that the note was not the indebtedness sought to be recovered, but was merely evidence of it; that there was no attempt by the decree to hold (plaintiffs in error) defendants liable on a note which they had not signed, that only Signa M. Johnson, the maker of the note, was held liable for the mortgage debt while (plaintiffs in error) defendants are held only for the deficiency. If Signa M. Johnson, the maker of the note, was only liable .for the mortgage debt as stated by the complainant, what right was there to hold the defendants for the portion of the mortgage debt represented by the deficiency?

It is true that notes are evidence of a debt, but they are the only evidence of the debt and cannot be varied by parol testimony. People v. Michigan Avenue Trust Co., 229 Ill. App. 512, 514.

Title to the debt passes with the transfer of the notes. No case is cited by the complainant, and we know of none, supporting the distinction which he attempts to make between the note and mortgage debt on the one hand and the deficiency judgment on the other. The Negotiable Instruments Act would be useless if a court should apply a different rule to notes and to the debt evidenced by the notes. The complainant, it appears to us, relies entirely upon the finding in the decree in question that by reason of the ownership of the land at the time the trust deed was given, defendants became each liable for the payment of the notes. We fail to find any finding in the decree that the defendants expressly or impliedly assumed to pay the notes. There is no finding that they authorized or knew anything about the execution of the notes and trust deed. The deficiency decree entered contains no finding of fact as to the liability of the defendants but merely recites that it appears from the report of sale that there is a deficiency, and that the defendants are personally liable therefor, and thereupon decrees that the defendants, pay said deficiency. The finding, that it appears from the report of sale that the defendants are liable, is not a finding of fact of anything other than that certain things appear from the report of sale. It cannot be said to be a finding that the matters appearing from the report of sale are facts.

It is a frequent practice among business men dealing in real estate, who do not want to involve themselves in personal liability, to employ or utilize some person or persons who will hold the property, execute the notes, trust deeds and mortgages, and thereby relieve themselves of personal liability. It is quite obvious that this is what Walker, Trankle and Behrens attempted to do. They were willing that the land should be subjected to the payment of the debt but they were unwilling to assume any personal obligation. Hence they used the name of Signa M. Johnson as a means to accomplish their purpose and we see nothing improper in such conduct.

As an elementary proposition a suit at law could not have been maintained upon the note in controversy against Walker, Trankle and Behrens because section 18 of the Uniform Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 38, forbids it, and we know of no rule of law that will subject them to personal liability on a note unless they had expressly or impliedly agreed to pay it. There seems to be no such agreement in this case and we therefore conclude that the decree is erroneous in so far as it rendered a personal judgment for the deficiency, and to that extent the decree is reversed and the cause remanded.

Reversed and remanded.