author:
Mr. Justice O’Connor
      Mr. Presiding Justice Thomson

text:
    Henry Meyer, Appellant, v. Iowa Mutual Liability Insurance Company, Appellee.
    Gen. No. 80,555.
    1. Insurance — evidence admissible as to notice to insurer of accident causing loss under automobile liability policy. Where in an action upon an automobile liability policy by a judgment creditor of the insured there was competent evidence, independently of declarations of an alleged claim agent of the insurer, to establish the fact of such agency, such declarations were admissible as tending to show representation of the company by such agent and that the company had notice of the accident upon which plaintiff’s judgment was based.
    2. Insurance — evidence admissible as to notice to insurer of accident causing loss under automobile liability policy. In an action upon an automobile liability policy by a judgment creditor of the insured, evidence as to statements made by the insured and the plaintiff to the insurer’s soliciting agent, after the accident upon which plaintiff’s judgment was based, and as to what was done by such agent in consequence of such statements, held competent evidence upon the question of notice to the insurer of the accident.
    3. Insurance — sufficiency of evidence to raise question for jury as to waiver of provisions respecting notice of loss and) suit in automobile liability policy. Evidence in an action upon an automobile liability insurance policy by a judgment creditor of the insured held to raise a question for the jury as to whether there had been a waiver by the insurer of the policy requirement that notice in writing be given it of any accident causing a loss under the policy, and that in case suit were brought thereon, the summons was to be forwarded to the insurer’s, home office.
    Thomson, P. J., specially concurring.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 5, 1926.
    Rehearing denied May 18, 1926.
    H. A. Barrhardt, for appellant.
    Ralph Roser, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit on a liability insurance policy issued by the defendant to one Angelo Nardi, seeking the recovery of $2,500, being the amount of damages sustained by him as established by a judgment in a suit brought by Meyer against Nardi for personal injuries received by Meyer by being injured through the negligent operation of Nardi’s automobile. At the close of the plaintiff’s case, there was a directed verdict in favor of the defendant and plaintiff appeals.

The evidence tends to show that on the tenth of November, 1921, the defendant issued its policy to Angelo Nardi in which the defendant agreed to indemnify Nardi against loss from liability imposed by law upon him, for damages on account of bodily injuries accidentally suffered by reason of Nardi’s ownership or maintenance of a Hudson automobile. The policy was for one year and while the automobile was being driven by Tony LaPanta, who was Nardi’s chauffeur, it struck and injured Henry Meyer, the plaintiff. Afterwards Meyer brought suit against Nardi in the superior court of Cook county on account of such injuries, the case was contested by Nardi and after trial there was a verdict and a judgment in favor of Meyer and against Nardi for $2,500. An execution was issued on this judgment and demand made on Nardi byi the sheriff. The execution was returned wholly unsatisfied, and thereupon plaintiff brought the instant case.

Plaintiff bases his right to sue on the policy on the following provision of the policy:

“No action shall be maintained against the Company under this policy unless it be for the recovery of money actually paid by the Assured in full satisfaction of a judgment against the Assured after trial of the issue * * #. Provided that should an execution on a judgment against the Assured be returned unsatisfied in an action by a person who is injured * * * by the use of the automobile * * *, the judgment creditor shall have, a right of action against the Company to the same extent that the Assured could have enforced his claim against the Company, had such Assured paid said judgment. ’ ’ The policy also provided:

“As soon as practical after its happening, the Assured shall give to the Company, or .to some one of its authorized agents, written notice of any accident causing loss covered by this policy, with the fullest information obtainable. The Assured shall give like notice of claim for damages on account of such accidents. If any suit is brought against the Assured to recover such damages, the Assured shall Immediately forward to the Company at its Home Office in Cedar Eapids, Iowa, every summons or other process served upon him.” There was a further provision in the policy that the Company should have the exclusive right to contest or settle any claim or suits against Nardi. Plaintiff offered in evidence the praecipe, summons, declaration, pleas, instructions, verdict and judgment in the personal injury case of Meyer v. Nardi. He also offered in evidence the execution issued under the judgment rendered in that case and the return of the sheriff thereon, showing that a demand had been made, but that no part of the judgment had been paid.

Angelo Nardi testified for the plaintiff that he obtained the policy in question from Thomas J. Reidy, whose name appears pasted on the back of the policy where it is stated that Reidy’s business is “general insurance” and that his place of business is 1705 Insurance Exchange, No. 175 West Jackson Boulevard; that he paid the premium to Reidy and Reidy delivered the policy to him; that on July 7, 1922, while he was ill in a hospital in Chicago, Tony LaPanta, his chauffeur, while driving the car struck and injured Henry Meyer; that he was confined to the hospital for about two weeks after July 7th; that while he was in the hospital he was told of the accident and after he was able to leave the hospital he told Reidy about the accident; that “Reidy represents the company”; that Reidy was the man that sold him the policy and said to the witness, “If you hear anything let me know, so that I can report it to the company.” The witness further testified that about 10 or 15 days after he got out of the) hospital, the injured man came to see him about the matter; that he then called up Mr. Reidy on the telephone and told Reidy that Meyer had called and wanted some money; that afterwards he again called at Reidy’s office and told him that he had a letter from a lawyer who apparently wanted $10,000; that he got a paper from the court which looked like a summons, which he also gave to Reidy; that about three or four days after he got the summons, Reidy took him to the office of the defendant company where they had a conversation about the matter with one Egan; that at that time Egan told him to employ a lawyer by the name of Blair; that Egan or the defendant would pay part of the lawyer’s fee; that the witness. went to see Blair as requested and that Blair rep-, resented Nardi in Meyer’s suit against him. Plaintiff’s attorney who was conducting the trial took the stand and gave testimony. Since it is apparent that counsel knew long before the trial that his testimony was to be offered he should have withdrawn as counsel. He testified in plaintiff’s behalf that sometime from the first to the tenth of September, 1922, he, representing Henry Meyer in the matter, called on Egan of the defendant company, at the latter’s office in the Insurance Exchange Building and discussed, with Egan, Meyer’s claim against Nardi; that upon calling Egan’s attention to the matter, Egan obtained a file which he had concerning the case; that Egan said he was the claim agent of the defendant insurance company, and that they talked about the case; that the name of the defendant insurance company was on the door of the office. A part of this conversation was stricken out upon objection, but we think all of it should have been admitted. While it is true the agency of a" person is not provable by his mere uncorroborated statement, as a general proposition, yet in the instant case when all the surrounding circumstances are considered, we think it was admissible. Here the name of the company was on the door tending to show that it conducted its business in that suite of offices. Egan who was in charge of the office discussed the matter with the attorney and it is clear that Egan knew such a matter was pending in the office; that he also knew where the files were relating to the matter because he obtained those files and discussed the case with the attorney. Those facts independent of Egan’s declaration that he was the claim agent of the insurance company tend to establish the agency and with those facts shown by the evidence, then the declaration of Egan’s became a part of the transaction and was admissible. Whiteside v. Margarel, 51 Ill. 507; Maxey v. Heckethorn, 44 Ill. 437; Proctor v. Tows, 115 Ill. 138. In the Whiteside case the court said (p. 508): “An agency cannot be proven by the mere statements of the alleged agent. ’ ’ And in the Maxey case, supra, it was held that a party1 claiming to be an agent of another in a particular transaction could not establish such agency by his own uncorroborated testimony. In the Proctor case, supra, the court, said (p. 138): “An agency cannot be proved by the mere declaration of * * * an agent, where the fact of agency is in issue.” The. language in each of these cases we think tends to support the proposition that the declaration of an alleged agent is admissible where sufficient other facts are adduced. We think all that was said or done at the time the attorney called on Egan should have been admitted, as it tended to show that Egan was representing the company and that the company knew of the accident. We are also of the opinion that the evidence tending to show that Meyer and Nardi had said to Reidy and what was done by Reidy was competent evidence on the question of notice to the company. Boston Store of Chicago v. Hartford Accident & Indemnity Co., 227 Ill. App. 192.

Of course, plaintiff could not recover under the policy unless the conditions of the policy were complied with. The policy requires that notice in writing be given to the company of any accident and of any suit, and that in case suit be brought to recover on account of any injuries sustained against the assured, the summons be forwarded by the assured to the home office of the defendant company at Cedar Rapids, Iowa. While the policy thus provided, such provision might be waived and the evidence tends to show that such was the fact in the instant case, and while the facts were not very fully brought out as to what was said and done at the time Egan was seen by Nardi and at the time he was seen by Earnhardt, yet we think the court should not have directed a verdict.

The judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

'Taylor, J., concurs.

Mr. Presiding Justice Thomson

specially concurring: I concur in the decision reached in this case, but I am unable to agree with all that is said in the foregoing opinion. While it was competent for the plaintiff to show that somebody representing him went to an office in the Insurance Exchange Building, on the door of which appeared the name of the defendant company, and there talked with one Egan, with whom he discussed the plaintiff’s claim, and that when he informed Egan that he represented the plaintiff, who had been injured by an automobile belonging to Nardi, who was understood to have a policy issued by the defendant company, and that as a result of the injuries received by the plaintiff he purported to have a claim against the defendant company, under the provisions of this policy, Egan produced a file covering this case and discussed the claim with the representatives of the plaintiff, in my opinion it was not competent for such representative to testify that Egan said he was the claim agent of the defendant company. The fact that one is the agent of another, whether that other be an individual or a corporation, or the nature or extent of his agency, cannot be established by anything such agent may have said. Somers v. Pacific Fire Ins. Co., 222 Ill. App. 196; Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41. In the latter case our Supreme Court stated that the agency may not be established by showing either what the alleged agent said or what he did, and further: “The source of authority is the principal, and the power of the agent can only be proved by tracing it to that source in some word or act of the alleged principal. ’ ’ In my opinion the rule thus laid down by our Supreme Court is not violated by testimony sought to be submitted by the plaintiff in the case at bar, to the effect that when his representative called at the office of the defendant company and talked with Egan, the latter produced a file covering this plaintiff’s claim. The significance of that testimony does not depend upon the proposition that it was the man Egan who produced the file, hut that the plaintiff’s representative went to what purported to be the Chicago office of the defendant company — an office in the Insurance Exchange Building having the name of the defendant company on the door, and there talked with someone who produced from the records in the office, a file covering the claim here sued upon. That, it seems to me, was competent evidence on the question of notice, hut what such person may have said on the question of his being an agent of the defendant company, it seems to me, was not competent.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Hankel Printing Company, Appellee, v. Illinois Manufacturers’ Casualty Association, Appellant.
    Gen. No. 30,460.
    1. Insurance — construction of exception in indemnity policy as to liability for injury caused by employee whose compensation not included in pay roll upon which premium computed. Under an indemnity policy protecting the insured against liability for personal injury to others than employees sustained upon the premises of the insured, except where such injuries are “caused by an employee Whose entire compensation is not included in the pay roll upon Which deposit premium for this policy is computed,” no liability Will attach where the injury is caused by the negligence of such an employee, whether such negligence consists of acts or omissions to act in violation of a duty owed by such employee to the person injured.
    2. Insurance — burden of proof as to whether claim under indemnity policy was within exception thereto. In an action upon an indemnity policy protecting the insured against liability for personal injury to others than employees sustained upon the premises of the insured, except where such injuries are caused by an employee whose entire compensation is not included in the pay roll upon which the premium for the policy was computed, wherein plaintiff alleged that the liability as to which indemnity was asked was not one resulting from an injury caused as provided in such exception, the burden was upon plaintiff to prove that its claim was not within the exception.
    3. Insurance — sufficiency of evidence to show claim under indemnity policy not within exception therein stated. Evidence in an action upon an indemnity policy protecting the insured against liability for personal injury to others than employees sustained upon the premises of the insured, except where such injuries are caused by an employee whose entire compensation is not included in the pay roll upon which the premium for the policy was computed, held not to show that the claim upon which the action was based was one for a liability not within the exception above stated.
    Appeal by defendant from the Superior Court of Cook county; the Hon. E. M. Mangan. Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 5, 1926.
    Fyffe & Clarke, for appellant.
    Charles L. Mahony, for appellee; Elmer M. Leesmah, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

This is a suit brought by the plaintiff, Hankel Printing Company, against the defendant, Illinois Manufacturers’ Casualty Association, on a contract of indemnity. One Beinke having obtained a judgment against the plaintiff in a personal injury suit for $5,000, the plaintiff by this cause of action seeks to be indemnified therefor by the defendant. There was a trial before the court, without a jury, and a judgment for the plaintiff in the sum of $5,000. This appeal is from that judgment.

On October 20, 1914, the plaintiff and the defendant entered into an indemnity agreement whereby the defendant agreed “to insure and indemnify the subscriber (the plaintiff) against loss by reason of the liability imposed or accepted under the existing Workmen’s Compensation Act, for damages on account of injuries * * * to his employees.” The premium charged by the defendant was based upon the estimated annual pay roll of the plaintiff. On November 1,1920, a signed typewritten rider, entitled “Public liability endorsement,” was attached to the contract of indemnity. It was as follows: “In consideration of the additional deposit premium herein provided, this policy is extended to indemnify the assured against loss by reason of the liability imposed upon him by law for damages on account of bodily injuries accidentally sustained, * * * by any person or persons not employed by the Assured, providing that such accidents are sustained while within or upon the premises of the Assured * * * or ways immediately adjoining; but this does not apply to injuries caused by an employee whose entire compensation is not included in the pay roll upon which the deposit premium for this policy is computed, nor to injuries caused by reason of the use, maintenance or ownership of any horses, draft animals, or vehicles, or automobiles, or any1 other self-propelled vehicles.” The premium charged for the general indemnity for a year was $131.50, and the premium charged for the public liability indorsement, $10.50.

On December 11, 1920, one Elsie Reinke — who was not employed by the plaintiff, but was walking on the street near the premises of the plaintiff — was struck and injured by some glass falling from one of the windows on the plaintiff’s premises. On May 24, 1921, she brought suit in the superior court of Cook county against the plaintiff, Hankel Printing Company, and A. S. Trade on account of her personal injuries, and on June 28, 1922, recovered a judgment against the defendant, Hankel Printing 'Company (Trude having been dismissed out of the case), in the sum of $5,000 and costs.

On October 16, 1924, this suit was brought by the plaintiff, Hankel Printing Company, against the defendant, Hlinois Manufacturers’ Casualty Association, claiming that the defendant, under the terms of the indemnity contract, was liable to the plaintiff in the sum of that judgment.

The case was called for trial on March 14,1925, and, on agreement of the parties, was submitted to the court, without a jury. There was offered in evidence the contract of indemnity, together with the public liability indorsement. It was stipulated that one George Hankel was president of the plaintiff, Hankel Printing Company, at the time of the injury to Elsie Eeinke, and that his compensation was not included in the pay roll upon which the deposit premium of the policy was computed.

Various pleadings, including the declaration and amended declaration, and papers filed in the personal injury case, and the record of the verdict and judgment of $5,000, were introduced in evidence. It was, also, shown that the cause was discontinued as to A. S. Trude, the plaintiff’s landlord. Three witnesses, Elsie Eeinke, the woman who was injured, Clemons, the janitor of the building and Hankel, president of the plaintiff company were called for the plaintiff. The defendant offered no evidence.

The evidence showed that Elsie Eeinke, when going to work, on December 11, 1920, and while walking on the sidewalk in front of the building at number 309 Eiver Street, Chicago, in which the Hankel Printing Company was located, was seriously injured by a piece of glass, which fell from a window in the office of the president of the plaintiff company, which office was on the second floor. It showed that the building was owned by A. S. Trude and that the plaintiff was a tenant.

The evidence of Clemons, the janitor of the building and who had worked there for 13 years for A. S. Trade, was as follows: It was part of the bottom pane of the window that fell out. The pane was about three feet high, and somewhat less across. He saw it every day. It had been cracked for several years before the accident. It did not look as though it would fall out. When he first saw it there was a crack extending about half way across. He saw it the evening before the accident, and the next morning. He did not know what caused it to fall out. He did not work for the plaintiff, and did not remember that Hankel spoke to him about fixing the window. He did not speak to Hankel three days before the accident about it. When asked who repaired the windows, he said, “If they got in very bad condition I just would go ahead and fix them and notify Mr. Trade. Other than that, I don’t know if the tenants or Mr. Trade used to fix them. ’ ’

The evidence of Hankel is as follows: He is president of the plaintiff company. The other officers are his wife and sons, the company being a family affair. The employees of the plaintiff number from 20 to 25. The window in question opened out on River Street. Two or three years before the accident, some one shot a hole through the window, the hole was about the size of a dime, or a little larger. By and by, the glass cracked more and more. There were two cracks all the way across, otherwise it was in good condition. He opened and shut the window every day in summer, and that may have helped to crack it more, but it did not show that it would break out. On the morning in question, the window was a little way open at the top, and the weather was windy and stormy. There was a strong wind. “It was nasty weather, windy, very windy, and it was loose before the wind made it more loose. I was sitting at my desk when I saw it getting loose and I jumped up from my desk and tried to hold the glass, * *■ # so I jumped to the window and it fell down on the window sill. It broke there in half and the other part fell down and half of it fell on the window sill and half of it fell on the street.” There were quite a number of windows in the shop. They were quite often repaired by the landlord. On cross-examination his evidence is as follows: Some days or weeks before the accident he told the janitor about its condition and that it ought to be fixed, because, “it didn’t look nice,” it was a disgrace. On the day in question he opened the window a little. “I jumped up and tried to hold it * * * and it did slip really through my hands, the glass, to the outside. If I had turned it inside it was all right. It slipped outside and fell on the stone on the window there and broke in many small pieces. One piece fell over the sidewalk.” If it had not been for the storm, he supposed the window would still be there. He relied on the janitor to fix the windows. He did not have anybody to fix them. The landlord paid the bill. He spoke to the agent of the building about the window being broken, but the agent denied it. Examined by the court, his evidence is as follows: The wind was the cause of the glass falling out. It was a windy day and the glass rattled, and he got a little “scared” and kept his eye on the glass. “I thought I would have to do something, or paste it up with something. That was in my mind. In the same moment I saw the glass falling out and I jumped up and tried to hold it. So I think the wind was the real cause of it.” He tried to hold it, but could not. It was the upper window. When he jumped up it was already falling. He did not get hold of the piece that fell out.

It is contended for the defendant that the liability for which indemnity is' sought falls within the exception mentioned in the contract of indemnity. In other words, that the injury to Elsie Beinke was caused by the negligent omission to act on the part of Hankel, president of the Hankel Printing Company, whose compensation was not included in the pay roll, and, therefore, was an injury caused by an employee whose compensation was not included. It is urged that the Hankel Printing Company was held liable to Elsie Beinke solely for negligence in maintaining a broken windowpane; that Hankel, president, had, and assumed, a duty as to that particular window pane; that he sat month after month for several years in the room where the window was, with daily knowledge of its condition and increasing danger, saw it get worse and worse, and crack more and more in various directions, until it finally fell and struck and injured Elsie Beinke; that it was his negligent omission to act that caused the accident; that no one else in the plaintiff company either acted or omitted to perform any duty so as to cause the accident.

On the other hand, it is urged for the plaintiff that the provision in the contract is to be construed most favorably to the assured, and strictly against the insurance company; that the word “caused” may be used in the sense of an act of commission or omission; that where a word may be used in different senses, its use in the insurance contract will be construed in a sense most favorable to the assured; that the burden of proof that Hankel came within the exception was on the defendant, and that that burden is not satisfied merely by showing that the liability of the assured was due to some nonfeasance.

The particular words which it is necessary to interpret are as follows: “But this does not apply to injuries caused by an employee whose entire compensation is not included in the payroll.” In interpreting those words it is necessary to bear in mind the purpose of the indemnity contract, as modified by the rider entitled, “Public liability indorsement. ’ ’ In putting on the rider, the parties were evidently intending to extend the indemnification so as to insure the plaintiff against any loss that might be imposed upon it by law for personal injuries accidentally sustained by any one not employed by the plaintiff, provided the injuries were sustained on or about the plaintiff’s premises, but to exclude loss for injuries caused by an employee whose compensation was not included in the pay roll. It is admitted that “injuries caused by” Hankel were not included within the scope of the rider. It follows, therefore, that we must start with the assumption that all injuries which were “caused by” Hankel were excluded as a source of indemnity under the contract.

The question then arises: Do the facts which the evidence establishes prove that the personal injuries of Elsie Reinke were caused by Hankel? To hold that they were, it is necessary to conclude that there was some duty upon him which he failed to carry out, and which, as a consequence, resulted in the accident in question. The evidence shows that he was president of the company; that he had his office in the room within which the window in question was; that two or three years before the accident some one shot a hole about the size of a dime, or a little larger, through the window; that as a result the windowpane cracked; that from day to day, in summer at least, Hankel opened' and shut the window, and helped in this way to crack it more and more; that there were two cracks all the way across; that he saw it from day to day in its cracked and therefore dangerous condition; that he did not see fit, knowing its condition, to have it repaired; that he must have known, in the exercise of ordinary care and judgment, that at any time some portion of the windowpane might fall out on the street, and that on the day of the accident, when there was a strong wind, it did break out and a portion of it fell and produced the injuries above referred to.

It is urged for the plaintiff that the phrase “caused by” must be interpreted as implying affirmative overt acts. With that we do not agree. Actionable negligence, based on want of care, may arise from a state of omission, as well as from one of commission.

‘ ‘Negligent wrong-doing is that which is not intentional, bnt results from culpable inadvertence or indifference. The mental attitude of the wrong-doer consists not in any desire to do harm, but in the absence of a sufficient desire to avoid it. The law is not satisfied with the mere absence of any intention to inflict injury, but demands a positive direction of the will towards the avoidance of it.” Note, page 410,. Salmond Jurisprudence, 7 ed.

In our opinion, considering the language of the policy and all the circumstances surrounding its issuance, it is entirely clear that the chief object sought to be attained was insurance of the plaintiff company against damages resulting from the negligence of any of its employees, with the exception of those whose compensation was not included in the pay roll on which the premium to be paid for this policy was based. That being the case, the phrase ‘ ‘ caused by an employee, ’ ’ in our opinion, should be taken, in this particular case, in the sense of “caused by the negligence of an employee.” Further, it seems clear that we would be doing violence to the language found in this policy if we were to hold that it must be considered as excluding negligence which was the result of omission, or a failure to act.

In Lynch v. Commercial Casualty Ins. Co., 93 N. J. L. 125, the court considered an insurance policy which provided that the defendant was not liable if the injury was “caused by” any one employed by the insured under 16 years of age. In that case a boy 14 years of age, while in charge of the elevator in a building, left it unattended, so that in his absence some one on an upper floor pulled the rope and caused the elevator to ascend, leaving an opening unguarded, through which the injured person fell, and the court held that “the proximate cause of the accident was the absence of the boy from his post of duty,” and that the case fell within the exception and that the insuranee company was not liable. In that case, it was the boy’s neglect and failure to do his duty — that duty, however, being* prescribed, at least in part, as the result of his relations with his employer — which was the cause of the injury. It was the result, however, of omission, and not of commission.

In Butter Street Foundry & Iron Co. v. Illinois Manufacturers’ Casualty Ass’n, 312 Ill. 287, the offense charged was that a truck loaded with steel girders, belonging to the insured, “was allowed to remain in a public highway several miles distant from the plant, and as the result of a collision with said truck two persons were killed and a third person injured.” In that case it does not appear that it was the driving of the truck to the place in question, but rather the omission to remove it, or to guard or light it, that was the source of liability.

In the instant case, therefore, the window being in a dangerous condition in which it was for so long a period of time, and Hankel having daily knowledge of that, it cannot be said, with reason, that he was in the exercise of ordinary care in allowing the window to remain in its dangerous condition. No one in such an environment is entitled, but at his peril, to menace the life and health of others. In our judgment, the material and efficient cause of the injury was the negligence or breach of duty to exercise ordinary care on the part of Hankel.

' The plaintiff contends that the burden was on the defendant insurance company, in order to prevent a recovery in this case, to show that the claim on which the plaintiff is suing was within the exception in the policy; in other words, that the policy was. not to apply “to injuries caused by an employee whose entire compensation was not included in the pay roll upon which the deposit premium for this policy is computed.” It appears, however, that the plaintiff in its declaration, after reciting the liability incurred by it for injuries sustained by one who was not in its employ, proceeded to allege “that said injuries so sustained by her were not caused by any employee whose entire compensation was not included in the pay roll upon which the deposit premium for said policy was computed.” Having seen fit to include that allegation in its declaration, we are of the opinion that the plaintiff must be held to have assumed the burden of proving it and it may not now take the position that the burden was on the defendant to prove the contrary.

It is urged for the plaintiff that the phraseology of the rider is ambiguous, and therefore it is the duty of the court to adopt a construction favorable to the assured. Considering what the evidence shows as to what actually transpired, in conjunction with the words used, we are not able to conclude that there is any ambiguity. To us it seems plain that the evidence demonstrates that the injuries in question were caused by a dereliction of duty on the part of Hankel, who himself was not included within the obligations of the rider.

The judgment, therefore, will be reversed.

Reversed.

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


text:
    John J. Keenan, trading as John J. Keenan & Company, Appellee, v. A. Tuma, trading as Tuma Brothers, Appellant.
    Gen. No. 30,497.
    1. Buiudino and construction contracts — when contract one involving practice of architecture. A contract whereby “you employ us architecturally to prepare the necessary plans, drawings and specifications * * * for your new cafeteria,” and containing also the undertaking of the plaintiff to write necessary contracts between defendant and parties to whom the work was let and to supervise the construction and details of the work, was a contract involving the practice of architecture within the meaning of Cahill’s St. ch. 10a, f 2.
    2. Building and construction contracts — when work contracted to he done involves practice of architecture. Where a contract whereby plaintiff was employed “architecturally” involved the preparation of plans and specifications, the letting of contracts and the supervision of construction work for the removal of a store front and the putting in of another of a different kind, the removal of a rear stairway and the substitution of a stairway in the basement, the alteration of rear wall, the construction of a partition and the wainscoting of a room, the work contracted to be done involved the practice of architecture within the meaning of Cahill’s St. ch. 10a, If 2.
    3. Building and construction contracts — when work undertaken and performed in violation of 'statute governing practice of architecture. Where one who was employed “architecturally” to make alterations upon a building, the work to include the making of plans, drawings and specifications, the letting of contracts and the supervision of construction, personally attended to all of such undertaking except the preparation of the plans, drawings and specifications, which were done under his supervision by a licensed architect in his employ, such person undertook and engaged in the practice of architecture in violation of Cahill’s St. ch. 10a, If 1, not being registered as an architect pursuant to such chapter.
    4. Building and construction contracts — invalidity of contract for employment of unregistered architect. A contract whereby one undertakes to perform services involving the practice of architecture, which is illegal because the promisor is not registered as an architect pursuant to Cahill’s St. ch. 10a, If 1 et seq., forms no valid consideration for the agreement of the recipient of such services to pay compensation therefor, and such contract is a nullity.
    5. Saving questions eor review — submission of propositions of law as prerequisite to decision on interpretation and application of statute on review of cause tried without jury. The fact that no propositions of law were submitted to the trial judge, at the trial of an action to the court without a jury, does not preclude the reviewing court from entertaining and deciding a question involved on the appeal touching the interpretation and application of a statute.
    Appeal by defendant from the Municipal Court of Chicago'; the Hon. Samuel H. Trude, Judge, presiding. Heard in the third divi-

      sion of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 5, 1926.
    Robert L. Huttner, for appellant.
    James Maher, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

On September 29, 1924, the plaintiff, Keenan (who did business under the title of John J. Keenan & Co.), began suit in a fourth-class case in the municipal court of Chicago against the defendant, Tuma (who did business under the title of Tuma Brothers), for $650 for a balance alleged to be due for architect’s services rendered under a written contract, and upon a trial, without a jury, on February 20,1925, recovered a judgment in the sum of $500. This appeal is prosecuted by the defendant.

The statement of claim set forth what purported to be a letter in confirmation of an oral agreement made by the parties, and a written acceptance by the defendant. The essential parts of that letter, which was written and signed by the plaintiff and addressed to the defendant, are as follows:

“This is in confirmation of our verbal agreement wherein you employ us architecturally to prepare the necessary plans, drawings and specifications * * * for your new cafeteria. * * *

“The plans to consist principally of Fixture Equipment, New Store Front, installation of Mezzanine Floor, Kitchen Equipment, Electric Wiring and Lighting, and also Ventilation, Plumbing, Decoration and all other improvements.

“The plans are to be submitted to you for your approval, and we are to furnish blue prints and specifications to the different parties figuring on the various lines of work, take figures and submit them to you for approval.

“We are to write proper contracts between you and the parties given the work; also to superintend the construction and details of the work, both at the factory and at the cafeteria when the work is being installed.

“For the architectural service you are to pay us a fee equivalent to 5,%- on the cost of the work and a like amount for supervision during construction and installation and the securing of the necessary permits from the City. ’ ’

That letter was signed by the plaintiff, and was indorsed, below, “Accepted: Tuma Brothers, A. Turna.’’ The issue upon which the cause was tried was made up by the statement of claim and an additional affidavit of merits. By the latter, the defendant alleged that when the contract for services was made, and thereafter, the plaintiff was not a licensed architect and, so, was not entitled to recover.

The evidence of the plaintiff is substantially as follows : He has been in the business of engineer and architect, specializing in material, store fixtures and equipment, for 30 years, and employs from 30 to 40 men, but is not and at no time has been a licensed architect. Although he does business in the name of John J. Keenan & Company, he, alone, is the plaintiff, with offices in the Conway Building. He knew the defendant for about one year. The defendant employed him, “architecturally” to make alterations in his, the defendant’s store at Halsted and Madison Streets, and equip it as a restaurant and cafeteria. Carrying out the contract, set forth in the statement of claim, he, the plaintiff, under instructions from the defendant, prepared plans and specifications of the equipment, proceeded to take figures, and at the suggestion of the defendant, made a contract with the Chicago Equipment- Company. In drawing up that contract, he, the plaintiff, prepared the specifications as architect, before it, the contract, was signed by the defendant and the Chicago Equipment Company. That contract between the defendant and the Chicago Equipment Company provided that the company would remove the store front and put in a new one according to the drawings, remove rear stairs and substitute stairs to basement, and alter rear wall in accordance with revised plan, put up a plastered partition, put in wainscoting in dining room, provide certain tables, chairs, fixtures and equipment, all in accordance with plans and specifications prepared by’ him, the plaintiff, referred to as superintendent, and to the satisfaction of both parties. The contract provided for certain payments to be made by the defendant on certificates as the work progressed, and as certified to by the plaintiff as superintendent.

He, the witness, prepared plans and specifications, detailed drawings of the changes in the building to be made, and of the equipment of fixtures that were to be put in. Pour times a week, for about six weeks, he visited the defendant’s place of business, and he inspected the work as it was being done by the Chicago Equipment Company at the defendant’s place of business, and when it was finished, he rendered the defendant a bill for 10 per cent on the cost, as his commission. The total commission amounted to $750, or $800. Before the job started, he received an advance payment of $250, leaving $500, which was finally due, and which the defendant has refused to pay.

On cross-examination, he testified that he never was a licensed architect, but employs licensed architects; that the plans for the work on the defendant’s restaurant were drawn by Sanders, a licensed architect in his, the defendant’s, employment.

One Van Bogert, general manager of the Chicago Equipment Company, testified that the plaintiff drew up the plans and specifications, and inspected the work as it progressed. One Hewett, an employee of the same company, testified that he saw the plaintiff on the job nearly every day, and that he looked over the plans to see if matters were going along all right, and checked the work according to the plans and specifications.

Certain plans, drawings and specifications, which it was stipulated were made by the plaintiff pursuant to the contract between the parties, were introduced in evidence by the plaintiff, and it was stipulated that, on the lower right hand corner of each of them, there was indorsed the following: “Tuma Bros. Cafeteria, 808 W. Madison St., Chicago, Ill. John J. Keenan & Co., Architects & Engineers, Ill Washington St., Chicago, Ill. L. M. Sanders — Architect.”

The defendant testified that the plaintiff called on him and introduced himself as a licensed architect, and asked for the job on his store; that the plaintiff said he would furnish all the architectural drawings, and supervise the plans; that the plaintiff sent him a letter (the one set up in the statement of claim), which he, the defendant, signed and accepted.

The licensing of architects and the regulation of the practice of architecture as a profession is provided for by chapter 10a, Cahill’s St. 1925, paragraph 1, as follows:

“It shall be unlawful for any person to practice architecture or advertise or put out any sign or card or other device which might indicate to the public that he or she is entitled to practice as an architect, without a certificate of registration as a registered architect, duly issued by the Department of Registration and Education under this Act.”

Section 16 [Cahill’s St. ch. 10a, ¶16] provides that practice in violation of section 1 is a misdemeanor punishable by a fine of not less than $25, nor more than $200.

Section 2 [Cahill’s St. ch. 10a, ¶ 2] defines the practice of architecture as follows:

“Any one, or any combincation [combination] of the following practices by a person shall constitute the practice of architecture, namely: The planning or supervision of the erection, enlargement or alteration of any building or buildings or of any parts thereof, to be constructed for others. A building is any structure consisting of foundations, floors, walls, columns, girders, beams and roof, or a combination of any number of these parts, with or without other parts.”

(1) Did the services contracted for involve the practice of architecture? We think they did. The written proposition of March 6, 1924, which was accepted by the defendant, says, “you employ us architecturally to prepare the necessary plans * * * for your new cafeteria * * *. The plans to consist of Mezzanine Floor, Kitchen Equipment, Electric Wiring and Lighting, and also Ventilation, Plumbing, Decoration and all other improvements.” It, also, provides that, in addition to the plans being submitted for approval, blue prints and specifications are to be furnished “to the different parties figuring on the various lines of work, take figures and submit them to you for approval.” It, also, provides that the plaintiff shall draw up proper contracts between the defendant and the parties given the work, and that the plaintiff shall superintend the construction of the work, both at the factory and at the cafeteria. It, also, provides: “For the architectural service you (the defendant) are to pay us a fee equivalent to 5% on the cost and a like amount for supervision * * * .”

It will be seen, therefore, that practically all the service the plaintiff contracted to render pertained to the practice of architecture.

As to the actual work the defendant undertook to have done, it involved, briefly stated, the removal of a store front and putting in another of a different kind; the removal of a rear stairway, and the substitution of a stairway in the basement; the alteration of a rear wall, in accordance with a revised plan; the construetion of a 3-inch mackalite partition plastered on two sides, forming kitchen division and toilet room, includall necessary details, and putting wainscoting in the dining room. That shows, we think, that what was to be done was a subject concerning which architect’s services as defined by section 2, supra, were to be practiced and rendered.

(2) The question then remains whether the plaintiff, who was not a licensed architect, may recover compensation for architect’s services, where, although he employed a licensed architect to draw the plans, nevertheless he, himself, inspected the work from time to time as it progressed, practically every day, checking the work according to the plans and specifications, and supervised, “the erection, enlargement or alteration” of all that was contracted for. Section 2, supra, provides expressly that, “The planning or supervision” of a building or alteration constitutes the practice of architecture. It follows, therefore, that although the plans were made by his employee, Sanders, who was a licensed architect, he, the plaintiff, when he supervised the work in the way the evidence shows he did, undertook the practice of architecture in direct violation of the statute.

Although section 3 [Cahill’s St. ch. 10a, ¶ 3] of the act, as interpreted by the court in People ex rel. State Board Examiners of Architects v. Rodgers Co., 277 Ill. 151, provides that a corporation may contract for doing architectural work, if the work is to be done by a regular licensed architect, and there is no express provision in the act that a private person may do likewise, we think it must be assumed that the legislature did not intend to give a corporation greater contractual rights than an individual, and so deprive the latter of the right of employing licensed architects. As the court said in the Rodgers Co. case, supra: “Making contracts for services to be performed by an architect and collecting the compensation therefor is not practicing architecture within the meaning of the statute.” Citing State Electro-Medical Institute v. Platner, 74 Neb. 23; Crall v. Commonwealth, 103 Va. 855; and Davidson v. State, 77 Md. 388. In the last case it was held that one who had not been examined and registered as a plumber might engage in the business of plumbing, and contract for furnishing necessary materials and doing the appropriate work, provided he did not personally perform any of the manual work,, but employed therefor duly examined and registered plumbers. The court further said in the Rodgers Co. case: “Any natural person, licensed or unlicensed, may make a contract to furnish architectural work to be performed by a licensed architect. ’ ’

As here, however, the evidence shows that a substantial part of the architectural services contracted for were actually rendered and practiced not by a licensed architect in the employment of the plaintiff, but by the plaintiff himself and so constituted a violation of the statute, it follows that they could not become a valid consideration for the promise of the defendant,, and so, in the eyes of the law the alleged contract of employment became a nullity. A promise to do or the doing of illegal things is not a good consideration for a promise to pay. In such a case the law affords no affirmative remedy, but leaves the parties where, by their own acts, they have placed themselves. As said by Mr. Justice Swayne in Coppell v. Hall, 7 Wall. (U. S.) 542, “the law will not lend its support to a claim founded upon its violation. ” Estate of Ramsay v. Whitback, 183 Ill. 550, Brieske v. North Chicago St. Ry. Co., 82 Ill. App. 256. Broom’s Legal Maxims, p. 738, 8th ed.

As to the contention that the plaintiff made representations that were not justified and had no right to hold himself out as an architect, that need not here be considered, as the only defense set up in the affidavit of merits is that the plaintiff was not a licensed architect.

It is contended that, as no propositions of law were submitted to the trial judge, the question concerning the interpretation and application of the statute may not be considered here. That is untenable. This court is authorized to pass both upon the facts and the law even though no propositions of law were held or refused by the trial court. Pittsburgh, C., C. & St. L. Ry. v. Chicago City Ry. Co., 300 Ill. 162.

For the foregoing reasons, the judgment will be reversed.

Reversed.

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


text:
    Marguerite Hyde Suffolk and Berks, Appellee, v. Joseph Leiter et al., Appellees, on appeal of Thomas Leiter et al., Minor Defendants, Appellants.
    Gen. No. 30,515.
    1. Wills — construction of formula for computing present value of trust estate as creating presently distributable income or accrued, increment to booTc value. Under a will creating a trust to administer certain properties owned by the testator which directed that, to ascertain the amount of the investment of the estate in such properties at any time, there should be added to the book value thereof, as shown by the testator’s accounts, “interest at five (5) per cent per annum, without compounding,” where the testator’s son elected to take title to such properties pursuant to a further provision of such will authorizing conveyance thereof to him upon his payment to the, trustees of the amount of the estate’s investment therein, determined as above indicated, that part of the sum paid by him covering the 5 per cent addition to the book value became a part of the corpus of the trust estate, to be administered as provided elsewhere in the will and divided among the designated remaindermen at the termination of the trust, and was not income thereof presently distributable among the life tenants.
    2. Conversion — provision authorising conveyance of devised property to testator’s son upon his performance of designated condition as effecting equitable conversion. A provision in a will creating a trust to administer certain properties owned by the testator which directed the trustees to convey such properties to the testator’s son whenevef he paid to them the amount of the estate’s investment therein, did not effect an equitable conversion of such properties, since it was wholly optional with such son whether to qualify to receive the conveyance.
    Appeal by defendants from decree of July 10, 1925, entered by the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed May 5, 1926.
    Horace Kent Tenney, Boswell B. Mason and Patrick J. Lucey, guardians ad litem, for appellants.
    Scott, Bancropt, Martin & MaoLeish, for appellee Marguerite Hyde Suffolk and Berks; Prank H. Scott and Leland K. Neeves, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee Joseph Leiter.
    Fyfpe & Clarke, for appellee William J. Warr.
    Winston, Strawn & Shaw, for appellee Nancy Lathrop Carver Campbell; John C. Slade and Harold Beacom, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal by certain guardians ad litem appointed by the superior court for the minor defendants from a decree of the superior court of Cook county, entered on July 10, 1925, by which it was adjudged that the sum of $1,004,214.33 — received by the trustees under the will of Levi Z. Leiter, as part of a payment of $2,038,749.01, made by Joseph Leiter for certain coal properties described in the will — was income, and immediately distributable to the life tenants, and did not belong to, and was not a part of, the principal or corpus of the trust estate.

This litigation had its inception in a bill of complaint which was filed in the superior court by Lady Suffolk on May 8, 1923, by which she sought, among other things, a construction of the last will and testament of her father, Levi Z. Leiter. Subsequently, various and voluminous pleadings were filed and ultimately, as far as this appeal is concerned, a single issue was precipitated which involved the determination, and that alone, of whether a certain fund in the hands of the trustees of the estate constituted distributable income, or corpus of the estate.

On June 9,1904, Levi Z. Leiter, a resident of Washington, D. O., the owner of a large amount of real and personal property, died, leaving a last will and testament, which had been made and executed on June 1, 1904. The will was probated at Washington, D. C., on June 20, 1904, and in the probate court of Cook county on July 24, 1905. The estate passed through the probate courts, and the property was turned over to the trustees under the will. At the time of his death he left surviving him, his widow, Mary T. Leiter, his son, Joseph Leiter, his daughter Mary (Lady Curzon), his daughter Nancy (now Mrs. Campbell), and his daughter Marguerite (now Lady Suffolk). In 1906 Lady Curzon died, leaving her husband, Lord Curzon (who died in 1925), and her daughters, Mary Irene Curzon, Cynthia Blanche Mosley and Alexandra Naldera Curzon, surviving her. The testator’s widow, Mrs. Mary T. Leiter, died in 1913. The testator’s three surviving children are Joseph Leiter, Nancy (Mrs. Campbell) and Marguerite (Lady Suffolk). Joseph Leiter is the father of Thomas Leiter and Nancy Leiter, minors. Mrs. Campbell is the mother of Colin Campbell, Mary Neta Campbell and Audrey Nancy Campbell, minors. Lady Suffolk is the mother of Charles Henry George Howard, Earl of Suffolk and Berks, Cecil John Arthur Howard and Creville Reginald Howard, minors. Cynthia Blanche Mosley has an infant daughter.

The net residuary estate of Levi Z. Leiter, at the time of his death (excluding certain coal properties) was about $12,350,000, of which about 25 per cent was invested in personal property, and the rest in real estate. The average net income of the testator’s estate —apart from the coal properties — for each of the first three years succeeding his death, was approximately $500,000.

The coal properties, which are expressly devised and bequeathed to the trustees by clause 6 of the will, consisted, at the time of the testator’s death, of about 7,500 acres of coal lands, situated in the State of Illinois, and certain shares of the capital stock of the Universal Fuel Company.

The first three clauses of the will pertain to various trusts and matters which are not here directly involved.

The fourth clause devised to the testator’s widow, Mary T. Leiter (now deceased) and to three of his children and to Seymour Morris, as trustees, all the residue of his estate, both real and personal, “excepting only the coal lands situated in Franklin and Williamson Counties in the State of Illinois and also certain shares of the capital stock of the Universal Fuel Co., hereinafter referred to in the sixth paragraph of this my will. ’ ’ Full powers were given to the trustees as to their conduct of the trust estate and its income, and they were directed to pay one-third of the income to the testator’s wife during her life, and the remainder of the income — and after the death of the widow all of the income — in equal parts, to his four children, Lady Curzon, Mrs. Campbell, Lady Suffolk and Joseph Leiter. It was provided, -however, that from the shares of the income given to each of the children, there was to be deducted interest on advancements, and in explanation of that provision the will recites: “It being my intention to make equal the amounts which my said children shall severally receive from my estate.”

The income was to be distributed among the testator’s children during their lives, and to their issue upon their death during the continuance of the trust, with no power, however, on the part of any beneficiary to incumber or anticipate the bequest. The period of the trust was to continue until the death of the last survivor of the testator’s children and the final disposition of the estate. On the termination of the trust, the entire estate is to be divided among the surviving issue of the children in the proportions in which the income was directed to be distributed, in all cases per stirpes and not per capita.

In the management of the estate, the trustees were directed to keep, as nearly as may lie, one-half in personal property and one-half in real estate, including therein investments upon mortgages of real property. This fourth clause of the will contains further provisions as to the powers of the trustees, and the appointment of a successor in the event of the death of Seymour Morris.

The fifth clause of the will sets forth certain advances which the testator had made in his lifetime to his children, and recites that it is his “intention to make equal the amounts which each of my said children is to receive from my estate.” It directs that in the distribution of the net income, each of his children “shall be charged with interest at the rate of four (4) per cent per annum on the amount that each child has received by way of advancement * * * said interest to commence from the date that said trustees shall enter upon the discharge of their duties under the trust herein declared. The total amount of said interest charged on said advance shall be added by my said trustees to the two-thirds of the net annual income from my estate (to the whole of the net annual income after the death of my wife), and the amount thereof shall be by my said trustees divided into four equal parts or shares. One (1) share or part thereof shall be paid over by my said trustees to each of my said children * * *, that is to say, after deducting therefrom the amounts due by each of my said children as interest on the advancements made to them.” That clause contains the following: “Provided, however, that until my said son shall become entitled to receive and have conveyed to him certain coal lands and other property mentioned in the Sixth Paragraph of this my said will, if the amount payable to him from his share or part of my said trust estate be in any one year less than the sum of Forty thousand dollars ($40,000), then in every such year there shall be paid by my said trustees to my said son out of the net income from the trust estate in their hands a sufficient amount to make the total sum paid to him in such year equal to the sum of Forty thousand dollars ($40,000), which amount in any such year shall be ¡paid to him in person in equal quarterly payments upon his own receipt without any power on his part to anticipate or assign the same, and without any liability for the same to be taken from him by his creditors, it being my intention by this annuity to provide for his support and the support of his family, if he should have one. Provided, however, that until my estate shall be free from debts and encumbrances, if the amount of the share or part of my trust estate payable to my said son Joseph Leiter be in any one year less than Ten thousand dollars ($10,000), then in every such year there shall be paid by my said trustees to my said son out of the net income from the trust estate in their hands a sufficient sum to make the total sum paid to him in such year equal to the sum of Ten thousand dollars ($10,000), payable in the same manner and for the same purposes as above provided. It is my intention that the said additional sums over and above the amount of the share or part payable to my said son Joseph Leiter from my said trust estate shall be a charge against him, and bear interest at the rate of four (4) per cent per annum.”

The Sixth Paragraph of the will, under which the fund here in controversy came into being, is as follows:

“Sixth. I have purchased and acquired the title to about Seven thousand five hundred (7,500) acres of coal lands situated in Franklin and Williamson Counties in the State of Illinois, and also certain shares of the capital stock of the Universal Fuel Company. The amount of money invested in said properties is shown on my books under the heads of ‘Franklin County Lands,’ ‘Franklin County Land Improvement,’ and ‘Universal Fuel Company’; and in ascertaining the amount invested in said properties from time to time, interest at five (5) per cent per annum, without compounding, shall be added thereto. A corporation may be organized under the laws of the State of Illinois for the purpose of owning and operating said coal lands, either before or after my death, and in the event of the formation of such corporation the shares thereof shall stand in place of the said coal lands and Universal Fuel Company stock, and all the provisions herein contained shall be applicable to said shares of said corporation which may be formed.

“Said coal lands situate in Franklin and Williamson Counties, in the State of Ulinois, and also the said shares of the capital stock of the Universal Fuel Company, or all the shares of said corporation which may be formed as aforesaid, I give, devise and bequeath unto my said-trustees above named in the Fourth Paragraph of this my said will, in and upon the following uses and trusts; that is, in trust to permit my said son, Joseph Leiter, to manage and control the same, and the operations thereof, and I direct that the rents, issues, profits, and dividends derived therefrom after the payment of all operating or other expenses, shall be paid over to my said trustees and shall be applied as a credit by them to the amount of money invested by me in said coal lands and stock as aforesaid, said earnings to bear interest at the rate of five (5) per cent per annum from the time the same are paid over to my said trustees. And whenever my said son, Joseph Leiter, shall have repaid my estate in full, with interest as above stated, the whole amount invested in said coal lands and Universal Fuel Company, it is my will and I direct that my said trustees shall execute and convey to my said son, Joseph Leiter absolutely and in fee simple by proper deed, said coal lands, and shall turn over to him as his own property all of said shares of the capital stock of the Universal Fuel Company, or all the shares of said corporation which may be formed as aforesaid; and from and after the date when my said son shall receive as his own property the coal lands and stock of the Fuel Company above referred to, or all the shares of said corporation which may be formed as aforesaid, the provision contained in the Fifth Paragraph of my will in regard to his being paid a sufficient amount to make up his annual income from my estate to the sum of Forty thousand dollars ($40,000) or Ten thousand dollars ($10,000), as the case may be, shall cease and be at an end.”

For the purpose of owning and operating the coal lands referred to in clause 6, the Zeigler Coal Company, a corporation, was organized, and Joseph Leiter became its president. Apparently, the coal lands were conveyed by the trustees to that corporation in payment of itq stock, and later, reconveyed by that corporation to the trustees, so that at the time of the institution of this litigation, title was in the trustees. From the testator’s death, in June, 1904, to December 24, 1924, Joseph Leiter, chiefly through the corporation just mentioned managed and controlled the coal properties. Within that period, however, no payments were made by him to the trustees on account of the coal properties. Whatever income there was was used by him in operating and developing expenses, and in the purchase of other lands in the same neighborhood. Joseph Leiter claimed “that under the terms of testator’s will he had the right to develop the said property along the lines planned by the testator prior to the testator’s death, so far as may be necessary in view of all the circumstances to carry out the wishes and plans of testator in regard to said property, so long as the carrying out of said plans and wishes did not unreasonably jeopardize the repayment to the estate with interest of the amount advanced by the testator in connection with the said enterprise during his lifetime.”

On December 24, 1924, Joseph Leiter filed, in this cause, a petition and cross-bill. He alleged therein that he had organized the Zeigler Goal and Coke Company, with an authorized capital stock of $18,000,000, and had arranged with certain bankers to sell it's bonds to the extent of $4,000,000; that the security for the bonds would be all the coal properties mentioned in clause 6 of the will, and that he was ready and willing to pay the trustees for the coal properties at the price fixed for them by the testator in clause 6 of the will. The petition asked for the court’s approval of his offer. Being considered by all parties, or their representatives, as satisfactory, and after the filing of appropriate pleadings and the hearing and introduction of evidence and argument of counsel, a decree was entered on the same day sanctioning the turning over of the coal properties, by the trustees, to Joseph Leiter, and the payment by him, to the trustees under the will of Levi Z. Leiter, deceased, of the sum of $2,038,749.01. Accordingly, he made the payment to the trustees, and his nominee received the deed to the coal properties.

According to the decree of December 24, 1924, the testator had invested in the coal properties, prior to his death, $809,066.30, and the trustees had paid out upon contracts and obligations made and entered into by the testator, during his lifetime, in connection with the coal properties, an aggregate amount of $172,-980.40. Those two amounts, with 5 per cent per annum, up to the time of the testator’s death, which 5 per cent amounted to $52,487.98, make a total amount of $1,034,534.68. It was admitted that the latter amount constituted principal or- corpus of the estate, but the balance of the $2,038,749.01, being $1,004,-214.33, it was claimed by Joseph Leiter and Mrs. Campbell, two of the life tenants, was immediately distributable income, while on the other hand, it was contended on behalf of all the others, Lady Suffolk and the remaindermen, or their representatives, that it was a part of the principal or corpus of the estate. According to the decree of December 24, 1924, the balance, $1,004,214.33, and which is here in dispute, was the equivalent of 5 per cent per annum on $809,-066.30, and $172,980.40 as above stated, from the testator’s death to December 24, 1924.

In the decree of December 24, 1924, the court reserved jurisdiction to determine the question of income or principal, and later, on July 10, 1925, the chancellor entered a further decree by which he adjudged the $1,004,214.33 to be “presently distributable income” under the terms of the will, and not corpus of the estate, and by which he directed the trustees, accordingly, to distribute it to the life tenants. That is the decree here appealed from.

The sole question in the ease depends upon an interpretation of the will, and chiefly upon the intention of the testator as disclosed by clause 6.

In the recent case of McClure v. McClure, 319 Ill. 272, Mr. Justice Stone said:

“There are certain rules pertaining to the construction of wills which must be borne in mind not only in the construction of a will that is ambiguous, but in determining whether or not the will is so ambiguous as to require construction. The first rule in all cases is that the intention of the testator is to be determined from the entire will, and that intention is to be given effect unless it is contrary to public policy or established rules of law. The testator’s intention is to be gathered not from one clause of the will, alone, but from a view of the will as a whole and all of its parts, bearing in mind the plan of the testator as expressed in the entire will.”

In clause 6, the testator says: (1) “The amount of money invested in said properties (meaning his coal properties) is shown on my books,” under two different titles. He then says (2) “in ascertaining the amount invested in said properties from time to time, interest at five (5) per cent per annum, without compounding, shall, be added thereto.” In other words, interest at 5 per cent per annum, without compounding, shall be added to the money the books show, in order, from time to time, to ascertain “the amount of money invested,” or “the amount invested.” After that preamble describing what amount the coal properties, from time to time, are to be figured at, the testator (3) proceeds to devise the coal properties and bequeath the shares of stock to the trustees, and, (4) to designate the use and trust for which they are to be held. That designation is as follows, “in trust to permit my son, Joseph Leiter, to manage and control the same, and the operation thereof.” Following that, (5) an obligation upon Joseph Leiter, if he undertakes the management and control, is stated in these words: “I direct that the rents, issues, profits, and dividends derived therefrom after the payment of all operating or other expenses, shall be paid over to my said trustees.” There is then stated another obligation on the trustees; i. e., (6) the money paid over to them “shall be applied as a credit by them to the amount of money invested by me in said coal lands and stock as aforesaid, said earnings to bear interest at the rate of five (5) per cent per annum, from the time the same are paid over to my said trustees.” Following that, there is put upon the trustees the further obligation, (7) that, whenever Joseph Leiter, “shall have repaid my estate in full, with interest as above stated, the whole amount invested in said coal lands and Universal Fuel Company, * * * my said trustees shall execute and convey to my said son Joseph Leiter,” in fee simple, by proper deed, the coal lands, and turn over to him all the shares of the Universal Fuel Company.

Taking then what might be called the seven general ideas so expressed in clause 6, and putting them in, perhaps, more logical order than they appear in the text, we have the following:

1. The testator devised and bequeathed his coal properties to the trustees;

2. The trustees were to hold them in trust and permit Joseph Leiter to manage, control and operate them;

3. If Joseph Leiter undertook to manage and control them, he was to pay over the net rents, issues, profits and dividends to the trustees;

4. The money so paid over to the trustees should be applied by them as a credit on the amount of money invested by the testator in the coal properties, and bear interest at the rate of 5 per cent per annum from the time they are paid over to the trustees;

5. Whenever Joseph Leiter should have repaid the estate in full “with interest as above stated, the whole amount invested” in the coal properties, the trustees should execute and convey to him the properties in question;

6. The amount of money invested in said properties was shown on the testator’s books; and

7. “in ascertaining the amount invested in said properties from time to time, interest at 5% per annum, without compounding, shall be added thereto.”

As Joseph Leiter, from the testator’s death in June, 1904, to December 24, 1924, chiefly through the Zeigler Coal Company, undertook to manage and control coal properties, but did not meanwhile pay over to the trustees any “net rents, issues, profits and dividends,” and as on the other hand, as set forth in the decree of December 24, 1924, he did pay over on that date to the trustees under the will, the aggregate sum of $2,038,749.01 — part of which, $1,034,534.68, was admitted by all, to belong to the corpus of the estate— the chief question is, in order to determine the quality of the balance of the fund, what did the testator intend when using the words “the amount of money invested in said properties is shown on my books * * *, and in ascertaining the amount invested in said properties from time to time, interest at five (5) per cent per annum, without compounding, shall be added there-

The ultimate source of the contest lies in the use of the word “interest” in fixing the formula or standard by which the amount ultimately to be paid must be ascertained. Does the $2,038,749.01 contain any element of interest qua interest, and, therefore, distributable income? Of course, that sum is in and of itself the ascertained “amount” that the-sixth clause expressly and definitely specifies — after making a simple computation from definite facts, by using the rule prescribed by the testator — that Joseph Leiter was bound to pay e% bloc to the trustees at the time he requested and received title to the coal properties. "What Joseph Leiter then was bound to pay en bloc to the trustees in order to get title to the coal properties was the ascertained “amount” that clause 6 expressly and definitely specified should be determined by making a simple computation pursuant to the rule prescribed. Ho one denies that clause 6 fixed the formula, and no one denies that it was properly applied, and that the ascertained “amount,” $2,038,749.01 was correct. But because in stating the terms of the formula, in prescribing the measure of the total or final amount, the word “interest” was used, it is claimed that, although, seemingly, at first blush, intended only to show how the total or final amount should be ascertained, nevertheless, by the words he used, he also intended that the 5 per cent per annum should be considered as income, and not corpus. Of course, the conditional gift created by clause 6 did not create, on the death of the testator, a debt on the part of Joseph Leiter to the trustees of the estate. The property involved was held by the trustees as part of the principal or corpus of the estate, and there was no obligation on Joseph Leiter, then or thereafter, to pay any interest of any kind on any indebtedness, and when, 20 years after the death of the testator, Joseph Leiter for the first time undertook to pay the ascertained amount and accept the gift, and receive title, he paid no interest qua interest, and was not required to pay any, as there was no sum on which interest had been running. He was merely to pay a lump sum ascertained in a certain way, and when the total amount was figured out according to the rule prescribed by the testator and paid over to the trustees, it merely took the place, as an amount en bloc, of the coal properties themselves, which up to that time had remained part of the corpus of the estate.

The coal properties at the time of the testator’s death belonged to his estate, and title to them passed to his trustees. That gave the trustees not only title to the coal properties, "but also the right to any income which might be derived from their use, and from that, it follows that if Joseph Leiter had died or renounced the gift, and the trustees subsequently sold the coal properties, whatever they received for them would take the place of the coal properties themselves and be of the same nature or quality; that is, part of the principal or corpus of the estate, and thereafter, if what the trustees received was invested and produced income, that would be distributable under the will. The will, however, required the trustees to hold the coal properties, subject to an election by Joseph Leiter to manage and control them, and to his right to take them over at what may be properly called a fixed amount. As it turned out, Joseph Leiter availed himself of his privilege, not only of operating the mines, but of paying over the amount which the will provided as a prerequisite to his obtaining title. He got the properties for the amount which the testator had fixed, and which was determined by what the books showed, with 5 per cent thereof added to make the total.

Clause 6 provided, in our judgment, that Joseph Leiter could obtain title to the properties in question from the trustees whenever in his lifetime he paid what it cost the testator, with 5 per cent in addition. The will provided, as we have said, a fixed standard by which the amount to be paid was to be ascertained or measured. It designated a particular mathematical computation. It prescribed that “in ascertaining the amount invested in said properties from time to time, interest at 5% per annum, without compounding, shall be added thereto.” Of course, the words “interest at 5% per annum’’ are a symbol merely of number and not of quality. The use of the word “interest,” in a sense, is an obvious misnomer, but was used with the others apparently for convenience, as an arbitrary standard of measurement, and to avoid circumlocution. Of course, as we have, said, there was nothing due from Joseph Leiter to the trustees until he saw fit to comply with clause 6, and so there was nothing upon which interest could run, and the word was out of place. There is no such thing as interest, compensation allowed by law or contract for the use, forbearance or detention of money where there is no use, forbearance or detention, and here there was none, because there, was no legal obligation whatever of any kind upon him. Interest qua interest is merely an incident to a debt to be paid from time to time, but here, as there was no debtor, there could be no such interest. “Interest is compensation for the use of money which is due.” Cochran v. Boston, 211 Mass. 171.

The will also provided that the net earnings from the coal properties to be paid by Joseph Leiter to the trustees, if any, are “to bear interest at the rate of five per cent per annum.” The word “interest” so used does not mean interest qua interest. It was used, with its context, as a standard of measurement, in making out a credit account.

The word “interest” in the expression, “with interest as above stated,” in the latter part of clause 6, has direct reference to the use of that word in the earlier expression, “in ascertaining the amount invested in said properties from time to time, interest at five (5) per cent per annum, without compounding, shall be added thereto”; in other words, it is used with the others, in a similar way, and the whole expression is merely a symbol of number and not a symbol of number and quality combined.

The word “interest” is a word of great flexibility, and, depending upon the context, may connote any one of many meanings. Certainly here, where a principal amount, a totality, a final sum, the amount of a commercial investment is to be ascertained in order that the prospective payor may know just what amount he is to pay over, and the words given us are “interest at five per cent per annum, without compounding, shall be added thereto,” they are intended merely as a prescribed mathematical formula to be used in reaching a single ultimate amount. It is exactly the same, we think, as if the will had said, “the equivalent of interest at five per cent per annum, without compounding shall be added thereto.” The words of the will, “shall be added,” import that, after the addition, there is then, and then only, an ascertainment of the amount invested, and, when that is done, the formula, and all the words that make it, has served its intended purpose, and its only purpose, and it is, in meaning and application, exhausted. To pick out a single word from the formula and make from it an intended cleavage between income and principal — a subject wholly foreign to the purpose of the particular text — seems to require repudiation of obvious meaning and the interjection of a merely conjectural possibility.

In clause 5 of the will, there is a formula for determining the annual net income to be paid to each child. It may be illustrated as follows: (The amounts of gross income and interest on advancements are here hypothetical.) Assuming the total income for the first year to be $600,000, of which the widow would receive $200,000, the balance is to be divided by four, the number of children, making a gross income for each, of $100,000. But to ascertain the total net income to be divided between the four children, the formula prescribed that there is to be added to their total gross income of $400,000, an amount equal to 4 per cent interest on the respective advances made to each child. The words of the will are, “which said interest on said advances shall be .treated by my said trustees as so much additional income received by them, and the amount thereof shall be by my said trustees divided into four (4) equal parts or shares.” It also provides that each child shall receive one of such parts, “after deducting therefrom the amount due by her as interest at the rate of four (4) per cent per annum on the advancements ’ ’ made to him or her.

Taking, then, $400,000 as the gross annual income, and $1,000 as representing 4 per cent interest on the amount of the advancement of each of the three daughters, and $4,000 as representing 4 per cent interest on the advancement to the son, the total amount of “interest on said, advances,” “which is to be treated as so much additional income received by the estate,” would be $7,000, and the amount to be divided into four parts would be $400,000 plus $7,000, or $407,000. Dividing that by four, the number of children, and the result is $101,750. The formula then prescribes that each child shall receive that amount after deducting therefrom interest on his or her advancement. Deducting $1,000, the amount of such interest, from $101,-750, leaves $100,750, the net annual income of each of the three daughters. And deducting $4,000, the amount of the interest on the son’s advancement, from $101,750, there is left $97,750, the net income of the son. Of course, three times $100,750, plus $97,750, make $400,000, the gross income we started with. This may seem prolix, but we think it is significant. It is evidence of the use of term “interest” in another formula in the same will and prescribed for a similar purpose, the ascertainment of a particular amount, just as the phraseology of clause 6 uses the same term in creating a prescribed formula in order merely to ascertain — and exists and is stated for no other mentioned purpose — a particular total amount.

Clause 5 provides a formula for ascertaining the amount of annual income for each, and clause 6 provides a formula for “ascertaining the amount invested,” from time to time in the coal properties. It is true that clause 4 says, “an amount equal to four (4) per cent interest,” and in clause 6 it says, “in ascertaining the amount invested in said properties from timé to time, interest at five (5) per cent per annum, without compounding, shall be added.” In substance, however, considering the whole of clause 6, its purpose and that of the whole will, there is evidenced on the subject of determining an “amount,” no qualitative difference of intention from that expressed in clause 5. There was provided in each case a formula for the determination of a particular “amount,” and the formula in each case was for that purpose only. To attribute the meaning to the word “interest,” which is claimed for it by the life tenants, seemingly, would be magnifying a trifle into an expression of intention on a subject that was not mentioned nor even suggested.

It is urged that the provisions of the sixth clause were for the benefit of Joseph Leiter, and were not intended for the benefit of the remaindermen. The answer to that is, the words must be taken as written and in their normal sense, and if, interpreted in that way, they show, as we think they do, what we have already explained and stated then it is not the right of a court to distort them in order to benefit the life tenants. The ideal, or what might be expected, does not control. The words of the will are paramount.

It is true that if Joseph Leiter, one year or five after the testator died, had paid to the trustees the then amount ascertained as prescribed, the life tenants would have been, immediately, entitled to receive all income thereafter derived by the trustees on the particular sum paid by Joseph Leiter for the properties in question. But the money was not paid until the expiration of 20 years, and, in our judgment, the will did not make any part of it income, or a source of income, until it was paid.

It is further urged that the only persons injured through a delay in the payment to the trust estate of the amount provided for in clause 6 were the life tenants, and that it could not make any difference to the remaindermen whether Joseph Leiter paid the necessary amount to the estate the day after the testator’s death, or 20 or 30 years thereafter. But putting the construction we do upon the will, it was evidently the intention of the testator that that part of the corpus of the estate represented by the coal properties, if taken over by Joseph Leiter, should increase in value from year to year, at the rate of 5 per cent of the book investment, and there is nothing unreasonable in that, as it is common knowledge in the commercial world that in figuring on an investment, a careful, businesslike owner generally considers it as costing him the cash investment, together with the equivalent of conventional interest added from year to year.

It is urged that there was an equitable conversion of the coal properties. In Howard v. Peavey, 128 Ill. 430, the court said:

“The test is, has the will or deed absolutely directed that the conversion be made? In order to work a conversion while the property remains unchanged in form, there must be a clear and imperative direction to convert it. If the act of converting is left to the option, discretion or choice of the trustees or others charged with making it, no equitable conversion will take place, because no duty to make the change rests upon them.” Citing 3 Pomeroy’s Eq. Jur. sec. 1159 et seq. and authorities cited.

Title to the coal lands was to remain in the trustees until Joseph Leiter fulfilled — and there was at no time any binding obligation on him — the requirements of clause 6, and, so we are not justified in considering the will as producing an equitable conversion. We are not entitled to consider that done which, admittedly, might never be done. It is argued that the testator intended that the coal properties should be converted into income producing property. The will does not provide that they shall, but only that, dependent entirely upon the voluntary conduct of Joseph Leiter, they may.

In Gibson v. Bott, 7 Ves. Jr. 89, on which certain appellees rely, the testator left certain property to his executors “upon trust that they shall and do, as soon as conveniently may be after his decease, make sale and absolutely dispose of and convert into ready money all such parts thereof as shall not consist of money,” and Lord Eldon applied the principle “that what is directed to be done shall be considered as done.” In that case, a sale by the executors as trustees was mandatory, while in the instant case, the trustees were entirely subservient to the will of Joseph Leiter and if he died without accepting the gift, there was no obligation on the trustees to transmute the coal properties into money. Likewise in Taylor v. Clark, 1 Hare 161, the directions to the executors, as trustees, were mandatory, and they had complete authority to make a sale or bring about a conversion. Also, in Lawrence v. Littlefield, 215 N. Y. 561, “the power of sale contained in the will was an imperative one to sell all the real property, ’ ’ with certain exceptions, and the court held “that there was an equitable conversion of all her real property, excepting that so specifically devised as of the time of her death.”

In each of the foregoing cases, the trustees were bound to sell, and, also, in and of themselves, without dependence on any one else, had full power to do so. In the instant case, the transmutation of that part of the corpus of the estate made up of the coal properties into money, was dependent entirely on the action of Joseph Leiter, and whether or not in his lifetime that transmutation would take place, depended upon him, and in no way upon the trustees. As far as the judgment or conduct of the trustees was concerned, the coal properties remained part of the principal, and they, in and by themselves, of their own volition, were powerless to make any change.

In clause 4, the will says: “The entire principal, however, of the estate held under trust in this paragraph of my will created, shall continue to be held by the said trustees until the death of the last surviving of my said children.” But, from the devise and bequest of “The entire principal” it is expressly provided in clause 4, that the coal properties are excepted. The learned chancellor, according to a statement made by him- — which is set forth in the brief of counsel for Joseph Leiter, but which is not disclosed in the record — deduced from the devise and bequest, in clause 4 just referred to, that as they made no reference to any additions to the estate, the result was “the will was one — if it may be so denominated — of distribution, and not of accumulation.” As, however, the coal properties were expressly excepted from the devise of the principal estate made by clause 4, and they were expressly devised and bequeathed to the trustees only by clause 6, the latter alone controls and determines whether, as to those properties, there was to be accumulation or distribution. We are practically told by the testator, as to the coal properties, not to consider clause 4, but to consider only clause 6. There is, therefore, nothing in the will on this subject, save in clause 6, that helps us. Clause 6 is almost like a will within a will. It involves an excepted set of property rights, which are in terms segregated from the “entire principal” of the estate. Considering what it covers and accomplishes, it is brevity itself. It only extends to one page of typewriting, double space. And yet it involves the transfer of property interests valued at millions. Small wonder, then, to avoid periphrasis, he used the expression here in controversy. .And, certainly, if he had intended to interject a brand new subject — the segregation of the amount of 5 per cent of the amount shown on the books, and the designation that it should be distributable income, and only the amount shown on the books, corpus — he would have incorporated or mentioned it, at least, as a subject-matter. In onr judgment, clause 6, and the whole will, is silent on that matter.

It is argued for the life tenants that in the absence of any direction in the will to the contrary, it is to be presumed that the testator intended the remaindermen to receive, so far as possible, the same estate left by the testator; i. e., neither increased nor diminished except by change in the value of the specific property devised. In our judgment the will does contain, in clause 6, such express directions and provisions to the contrary so that there is no need to indulge in any presumption in order to discover the intention of the testator, and, as the result of a normal interpretation of the words of that clause, the will does provide for a regular annual increase in the estate left to the remaindermen in case Joseph Leiter take it over by paying the prescribed amount. It may be if Joseph Leiter had turned over the rents and profits to the trustees that then the amount he was required to pay to get title would have been paid over long ago, and, as corpus of the estate, would have been producing distributable income. It may be that the life tenants have suffered a deprivation as the result of the course he has pursued. That, however, is immaterial, and it is not an issue here.

In conclusion, after careful consideration of the matter, we think the will shows it was the intention of the testator — if his son at any time undertook to accept the gift or proffer made by clause 6, by paying a sum in money — that the amount to be paid should be ascertained by taking what the books showed and adding 5 per cent thereto, and that it was his intention that the total amount so ascertained should take the place of the coal properties and become, in toto, a part of the principal or corpus of the estate in the hands of the trustees.

In our opinion the $1,004,214.33, which was paid to the trustees, belongs to the principal or corpus of the estate of Levi Z. Letter, deceased. The decree of the chancellor, entered on July 10, 1925, is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.

Reversed and remanded with directions.

Thomson, P. J,, and 0 ’Connor, J.; concur.