text:
    Western Smelting and Refining Company and Bekins Van and Storage Company, Appellants, v. Benj. Harris and Company and Mitchell-Jackson, Inc., Appellees.
    Gen. No. 40,663.

      Opinion filed December 13, 1939.
    Rehearing denied December 27, 1939.
    Lederer, Livingston, Kahn, Adler & Adsit, of Chicago, for appellants; Charles Lederer and Sigmund Livingston, of counsel.
    A. J. Schanfarber, Sidnet J. and Arthur Wolf and J. Robert Cohler, all of Chicago, for appellee Benj. Harris & Co.

   Mr. Justice Burke

delivered the opinion of the court.

On January 8, 1937, Benj. Harris & Company instituted an attachment suit in the municipal court of Chicago, naming the Western Smelting & Refining Company as defendant, arid Mitchell-Jackson, Inc., as garnishee. The affidavit in attachment averred that the defendant was a nonresident, and that its place of business was at Omaha, Nebraska. The amount claimed was $1,500. Plaintiff’s place of business was at Chicago Heights, Illinois. Plaintiff claimed that the defendant had breached the agreement to sell to it a carload of mixed brass, located at the Mitchell-Jackson, Inc., warehouse at Chicago. The $1,500 was the amount of damages which plaintiff claimed it suffered because of the breach of contract. An attachment bond in the sum of $3,000 was approved and the attachment writ issued. Publication was duly made as to the defendant which was a nonresident. Defendant did not appear or answer, and an order of default was entered against it. The garnishee, Mitchell-Jackson, Inc., answered, in substance, admitting that it had the carload of brass and denying that the same belonged to the defendant. On February 10, 1937, Melvin Bekins of Omaha, Nebraska, an individual who operated under the name of Bekins Van & Storage Company, filed an intervening petition, averring that he had delivered to Mitchell-Jacks on, Inc., of Chicago, the carload of brass, and received a warehouse receipt therefor, that he was in possession of the warehouse receipt and that he owned the merchandise. He asked that the attachment writ be quashed. On April 7, 1937, plaintiff was given leave to amend the affidavit of attachment by increasing the amount claimed from $1,500 to $4,000, which amendment was made upon the face of the affidavit by drawing a line through the numerals “$1,500.00” and writing above the sum of “$4,000.00.” No notice of the amendment was given to the defendant in attachment, nor was there any service by publication of said amendment. The court, entered a rule that the defendant answer within five days. The rule was not served upon the defendant. The court entered upon a hearing of the cause on April 12, 1937. On April 13, 1937, the principal defendant was again defaulted. The court heard the case without a jury and between the intervenor and plaintiff, found the issues in favor of plaintiff. On April 13, 1937 the court entered judgment against the principal defendant in the sum of $3,750. It further entered judgment against one carload of mixed brass in the possession of the garnishee and found that the brass was the property of the principal defendant; directed that the garnishee deliver the carload of brass to the bailiff of the conrt on special execution; that the bailiff, out of the proceeds of the sale, pay the garnishee its storage charges of $465.60, the. plaintiff the sum of $3,750 and costs and interest thereon, and that the balance, if any, be paid to the principal defendant. At the time of inserting the amendment increasing the amount of the claim from $1,500 to $4,000, no additional attachment bond was furnished. Thirteen days after the rendition of the judgment, namely, on April 26, 1937, plaintiff presented for approval a new bond in the sum of $8,000. The same was approved over the objection of the attorney for the intervenor. The intervenor appealed to this court, which, in an opinion in Benj. Harris & Co. v. Western Smelting & Refining Co., 294 Ill. App. 610 (Abst.), affirmed the judgment of the trial court. The intervenor petitioned the Supreme Court for leave to appeal from the judgment of the Appellate Court. The petition was denied. We have examined the record of the trial in the case which was previously appealed. The intervenor, Melvin Bekins, proprietor of the Bekins Van & Storage Company, in that trial maintained that he was the owner of the brass, that he had sold the brass to the principal defendant, Western Smelting Company, but had not been paid therefor and had not delivered the warehouse receipt to the purchaser because such purchase price was not paid. During the trial and while Mr. Bekins was on the witness stand, counsel for plaintiff tendered to him the sum of $5,626.40, claiming'that to be the purchase price of the brass, less the accumulated storage charges. The tender was refused. At the conclusion of the trial, the court found that the brass was the property of the principal defendant and denied the claim of the intervenor. On July 19, 1938, more than a year after the entry of the judgment, the Western Smelting & Refining Company and Belrins filed a petition in the municipal court under section 21 of the act' governing that court. The petition set up the facts as herein related. The principal defendant contended the court did not have jurisdiction to enter judgment against it. In the alternative, the intervenor asked that the special execution in attachment be stayed until the amount tendered to him on the trial of $5,626.40 was paid to him, or brought into court, or that the court order the proceeds of the sale to be brought into court. The plaintiff moved to strike the petition, which motion was overruled. It then moved to set aside the order denying the motion to strike, which motion was also overruled. Plaintiff then answered and substantially admitted the facts set out in the petition. It also asserted that the principal defendant contributed to the expense of defending the attachment suit. On the trial of the petition under section 21, no evidence was introduced to sustain the averment of the answer that the principal defendant contributed to the expense of defending the attachment suit. The answer also set out that the principal defendant was notified of the original appeal by Belrins. There is no dispute that a copy of the notice of appeal in that case was mailed to and received by the defendant. The defendant did not appear in the Appellate Court. The principal defendant contends that the judgment in attachment against its property is void.

Section 22 of the Attachment Act (sec. 22, ch. 11, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.056]) provides for constructive notice by publication and mail in attachment suits, and that such notice shall state “for what sum” the attachment is made. The purpose of the provision is to inform the defendant that his property within the jurisdiction of the court is being seized for the purpose of paying not more than the amount appearing in the notice. Rule 126 of the Municipal Court of Chicago provides that:

“In case any defendant shall not have entered his appearance at the time an order for amendment of plaintiff’s statement of claim is granted, plaintiff shall cause to be served upon the defendant a copy of such amendment with a notice of the granting of such order.” Two notes follow Rule 126. Note 1 reads: “As every summons has attached thereto a copy of the praecipe and statement of claim, the defendant, when served, is entitled to assume the claim thus stated is the only one he is called upon to meet. Therefore, he may be willing to be defaulted as to that claim, whereas he might not be willing to submit to a default as to the claim as amended. As the summons has attached thereto a copy of the statement of claim the order amending it, when served upon the defendant, should likewise have a copy of the amendment attached to it, the same rule should apply in case of the amendment of the counterclaim.” Note 2 reads:

“By Rule 299 notice given of an amendment of a pleading to a party who has not entered his appearance must be served personally in the same way as a summons, or if the party is one authorized to be notified by publication, there must be a publication of notice. ’ ’ Section 20 of the Municipal Court Act gives that court, power to adopt rules as to practice. In the instant case, the validity of these rules is not assailed. At the time of the entry of the order granting leave to amend, the court also entered a rule upon defendant to answer the amended affidavit and claim within five days. It cannot be doubted that the court intended that the defendant should have an opportunity to answer. Manifestly, the defendant could not answer unless it had notice of the rule. No notice was given by publication or otherwise. The effect of the amending order was to set aside the previous default. Under the authorities of this State an amendment materially increasing the ad damnum, is an amendment of substance. As indicating the trend of thought, it is interesting to observe that section 34 of the Civil Practice Act (sec. 158, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.034]) provides that except in case of default, the prayer for relief shall not be deemed to limit the relief obtainable. A person receiving a notice in attachment that a claim for a certain sum of money will be asserted, might be willing that judgment be entered for an amount not exceeding such sum. However, if judgment could be entered for a greater sum without giving notice of the claim for the increased amount, such practice would be manifestly unfair. The fact that the Attachment Act requires that the notice set out the amount of the demand, shows that the legislature regarded that item as important. The court, and presumably plaintiff, also looked upon notice of the increased demand as essential, as otherwise the entry of the rule requiring the defendant to answer the amendment within five days would be an idle gesture. On the plainest principles of justice, we conclude that the court was without jurisdiction to enter the judgment against the principal defendant.

A second point urged by the principal defendant is the failure of plaintiff to file an attachment bond upon amending the affidavit of attachment. Section 4a of the Attachment Act (sec. 4a, ch. 11, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.036]) provides that before granting an attachment, the clerk shall take bond and sufficient surety in double the sum sworn to be due, and that every attachment issued without a bond and affidavit taken, is hereby declared illegal and void and shall be dismissed.” The judgment entered was for $3,750. At that time the penalty on the bond was $3,000. The minimum amount of the bond under the statute should have been $7,500. Thirteen days after the judgment had been entered, a new bond was submitted and approved in the sum of $8,000. The defendant contends that in fact, the new bond was presented after he had served notice to appeal. That is denied by plaintiff. The order approving the new bond recited that:

‘ This matter coming on to be heard on motion of the attorneys for the plaintiff in the above entitled cause for leave to file an attachment bond in the sum of $8,000 in lieu of the attachment bond heretofore filed, and it appearing to the Court that Bekins Van & Storage Company, intervening petitioner, has objected to the sufficiency of the attachment bond, and it further appearing to the Court that at the time that said motion was made the attorneys for the plaintiff stated in open Court that a new attachment bond would be filed in-double the amount of plaintiff’s claim, and it further appearing to the Court that at the time that the plaintiff increased the amount of its damages, the plaintiff stated in open Court that it was willing to file a new attachment bond in any amount set by the Court. ...” In a factual situation similar to the one in the case at bar, the Supreme Court of Maryland, in Lanasa v. Beggs, 159 Md. 311, said (p. 316): “The exaction of this bond is not only a protection to the alleged debtor but also a deterrent to false, unfounded, or speculative claims; and, whether the attachment issued be dissolved or not, this bond continues effective until the proceedings set in operation by the attachment are at an end. Hence the statute contemplates that the ratio of two to one between the penalty of the bond and the full amount of the claim of the attaching creditor ex delicto or ex contractu remain constant throughout the entire litigation. If this were not true, an attaching claimant in an action ex delicto or ex contractu could deprive the alleged debtor of the protection accorded by the statute by making his original claim less than ultimately intended, and then, after furnishing a bond in the inadequate penalty fixed by the reduced claim, enlarge it by amendment to meet his utmost expectation. A court could not permit such an obvious manoeuvre to defeat the express and definite statutory prerequisite to its writ.” At the time the judgment was entered, there was no attachment bond, as required by the statute. Section 4a, part of which we have quoted, provides that every attachment issued without a bond and affidavit is declared illegal and void. If an attachment creditor were permitted to wait until after he had procured a judgment upon a default before entering into a bond in double the amount of his increased demand, there would be grave danger of fraud. If he secured a judgment for the increased amount, he would be safe in giving a bond as required by the statute. If, on the contrary, the judgment was against him, he would not have a bond on file, and the parties harmed would not have the protection which the statute intended to afford them. We are also of the opinion that section 28 of the Attachment Act (sec. 28, ch. 11, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.062]) providing that no writ of attachment shall be quashed nor the property taken thereon restored, nor any bond given canceled, on account of any insufficiency of the attachment bond, if the plaintiff shall cause a legal and sufficient attachment bond to be filed in such time as the court shall direct, did not permit the plaintiff to remedy the vital omission in the instant case. The intent of that section is to cure clerical and other deficiencies in the bond where there has been a bona fide attempt to comply with the statute. In the instant case, the judgment was entered in clear violation of the provision requiring a bond in double the amount of the claim. On this point also we agree that the court was without jurisdiction to enter judgment against the principal defendant.

So far as the principal defendant is concerned, the judgment was void because the court was without jurisdiction. The attaching plaintiff did not comply with the statute nor with the rule of the municipal court, which has the same force as a statute. The judgment being void for the reasons stated, the defendant had a clear right to petition the court to have the judgment vacated or expunged.

Plaintiff calls our attention to Rule No. 210 of the municipal court. Such rule does not apply to a situation such as is presented in the instant case. Here no attempt was made to serve the defendant by publication or otherwise after the amendment had been made. Therefore, we do not consider that Rule No. 210 is applicable.

A further point urged by plaintiff is that in the former appeal this court determined that the judgment was valid. The appeal was solely by the intervenor. We are of the opinion that the affirmance of the judgment in that appeal did not operate to prevent the principal defendant from questioning the jurisdiction of the court to enter the judgment.

Our remarks concerning the judgment, insofar as it affects the principal defendant, disposes of the case. Melvin Bekins, proprietor of the Bekins Van & Storage Company, has also appealed. In the alternative he contends that by tendering the sum of $5,626.40, plaintiff thereby admitted that it was indebted to him in at least that sum of money. He states that, whether accepted or not, the tender of the unpaid purchase price had the effect of removing the lien that the intervenor had, and that thereby the title of the goods vested in the purchaser, Western Smelting & Refining Company. We have carefully examined the authorities and agree with the contention of the intervenor. We also agree that the trial court had the right, under the authority of Galena & Southern Wisconsin R. Co. v. Ennor, 116 Ill, 55, to set aside the judgment or to compel payment of the tender by staying execution until the tender is paid. We are also of the opinion that the court had the right to entertain the petition of the principal defendant and intervenor under section 21 of the Municipal Court Act. The intervenor is bound by the judgment. There was a trial and judgment against the intervenor. On appeal the judgment was affirmed. In the instant proceeding the intervenor does not question the judgment or the jurisdiction of the court.

For the reasons stated, the order of the municipal court of Chicago denying the prayer of the petition is reversed, and the cause remanded with directions to enter an order allowing the prayer of the petition.

Reversed and remanded with directions.

Denis E. Sullivam, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Harry Manaster and Brother, Appellee, v. Nancy Baker Young, Executrix of Estate of Frederick G. Baker, Deceased, Appellant.
    Gen. No. 40,675.

      Opinion filed December 13, 1939.
    Gallagher, Rinaker, Wilkinson & Hall, and Golan & Golan, all of Chicago, for appellant.
    Henry J. & Charles Aaron, of Chicago, for appellee ; Franklin Raber and Sidney J. Hess, Jr., both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On or about July 9, 1927, the United Packers, Inc., was chartered as a corporation by the State of Illinois. It had a capital of $100,000, represented by 1,000 shares, each of the par value of $100. John M. Clair held 375 shares, plaintiff corporation 375 shares, and Frederick G. Baker 250 shares. On or about September 1,1928, Clair sold his stock to the other two stockholders and thereby plaintiff corporation became the owner of 650 shares and Baker 350 shares. At the time of the purchase of the Clair stock on September 1,1928, plaintiff corporation and Baker entered into a written contract concerning the terms and conditions under which the stock of each might thereafter be sold. By its terms, the contract was binding upon the heirs, executors and administrators of Baker. The pertinent part of the contract, insofar as the instant law suit is concerned, is paragraph 3, which reads as follows:

“In the event of the death of said Baker, the said Manaster agrees to purchase from the estate or personal representatives of said Baker within ninety (90) days from the date of his death, the shares of stock in the Company owned by him at the date of his death at the book value of said shares on the last day of the month prior to his death, and the estate and/or personal representatives of said Baker shall be obligated to sell such stock to said Manaster.” Baker was experienced in the meat canning business. He was made president of the corporation and placed in charge of the operation and management of its affairs because of his experience, knowledge and familiarity with that kind of business. Plaintiff corporation was engaged in the meat packing business and was not familiar with the meat canning business. Practically all of the stock of plaintiff corporation was owned by Harry Manaster and Henry Manaster, who are brothers. They controlled plaintiff corporation. The Manaster brothers invested a substantial sum of money in the canning enterprise because of the confidence which they had in Baker. If anything happened to Baker, plaintiff wanted to be in a position to dominate and control the corporation without outside interference. Baker, on the other hand, was a minority stockholder and desired to protect his estate in the event of his death. As president, Baker received a salary of $15,000 per year for some period of time. The company did not meet with the degree of success expected by its founders. It became necessary to retrench and cut down expenses in various ways. Baker’s salary was reduced. The Chicago office of the new corporation was moved into the office of plaintiff corporation. It occupied plaintiff’s office, rent free, and used the office equipment of plaintiff without charge. In the latter part of 1931 or the early part of 1932, the canning plant was moved from Green Bay to Chicago, and was located in premises purchased and equipped by plaintiff solely for the use of the new corporation. The business of the company continued to be operated at a loss. Baker died on June 8, 1933. He was then president of the company and a resident of Chicago. At the time of Baker’s death, the new corporation was insolvent to the extent of $34,000. Its liabilities exceeded its assets, including paid in capital and paid in surplus by the sum of $34,000. At the time of his death, the shares of stock had neither market value nor book value. Plaintiff then, through its officers Harry Manaster and Henry Manaster, took sole charge of the corporation and proceeded to operate and conduct its business without suggestion or without interference from any outside source. The business was conducted on the credit and money furnished by plaintiff. Whatever increase there was to the net worth of the corporation between the time of Baker’s death and the time of the institution of the instant proceedings, was due solely to the efforts, skill, knowledge and ingenuity of the Manaster brothers and to the credit, reputation and financial assistance extended by plaintiff corporation. Baker, in his lifetime, invested $35,000 in the corporation, by way of stock subscriptions and the purchase of shares, and contributed $6,300 to the surplus capital. During the same period of time, plaintiff corporation invested $65,000 by way of stock subscriptions and the purchase of shares of stock, and $11,300 by way of contribution to surplus capital. During the lifetime of Baker, he withdrew from the United Packers, Inc., in the form of salary $70,000. During that period of time neither of the Manaster brothers, nor plaintiff corporation, drew any money by way of compensation for services rendered. Baker left him surviving as his sole heir and next of kin his widow, Haney Baker. Subsequently, the widow married Harry D. Young. Baker left a will in which he named his wife as the executrix of his estate and his sole legatee. She did not, however, file an application for letters testamentary until June 1,1937. The letters testamentary naming her as executrix under the last will and testament of her deceased husband, were issued to her on July 7, 1937. An inventory of the estate was filed on October 27,1937, and it listed the 350 shares of stock as an asset. Prior to and at the time of Baker’s death in June, 1933, the Manaster brothers knew Mrs. Baker and had visited in her home and she in theirs, and they knew she was Baker’s only heir at law. Following Baker’s death, Harry Manaster wrote Mrs. Baker on July 11, 1933, extending to her his sympathy and condolence in the loss she had suffered. The parties have stipulated that no attempt was made by plaintiff to purchase Baker’s stock in accordance with the contract of September 1, 1928, until July 8, 1937, when plaintiff addressed a letter to Mrs. Young, as executrix, calling attention to the contract and offering to purchase the stock for the sum of $500. She did not comply with the request contained in the letter, and on July 21, 1937, plaintiff filed its complaint for specific performance, praying that the court determine the book value of the capital stock of the corporation as of May 31, 1933, and that the executrix be directed to deliver to plaintiff the 350 shares of capital stock owned by Baker at the time of his death, upon the payment by plaintiff to her of an amount equal to the book value of the stock as of May 31, 1933; and that in the event that the book value ascertained by the court should be less than $500, that she be required to assign and deliver the 350 shares of stock upon the payment by plaintiff to her of the sum of $500. Defendant answered and the cause was heard by the chancellor, who entered a decree in accordance with the prayer of the complaint, from which decree this appeal is prosecuted.

During the year 1934, the new corporation, through the influence and participation of plaintiff, succeeded in securing contracts for the canning of meat for the federal surplus relief commission. The meat which was canned was from the carcasses of animals purchased by the commission under a national emergency resulting from the great drought of 1934. From the contracts with the commission, a very substantial profit was derived, which is reflected in the profit and loss statement for the year 1934. However, subsequent to 1934 the new corporation was compelled to rely solely upon the sale of its own products. The earnings and profits for the years 1935, 1936 and 1937 show a substantial decline from the profits of the year 1934. The net worth of the company at the close of 1936, as contended by plaintiff, was $40,000, and the net worth of the company as shown by the balance sheet as of June 30, 1937, was approximately $17,000. Defendant disputes the latter figures and argues that certain charges made by plaintiff against the new corporation are improper. The stock was not listed on any exchange, nor was it sold or dealt in on any public market or otherwise. The corporation never paid a dividend and never operated on a profit outside of the year 1934, when it was canning meat for the federal surplus relief commission. Following the letter of condolence written by Harry Manaster to the widow on July 11, 1933, the evidence shows that the parties had no contact until February, 1934, when Mrs. Young attended the annual meeting of the stockholders. She also attended the annual meeting of the stockholders in February, 1935. She testified that she attended this meeting pursant to notices addressed to her. She» did not produce the notices because, she said, they were lost by her attorney. No testimony was introduced contradicting the evidence that the notices were addressed to her. The only notice which she introduced was a notice of the annual meeting to be held in February, 1937, which was addressed to Frederick Gr. Baker. She stated that at the meeting in February, 1934, she told Harry Manaster that Baker had left a will naming her as sole legatee. There is no denial of that testimony. She also testified that in that conversation Harry Manaster asked her how much insurance Baker had left and that the company needed additional capital, and that she told him Baker had but little insurance. Harry Manaster did not deny that a conversation took place in February, 1934, but did deny that they discussed Baker’s insurance, or that he told her the company needed money.- Mrs. Young stated that at the meeting in February, 1934, she was asked if she wanted to vote, and that she said, “No.” She also testified that at that meeting Harry Manaster gave her an operating statement of the corporation for the years 1933 and 1934, and that she wrote him a letter on February 21, 1935. The letter was received in evidence. It requested specific information regarding the operating expenses etc. for the years 1933 and 1934. She received in reply a letter dated March 4, 1935, signed by Henry Manaster, informing her that all transactions between the new corporation and plaintiff were handled by Harry Manaster, who at that time was in Arizona and that the matters mentioned in her letter would have to be held in abeyance until he returned to the city. She testified that shortly after receiving this letter, she called him on the telephone and told him that she was not satisfied with the figures and-that something was wrong. The record does not show that the parties had any contact in 1936. In the month of February, 1937, she executed proxies in her name to her then husband, Harry D. Young, and to another man named Wesley G-. Brocker, for the 1937 annual meeting of the stockholders. Young and Brocker attended the meeting. They testified that at the meeting the attorney for the corporation examined the proxies and stated they were not in good order and that they would not be allowed to vote; that on inquiring of the attorney whether they would be allowed to ask specific questions concerning the earnings and financial condition of the corporation, he said, “No”; that he also said, “You are strangers to us. We do not know you. We do not care for you to do this.” They quoted the attorney as saying that he was glad to know that Mrs. Young still had her stock, and that he did not know that; that he had heard once that she had disposed of it. He said that Mrs. Young should have put the stock in proper order; that they would wish to sit down with her and discuss the affairs of the company; that they had brought it back in good fashion, but that the company would need money and they would want to sit down with her and talk over what she wanted to do about it. On February 17, 1937, which was the same day as the stockholders meeting, the attorney for the corporation wrote a letter to Mrs. Young, reading as follows:

“At the annual meeting of the stockholders of United Packers, Inc., today, Mr. Harry D. Young and Mr. Wesley Gr. Brocker presented proxies signed by you. Inasmuch as you are not a stockholder of record and as Messrs. Young and Brocker were strangers to the officers of the Company, I was obliged to advise that the proxies could not be legally voted.

‘ ‘ However, it is . our desire to extend you every courtesy and I shall be glad to discuss the situation with you at any time. If you will telephone me at Central 8552, I will make an appointment with you for a convenient time.” Mrs. Young and her husband called at the attorney’s office and exhibited to him the stock certificate issued to her husband Baker. The certificate was indorsed by him and had been delivered to her prior to his death. The attorney was asked by. Mrs. Young to transfer the stock to her name, and he advised her that such transfer could not be made until the will had been probated and inheritance taxes released. He did not make any demand at that time for a transfer to plaintiff, nor did he assert any claim as to the right of plaintiff to purchase. She quoted the attorney as saying that he did not know Mr. Young and Mr. Brocker when they appeared at the meeting, but that had she, Mrs. Young, attended the meeting, she would have been accepted and that he, the attorney, could probably get her an offer for the stock. She stated she replied that she doubted that any offer they could secure would be acceptable to her.

In urging that the decree be sustained, plaintiff states that time is not of the essence of the contract, and that, therefore, in decreeing specific performance after the time fixed for performance, the court is not making a new contract for the parties. The intention of the parties as expressed by the agreement, controls on this question. In equity, time is not necessarily deemed of the essence of the contract, but if it is made so by the terms of an agreement, it will be treated in equity as in law, as of the essence; but even where the contract so provides, equity under peculiar circumstances may not enforce a forfeiture. Time may be made the essence of the contract by express stipulation to that effect, or it may be clearly shown by the wording. The precise phraseology is not important. (Zempel v. Hughes, 235 Ill. 424.) Where the contract is entirely silent as to the time, performance is required within a reasonable time. Defendant, on the other hand, insists that specific performance is not a matter of right, and that when one has abandoned a contract, equitable relief will not be decreed. If the conduct of plaintiff has been such as to show an intention to abandon the contract, then it cannot insist on specific performance of the contract. Plaintiff cites authorities that hold that where a contract is just and equitable, specific performance is a matter of right and not a favor. Defendant here does not contend that the contract is not fair and equitable. Plaintiff also argues that where an abandonment is relied upon, it must be shown to have been the clear intention of the parties, and that the burden of proof in establishing such abandonment, if any, is upon the defendant. Such abandonment, if any, must be. established by clear and convincing evidence. On these propositions of law, there is no serious dispute. The difficulty arises in applying the law to the facts of the case. Plaintiff maintains that until the executrix was appointed, there was no duly constituted or authorized person to whom tender could be made or performance demanded, or against whom a proceeding for specific performance could be instituted. Plaintiff states that where the personal estate of the deceased descends to the heirs or distributees, title thereto can be acquired only through the executor or administrator. Plaintiff also insists that failure to perform within the time required under the contract, was not due to the fault of plaintiff. We cannot agree with the position taken by plaintiff. Both parties knew of the existence of the contract. The officers of plaintiff knew of the death of Baker, knew that he had left a will and that his wife was the sole legatee and heir. She attended the meetings. At these meetings she was given information as to the condition of the corporation. A careful examination of the record convinces us that the corporation recognized her as a stockholder. The corporation, knowing of its obligation to purchase the stock, did not make any demand that she deliver the stock, or that she take steps to have herself appointed executrix, until four years had elapsed. In the meantime, she did not do anything to mislead the officers of the corporation. If the corporation was interested in enforcing its right to the stock, it could have made a demand within'a reasonable time after the death of Baker. Under the statutes of this State, the matter of having a will established and letters testamentary issued thereon, would involve no difficulties. The law requires any person having in his possession a last will or testament shall immediately upon the death of the testator, deliver up the will to the appropriate court of probate, and upon failure so to do the court may issue attachment and compel the production of the will. In case no one files a petition to have the will admitted to probate, it is the duty of the court to proceed to probate the will without a petition being filed. When the person named as the executrix in the will refuses to act, or is otherwise disqualified, the statute requires that the court commit the administration of the estate to persons in the same order as if the deceased had died intestate. It is, therefore, plain that the matter of securing the issuance of letters testamentary did not involve any difficulties. The conduct of plaintiff during a period of four years is entirely inconsistent with any intention on its part to seek performance of the contract. In fact, such conduct shows affirmatively that the plaintiff had abandoned the contract. Mrs. Young exhibited the stock certificate showing the transfer to her, to the attorney for plaintiff. If plaintiff had insisted at that time that it was the equitable owner of the stock, it could have suggested to Mrs. Young that she in turn indorse the stock certificate to the corporation. There does not seem to be any dispute that the assignment of the stock was a valid assignment. If the officers were not recognizing Mrs. Young as a stockholder, it is difficult to understand why they were giving her information and treating her as a stockholder. Their insistence, after four years, that she be appointed executrix, appears to be an afterthought. If plaintiff desired the stock, it would have been a simple matter for it to have made a demand within a reasonable time. The officers of plaintiff were experienced business men. Ordinary business judgment would dictate to them that the matter of their rights to the 350 shares of stock should be settled within a reasonable time after the death of Baker. We do not believe that a court of equity, under the factual situation disclosed, should .exercise its extraordinary power of granting specific performance in a case where the parties themselves have not exhibited any desire for performance in a period of four years. We are asked now to decree the defendant to deliver the stock to plaintiff which its officers themselves did not seek during the period of almost four years. Admittedly, the 350 shares of stock now have a book value of at least $4,900. Granting specific performance, on the record in this case, is not warranted and would be harsh and contrary to equitable principles. The proof clearly established that by its conduct and delay, plaintiff abandoned its right to insist on delivery of the 350 shares.

For the reasons stated, the decree of the circuit court of Cook county should be and it is reversed and the cause remanded with directions to dismiss the complaint for want of equity at plaintiff’s costs.

Reversed and remanded with directions.

Denis- E. Sullivan, P. J. and Hebel, J., concur.


author: Justice Burke.

text:
    Martin J. Hecht, Inc., Appellee, v. Frank Steigerwald, Appellant.
    Gen. No. 40,698.
    opinion filed December 13, 1939.
    Charles A. Bellows, for appellant; Aaron Soble, for appellee; Max Chill and Jerome S. Klein, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    People ex rel. Albert F. Webb, Appellee, v. William F. Propper et al., Defendants. Appeal of William H. Winterhoff et al., Appellants.
    Gen. No. 40,709.
    opinion filed December 13, 1939.
    O. I. Lewis, for appellants; O. I. Lewis, of counsel; Herbert A. Ellis, for defendant William F. Propper; John T. Murray, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    John Zuncic et al., Appellees, v. Jan Franc et al., also known as Educational and Benevolent Society “Ylova” of Chicago, Appellants.
    Gen. No. 40,721.
    Joseph E. Serhant and Wright & Kamin, for appellants; Leo J. Pelej and Alfred Kamin, of counsel; B. M. Steiner, for appellees.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    John E. Barry, Appellant, v. Commonwealth Edison Company, Appellee.
    Gen. No. 40,731.
    Opirnon filed December 13, 1939.
    Lloyd T. Bailey, of Chicago, for appellant ; Joseph W. Bailey and J. Theodore Kiggins,both of Chicago, of counsel.
    Isham, Lincoln & Beale, of Chicago, for appellee; Roland K. Smith, Jr., of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On August 21, 1937, John E. Barry, plaintiff herein, filed a complaint with the Illinois Commerce Commission against the Commonwealth Edison Company, a corporation, defendant herein. Therein he sets out that he is a tavern owner and operator at 6743 South Halsted street, Chicago, that he petitions for an investigation and a hearing against the defendant for depriving him of the use of electricity for light and power for his place of business and dwelling; that on November 24, 1936, from 7:15 p. m.- until 9:30 p. m. defendant deprived him of the use of electricity by removing the meter and disconnecting the wires; that on November 25, 1936, he spoke to a special claim agent of the defendant, who accused him of using more electricity than he paid for, and stated that he owed defendant the sum of $1,261; that he denied the accusations ; that from November 25, 1936, at 3:45 p. m. until November 27, 1936, at 3:45 p. m., he was deprived of the use of electricity; that the use of the current was restored when he agreed to pay defendant $800 at the rate of $200 cash and $50 per month for a period of 12 months for the unmetered current claimed by defendant; that he signed the agreement and made the payments under protest; that he can prove to the commission that the unmetered current - defendant accuses him of using, was never used by him or by anyone on the premises; that he can prove to the commission that defendant accused him wrongfully, unjustly and criminally in saying that he used the current for which he' did not pay. He requested the commission for a full hearing, for the return of all' money paid by him to defendant under the agreement which he claimed he signed under duress, plus attorney’s fees and loss of his business by reason of being deprived of electricity, and that the defendant be required to answer the charges, and that upon a final hearing, the commission shall enter such order in the premises as may seem meet. On February 3, 1938, an order was entered by the commission, which recited that there was a full hearing in which all the parties had an opportunity to present evidence. The order also recited that after an informal conference before the staff of the commission, defendant agreed to a further adjustment of the bill so as to reduce the amount from $800 to $697. The answer of defendant before the commission admitted the interruption of the service and the refusal to reinstate the same until plaintiff paid or agreed to pay the estimated bill for the unmetered service. Defendant denied that it demanded the sum of $1,261. Defendant admitted that after a conference with the members of the commission staff it reduced the estimated bill to the sum of $697. The order further recited that the evidence on behalf of the defendant was to the effect that, having some reason to suspect that the meter of the plaintiff was not registering all of the energy furnished to his premises, employees of the utility company installed a so-called electric meter on a pole outside of plaintiff’s premises, the meter being so connected as to measure all of the electric energy delivered to plaintiff’s premises and no other electric energy; that.the test meter was checked for accuracy both before and after its installation; that checks were made to determine the accuracy of the meter installed in plaintiff’s premises; that both meters were accurate within the limits recognized by the commission, and that such being the case, the readings of the two meters should be substantially the same; that instead, the readings of thé electric meter on the pole were very much greater than the readings of the house meter. The commission found that the evidence substantiated the contentions of defendant; “that during the period between September 24, 1936 and November 24,1936, the aforesaid check meter was in place and connected as hereinabove set forth and that under these circumstances the readings of the said test meter should have been substantially the same as the readings of the house meter in complainant’s premises, but that the readings of the two said meters were not the same, but that the reading of the check meter indicated a much greater amount, to-wit, approximately 448 kilowatt-hours, more electricity passing through the check meter than passed through the house meter during the same period; that the complainant has not given a satisfactory explanation of the matters and things hereinbefore set forth; that the alleged loose connections or other electrical trouble in complainant’s electric refrigerator during this period could not have reasonably produced the result indicated in' the foregoing findings; that by reason of the foregoing and all of the evidence of record in this proceeding the Commonwealth Edison Company has not acted unreasonably or without probable cause in the premises; and that the complaint in this matter should be dismissed and the parties left to their respective remedies at law. It is therefore ordered that the complaint filed by John E. Barry against the Commonwealth Edison Company in docket case 26,048 be, and it is hereby dismissed. ’ ’ On August 2,1938, plaintiff filed a three count complaint in the superior court of Cook county. The first count urged that defendant did wrongfully and unlawfully cut off his electrical current and thereafter refused to supply further current until he had paid the sum of $697, which sum was not due the defendant but was finally paid by plaintiff under protest. The second count alleged damages to plaintiff’s established tavern business as a result of said wrongful and unlawful cutting off of electrical current by the defendant. The third count alleged that defendant through its agents and servants, did, on September 30, 1937, and on divers other days, make and publish certain slanderous statements concerning the plaintiff, to the effect that plaintiff had stolen electricity by using a “jumper” on his electric meter; that because of such slanderous statements made by defendant, plaintiff suffered damages. Defendant filed a motion to strike the complaint and urged as a basis therefor that the commission had found adversely to the complainant on his complaint, and that the instant action was barred because of the order entered by the commission. In arguing the motion, the complaint and answer and the order entered by the Illinois Commerce Commission were introduced. The court sustained the motion to strike, dismissed the complaint and entered a judgment for costs against plaintiff, from which judgment he prosecutes this appeal.

Plaintiff first argues that his complaint and each count thereof stated a 'cause of action. Defendant did not predicate its motion on any failure of the complaint to state a cause of action, and therefore, on the first point the parties are not in disagreement. The second point which plaintiff maintains is that the order of the Illinois Commerce Commission was not res judicata. Under this point plaintiff states that the commission is without statutory power to render a judgment for money damages, and is, therefore, without power to enter an order which would deprive him of his action at law for such damages. . The Supreme Court of the United States points out in Baer Bros. Mercantile Co. v. Denver Rio Grande Ry. Co., 233 U. S. 479, that‘ awarding reparation for the past and fixing rates for the future involves the determination of matters essentially different. One is in its nature private and the other public. One is made by the Commission in its quasi judicial capacity to measure past injuries sustained by a private shipper; the other, in its quasi legislative capacity to prevent future injury to the public. ’ ’ Defendant concedes that the commission has no jurisdiction to award payment of damages resulting from the wrongful refusal of electric service. It insists, however, that the commission did have jurisdiction to determine whether plaintiff was “reasonably entitled” to service, or whether plaintiff was entitled to reparation for “excessive or unjustly discriminatory” charges. Section 38 of the Illinois Public Utilities Act (sec. 38, ch. Ill⅔, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.057]) provides, in part, that

1‘ Every public utility shall, upon reasonable notice, furnish to all persons who may apply therefor and be reasonably entitled thereto, suitable facilities and service, without discrimination and without delay.” Section 64 of the same act (sec. 68, ch. Ill⅔, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.089]) provides, in part, that “Complaint may be made by . . . any person ... by petition or complaint in writing, setting forth any act or things done or omitted to be done in violation, or claimed to be in violation, of any provision of this act . . . .” Section 60 of the act (sec. 64, ch. Ill⅔, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.085]) provides, in"part, that “The Commission . . . shall have power to hold investigations, inquiries and hearings concerning any matters covered by the provisions of this Act, or by any other Acts, relating to public utilities subject to such rules and regulations as the Commission may establish.” Section 72 of the act (sec. 76, ch. Ill⅔, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.098]) provides, in part, that “When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount.” Section 68 of the act (sec. 72, ch. Ill⅔, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.093]) provides that any party to the proceeding before the commission may appeal to the circuit or superior court, where the proceedings before the commission may be reviewed. That section concludes as follows:

“When no appeal is taken from a rule, regulation, order or decision of the Commission, as herein provided, parties affected by such rule, regulation, order or decision, shall be deemed to have waived the right to have the merits of said controversy reviewed by a court and there shall be no trial of the merits of any controversy in which such rule, regulation, order or decision was made," by any court to which application may be made for a writ to enforce the same, or in any other judicial proceeding. ’ ’ Section 72 of the act, insofar as it allows the commission to award reparation, merely provides a basis for a suit in the courts. If plaintiff had prevailed before the commission, and the company failed to pay the reparation award, then judgment could be enforced in the courts. In passing on the matters submitted to it by plaintiff, the commission determined that the defendant had violated no duty to plaintiff. As the gravamen of the instant complaint is the violation (which the commission found has not occurred), we agree with the trial court that plaintiff is precluded by the commission’s decision. The essential fact which plaintiff seeks to establish as a basis for a money judgment, has finally and conclusively been determined to the contrary in the proceeding before the commission. Plaintiff failed to avail himself of his right to an appeal from the order of the commission. Thereby, he is deemed to have waived his right to have the merits of the controversy reviewed by a court. He did not seek a review in the circuit or superior courts, and yet he is now attempting to accomplish the same result indirectly by filing an independent action. In effect, plaintiff is endeavoring to relitigate the matter which was determined before the commission. Having unsuccessfully sought relief before the commission, if he was still dissatisfied, the next step, in the course of orderly procedure would be an appeal to the circuit court. The commission having-decided the matters in controversy, concluded its order by dismissing the complaint and remarking that the parties were left to their respective remedies, if any, at law. The commission did not indicate that either of the parties had any other remedy at law, except by appeal from that order. We are of the opinion that the language did not preserve to the plaintiff herein the right to institute an independent action, the effect of which would be to set aside the order which the commission had entered.

For the reasons stated, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J. and Hebel, J. concur.


author: Mr. Justice Burke Mr. Presiding Justice Denis E. Sullivan

text:
    John H. Whitney, Appellant, v. Travelers Insurance Company, Appellee.
    Gen. No. 40,740.

      Opinion filed December 13, 1939.
    Julius H. Selinger, of Chicago, for appellant.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; David Jacker, Joseph M. Taussig, John M. O’Connor, Jr. and William H. Symmes, Jr., all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiff was an employee of the Stewart-Warner Corporation at its Chicago plant, and had been so employed for many years prior to December 22, 1933. That corporation had an arrangement with defendant whereby group insurance policies were issued covering employees who might wish to be insured under group policies. On December 22, 1933, plaintiff purchased a certificate of insurance, which provided for the payment of certain indemnities in the event of sickness or accident. On May 29, 1934, he became totally and permanently disabled by pulmonary tuberculosis, and since that time, has been confined as a permanent patient in the Municipal Tuberculosis Sanitarium of Chicago. At the time he became so disabled he was 44 years of age. On April 9, 1937, he filed his statement of claim in the municipal court of Chicago, based on the certificate of insurance, and alleging the above facts. He claimed accrued disability indemnities under the paragraph of the certificate, entitled, “Sickness,” from the date of his disability to the date of filing suit, giving credit to the defendant for the sum of $130, which he had received. Defendant answered that it had paid the sum of $130 under the certificate of insurance and thereby fully discharged its obligations under the certificate. Defendant filed a motion for summary judgment, which was allowed. There is no dispute, as to the facts. This appeal is prosecuted from the action of the court in allowing the summary judgment.

The disagreement of the parties arises from their respective contentions as to the meaning of clause B in the certificate, which reads as follows:

“Sickness, (b) In the sum of Ten Dollars ($10.00) a week for the period of disability commencing during the continuance of said policy while the Employee is insured thereunder, during which he shall be wholly and continuously disabled and prevented by bodily disease from performing any and every duty pertaining to any occupation, but no indemnity shall be paid for the first week, or for' more than thirteen consecutive weeks, of such disability, or for disability resulting from any disease’ for which he is not treated by a physician, nor shall more than thirteen weeks indemnity be paid in any event to an employee during any twelve consecutive months for disability suffered after his sixtieth birthday. ’ ’ Plaintiff insists that under the language quoted, he is entitled to receive indemnities for the duration of his total disability, and that he should not be deprived thereof, unless the terms of the policy clearly, distinctly and explicitly require it. He urges that the indemnity payments are not limited to a maximum of 13 consecutive weeks, and asks us to follow the rule laid down in the case of Terwilliger v. National Masonic Accident Ass’n, 197 Ill. 9, where, at p. 12, the court said:

“It is a familiar and universal rule that ‘where the words in a contract of insurance are so framed as to leave room for construction, the courts are inclined to lean against that construction which will impair the indemnity of the insured. If the clause in a policy is susceptible of two interpretations, that one will be adopted which is most favorable to the assured, in order to indemnify him for the loss which he has sustained. ’ ”

Defendant concedes that the law of Illinois is that an ambiguous insurance contract is to be construed most strongly against the insurer. It points out, however, that the rule applies only in cases where reasonably intelligent men will honestly differ as to its meaning. It quotes from Crosse v. Supreme Lodge Knights and Ladies of Honor, 254 Ill. 80, p. 86, as follows: “The rule that ambiguous language is to be construed most strongly against the insurer does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. ’ ’ Defendant paid plaintiff under the policy on. the basis of $10 a week for 13 weeks. The payments began after the first week of his disability. Plaintiff argues that he is entitled to the sum of $480 per year for each year of disability since May 29, 1934. He computes the amount by eliminating the first week, then claiming 13 consecutive weeks, eliminating the succeeding week, then again claiming 13 consecutive weeks, eliminating the succeeding week, and again claiming 13 consecutive weeks, eliminating the succeeding week and' then claiming 9 consecutive weeks. Thus plaintiff claims indemnity for 48 weeks in each year.

We have carefully considered the pertinent language of the certificate and the arguments of counsel. We agree with the views of the defendant as to the meaning of the contract. The language is not ambiguous. The policy under which the certificate is issued (and which contains, virtually the same language as the. certificate), shows that it is designed to furnish a source of income to employees suffering temporary total disability, and that it is not designed to furnish indemnification for permanent total disability. Compensation is to be paid at the rate of $10 a week. One week must elapse before indemnification payments commence. Recovery for any single disability is limited to 13 consecutive weeks. If an insured under 60 suffered several disabilities in a year, he could recover indemnification for 13 consecutive weeks as to each disability. Hence, an employee under 60 could recover more than $130 in any 12 consecutive months. However, the recovery of an insured over 60 would be limited to $130 in any 12 consecutive months. We are of the opinion that the certificate definitely limits the plaintiff to the recovery of indemnification for not more than 13 weeks for a single disability.

It appears that the plaintiff took out two additional certificates, which insured his life for the total amount of $1,500 and provided indemnification for permanent disability. It is stated that the plaintiff has been receiving $44 per month since the date of his disability under the additional policies. The purpose of exhibiting and commenting on the additional policies was to indicate that the plaintiff, in purchasing the insurance involved herein, did not expect to be paid permanent indemnification in the case of permanent total disability, having provided for such permanent indemnification under the other policies. We should not go outside of the language of the certificate which is the basis of the instant action, unless we conclude that such language is ambiguous. Having determined that the quoted language is unambiguous, we have not considered the extraneous matter.

We are of the opinion that the court was right in entering judgment for the defendant. Therefore, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hebbl, J., concurs.

Mr. Presiding Justice Denis E. Sullivan

specially concurring: I agree with conclusion but not all that is said.


text:
    Will H. Wade, Appellant, v. Dayton Keith et al., Appellees.
    Gen. No. 40,753.
    opinion filed December 13, 1939.
    C. A. Caplow, for appellant; Vincent G. Gallagher, of counsel; Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellees; Jesse H. Brown, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    Jack Woods, Appellee, v. Lawndale Enterprises, Inc. et al., Defendants. Appeal of Lawndale Enterprises, Inc., Appellant.
    Gen. No. 40,768.

      Opinion filed December 13, 1939.
    Louis B. Simon, of Chicago, for appellant.
    Prescott, Burroughs & Taylor, of Chicago, for appellee; Andrew J. O’Donnell, Patrick B. Prescott, Jr. and A. M. Burroughs, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On October 18, 1937, plaintiff filed his amended five count complaint against Dr. William Eubinson, Lawn-dale Enterprises, Inc., and Lawndale Theatre Corporation, Inc. Later, three additional counts were filed. All the counts, except the additional second count (which the parties call the £1 additional 7th count”) charge the defendants with negligence in allowing a globe, or shade, of an electric light fixture on the leased premises at 4025 West Roosevelt road, Chicago, to be in a state of disrepair. The additional count 7 charges that defendant, Lawndale Enterprises, Inc., the landlord, leased a store to the tenant, Dr. William Rubin-son with a globe or shade or fixture in the store entrance, in a defective condition, and known to be so by the landlord at the time of the letting. The defendants filed answers joining issue. The case was tried before the court and a jury. At the close of plaintiff’s evidence, and on the motion of plaintiff, the defendant, Lawndale Theatre Corporation, Inc., was dismissed from the cause. The jury returned a verdict finding the defendants guilty and assessing plaintiff’s damages at the sum of $2,600. The court entered judgment on the verdict. At the close of plaintiff’s evidence and again at the close of all the evidence, the defendant, Lawndale Enterprises, Inc., moved the court for a directed verdict in its favor, and after the verdict, the same defendant moved for a judgment notwithstanding the verdict, and in the alternative, for a new trial. These motions were overruled. The defendant, Lawn-dale Enterprises, Inc., prosecutes this appeal.

As a general rule of law, a landlord is not liable for injuries on premises leased to a tenant and under the tenant’s control. This rule applies not only to the enclosed portion of the premises, but also to any entrance, passageways, etc., so long as these appurtenances are not reserved nnder the landlord’s control in common for the use of the tenants of the entire building. There are well recognized exceptions to the general rule of the liability of the landlord, among which are (1) a latent defect existing at the date of the lease of the premises to the tenant, which defect was known to the landlord or could have been known by him in the exercise of reasonable care, and which defect could not have been discovered by a reasonable examination of the premises by the tenant; (2) a fraudulent concealment from the tenant by the landlord of a known, dangerous condition; (3) that the thing which did the harm amounted in law to a nuisance; or (4) a promise to repair the premises made by the landlord to the tenant at the time of the leasing. The law is well established that the liability of the landlord is no greater, insofar as the rights of the tenant’s employee is concerned, than the liability of the landlord to the tenant. On these propositions of law, the parties are not in disagreement. Defendant, the landlord, declares that the first five counts arid the first and third additional counts of the amended complaint, do not purport to base any liability under any one of the exceptions to the general rule as to the nonliability of a landlord. Plaintiff admits that the additional count 2 of the amended complaint bases the claimed liability of the landlord upon one of the exceptions. That additional count charges that at the time of the letting, the glass shade or globe was in an insecure condition, that the shade, or globe, was in a dangerous condition, and that defendant knew, or should have known, of such insecure and dangerous condition. Defendant contends that there is not a scintilla of evidence in the record which sustains, or tends to sustain, the allegations last mentioned. Defendant insists that the issue in the case was one of law and not of fact, and that it was the duty of the court to direct a verdict. Hence, it now asks that we enter a judgment notwithstanding the verdict, or in the alternative, reverse and remand the cause for a new trial. Plaintiff repels the contention by stating that he was in the employ of Dr. Rubinson, one of the defendants, and that he was also employed by the other defendant, the landlord, and that the landlord did not relinquish control and dominion over the entrariceway to the store of Dr. Rubinson, and that it was the duty of the landlord to keep the entranceway to the store in a proper state of repair.

The defendant, Lawndale Enterprises, Inc., owned a large three-story building running from 4015 to 4029 West Roosevelt road, Chicago, consisting of a theatre, several stores and mány apartments occupied by different tenants. The theatre was operated by the Lawn-dale Theatre Corporation, Inc. which on motion of plaintiff, was dismissed from the case. On November 27,1936, the defendant, Lawndale Enterprises, Inc., and Dr. William Rubinson executed a sealed lease under which the store known and described as the street floor at 4025 West Roosevelt road, was leased to Dr. Rubinson for a term commencing December 1, 1936, and expiring April 30, 1938. The fourth covenant of the lease reads as follows:

“Lessee has examined said premises prior to and as a condition precedent to his acceptance and the execution hereof, and is satisfied with the physical condition thereof, and his taking possession thereof shall be conclusive evidence of his receipt thereof in good order and repair, except as otherwise specified hereon, and agrees and admits that no representations as to the condition or repair thereof has been made by Lessor or his agent, which is not herein expressed, or endorsed herein; and likewise agrees and admits that no agreement or promise to decorate, alter, repair or improve said premises, either before or after the execution hereof, not contained herein, has been made by Lessor or his agent.”

The fifth covenant requires the lessee to keep the premises and appurtenances thereof in a clean, sightly and healthy condition and in good repair at his own expense; that he shall make all necessary repairs and renewals upon the premises and replace broken globes, glass and fixtures with material of the same size and quality as that broken. A rider attached to the lease also provided that the lessee “shall do all the painting, cleaning and decorating at his own expense.” The building is located on the south side of Roosevelt road; the east part is occupied by the Lawndale Theatre; west of that is a barber shop operated by Carl Merl; adjoining the barber shop on the west was a shoe-shining parlor operated by a man named Sam; west of the shoeshining parlor was Dr. Rubinson’s office, and adjoining his office on the west was a delicatessen store. Dr. Rubinson went into possession of his store on December 1,1936. He was an optometrist. The entrance to Dr. Rubinson’s store is described as being in the shape of an elongated square. The floor was of mosaic tile. There is a slope from the sidewalk level to the door of 5 inches, the entranceway being 45 inches from the sidewalk to the door. At the sidewalk the entrance is 5 feet wide and at the door it is 43 inches wide. The entrance to Dr. Rubinson’s store was in the center of his store. Above the door was a 3-inch moulding and above that was a transom the width of the door and 42 inches high. There were two display windows one on each side of the entrance. There was an electric light fixture flush with the ceiling in the center of the entranceway. The fixture extended down approximately 8 inches, and attached to it by three screws was a glass globe, which the witnesses also describe as a shade. The switch for the entranceway light was in Dr. Rubinson’s office, and any current used in the entranceway light would be charged to Dr. Rubinson as measured by his meter.

Plaintiff, 29 years of age, had been employed by Dr. Rubinson for about 4 months prior to May 11,1937, and worked for him as a porter and all around handy man three days a week. During these four months he also worked for the Lawndale Theatre and received $7 a week from the Lawndale Theatre Corporation. During the same period, he had other odd jobs in the neighborhood, but not in the same building. Plaintiff did not work for the theatre corporation during the day time. He went to work in the theatre between 6:30 and 7 :00 o’clock in the evening and worked about 3 hours. The janitor of the entire building owned and operated by the defendant, kept the halls clean, saw that the tenants got steam when the weather conditions so required, and that the garbage from the apartments was taken down. He was instructed not to give any kind of service to the stores, except to furnish hot and cold water and steam. It was not his duty to mop floors or vestibules or entrances, nor to take out garbage from the stores. Each of the stores had an entrance in the center thereof, and the entrance to Dr. Rubin-son’s store was the sole and only entrance to that store and did not connect with any other part of the building or the basement or any apartment or any hallway. The display windows of the tenants’ stores were on each side of the entranceway. Just previous to the execution of the lease between the landlord and the tenant, a maintenance man representing the landlord, examined the store premises and found them to be all right. He examined the globe in the fixture in the entranceway and found that there were no screws missing. The light was about 10% or 11 feet above the floor. By the lease the tenant agreed inter alia that he had examined the premises, that he was satisfied with the physical condition thereof, that he received the same in good repair, and that no representation as to condition or repair had been made by the landlord; that he covenanted to keep the premises and appurtenances thereof in good condition and repair, and that he would yield the same back to the landlord upon the termination of the lease in the same condition of cleanliness, repair and sightliness as at the date of the execution of the lease. He also agreed in the lease to make all necessary repairs and renewals and replace broken globes at his own expense. Plaintiff was employed by the tenant on a part time basis. He cleaned the floors of the store and kept the windows clean, and acted as porter three days of the week. Bach of these days, plaintiff spent three hours in and about the store of the tenant, remaining at the tenant’s store for about a half hour at a time. All of his services for the tenant were during the day time. He also did other odd jobs in the neighborhood. These other jobs were performed away from the building. Presumably, in acting as a porter, he came in and out of the various places where he was employed as the necessity arose, to keep such places in a clean and presentable condition. Plaintiff went to work at Dr. Rubins on’s store at about 10 a. m. on May 11, 1937. Dr. Rubinson told him to wash the outside windows, which he did. Then Dr. Rubinson told him to get the keys from the janitor, go down to the basement and obtain the screens and hang them in their proper places in the doorway and transom. The screens were the property of the landlord and were stored in the basement of the building. The screens had not previously been used by this tenant as he had moved into the premises during the cold weather. Plaintiff accordingly sought out the janitor and asked for the keys. Plaintiff testified that “I told him I wanted to get the screens out of the basement to put them up. He told me he was too busy, to get them myself and put them up.” Thereupon plaintiff went to the basement and procured the two screens and brought them to Dr. Rubinson’s store. He told Dr. Rubinson that he needed some screws in order to put up the screens, and his employer gave him money to purchase the screws, which he did. He then came back to the store and placed the screen door in its proper position. He then borrowed a small stepladder from the proprietor of the shoeshining parlor and placed the ladder so that the rear part was close to the door, between the electric light fixture and the door. He took the screen for the transom in both hands and climbed up the stepladder to the third step. Without any difficulty, he placed the screen in its proper position in the transom and secured it with cleats. He described the operation by saying that he “turned the buttons and made it secure.” He testified that: “I come down on the tile floor and I looks up to see if it was fastened up right. While I was looking up, at the same time a street car and a truck passed by going east. All of a sudden something hit me on the head. 1 got cut on the head and nose. Dr. Rubinson came out and said ‘What is the matter?’ I said ‘I don’t know, something hit me. ’ He said ‘ Well, go to a doctor, Dr. Karbelnig.’ I goes over there. He puts three stitches in my nose. I said, ‘Don’t make it too big, I want to go to work this noon.’ He said, ‘All right.’ So he put a little patch up there. So I goes to the mirror, looks up and finds I cannot see out of this eye. I went back and said, ‘What is the matter, Doctor, I can’t see out of it.’ He said, ‘Oh, I didn’t know that.’ So I went back to the office — so I went back to go to work, to Dr. Rubinson’s office, got inside and went to get my pail to go down on my knees, and he said, ‘Jack, that is all right. You don’t need to work. I will get somebody else to do it.’ I said, ‘Oh, I can do it.’ He said, ‘That is all right, you had better go home.’ So I went back home.” The next day Dr. Karbelnig washed his eye and bandaged' it again. He continued to receive treatments from Dr. Karbelnig all of that week. The condition of his eye did not improve, and on May 18,1937, he went to the County Hospital. Dr. Karl Scheribel, who examined him at the County Hospital, testified that plaintiff had considerable swelling and redness of the left eye; that there was a longitudinal cut of the eyeball, and that it was necessary to remove the eye, and that the eye was removed about a month after the patient entered the hospital. ‘ The loss of the eye was due to the fact that the glass globe attached to the electric light fixture in the entranceway fell and injured him.

Carl Merl, the proprietor of the barber shop which was the second door east of Dr. Rubinson’s store, was called as a witness for plaintiff, and testified that he had been in the building for nine and one half years, and in his present location for seven years. Prior to the time he testified, he occupied the store at 4025 West Roosevelt road, which was occupied by Dr. Rubinson at the time plaintiff was injured. He stated that he had his own porter, and that he put up his own screens; that the janitor of the building “never puts them up for me or for any other storekeeper in the building. The only service anyone gets out of the building is hot and cold water and steam heat. The janitor never cleaned any entrances to any store in the building.” Mr. Merl further testified that when he occupied the store seven years previously, he took the electric bulb out.

Plaintiff filed a claim with the industrial commission under the provisions of the Workmen’s Compensation Act, and named as respondents, Dr. Rubinson, Herman Nelson, Charles Nelson, Lawndale Theatre Corporation and Edward P. McGuire. It appears that Herman Nelson was the manager of the theatre, and at the time of the occurrence, was also manager of the building. Charles Nelson is his brother and was general manager and secretary of Lawndale Enterprises, Inc., the defendant herein. On September 3,1937, an arbitrator for the industrial commission rendered a decision “that the petitioner and respondents were not on May 11th, 1937, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, said petitioner sustained accidental injuries which did not arise out of but in the course of employment. . . . That necessary first aid, medical, surgical and hospital services have partially been provided by Dr. William Rubinson, one of the respondents herein; that petitioner is not entitled to have and receive from said respondents any compensation for the reason that the injuries sustained did not arise out of the petitioner’s employment and that the petitioner did not, at the time of the accidental injury, come under the provision of the Workmen’s Compensation Act.” Plaintiff, although entitled to petition the commission to review the decision of the arbitrator, did not do so, nor did he ask that a statutory writ of certiorari issue out of the circuit or superior court to review the decision. It will be observed that the plaintiff did not make Lawndale Enterprises, Inc., the landlord, a respondent before the industrial commission.

In passing on the issues, we do so in full appreciation of the rule that a motion to direct a verdict is in the nature of a demurrer to the evidence; that the evidence so demurred to in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff; that the evidence is not weighed, and that all contradictory evidence and explanatory circumstances must be rejected. The question presented by the motion is whether there is any evidence fairly tending to prove the plaintiff’s complaint. If the evidence at the close of plaintiff’s case does not justify an instruction for a verdict in favor of defendant, no evidence which defendant may introduce will justify such instruction, except the uncontradicted evidence of facts consistent with every fact which the evidence of the plaintiff tends to prove, but showing affirmatively a complete defense. (Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387; Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14; Shannon v. Nightingale, 321 Ill. 168.)

Plaintiff contends that in addition to being employed by Dr. Rubinson, he was also employed by the landlord “to do porter work, keep the aisles clean and sweep the sidewalks.” The parties are in agreement that he was employed by Lawndale Theatre Corp., Inc. However, that employment was during the evening. His employment during the day in and around the premises was in the store of Dr. Rubinson. He performed other odd jobs in the neighborhood during the day time, but away from the building. Plaintiff argues that when he went to procure the screens, the janitor of the building told him he was too busy, and that plaintiff should get them and put them up. We have carefully read the testimony. It clearly shows that what the janitor said was that he was too busy to accompany plaintiff in procuring the screens. The janitor did give plaintiff the keys and told him to get the screens himself and put them up. Manifestly, the janitor did not indicate that it was his (the janitor’s) duty to put up the screens. The undisputed evidence is that the screens of all the tenants of the stores were put up by themselves, or by someone hired by them. It is also clear that plaintiff, in procuring the screens and in putting them in place, was acting only in his capacity as an employee of Dr. Eubinson. An indication that plaintiff did not consider Lawndale Enterprises, Inc., as his employer, is shown by the fact that he did not include that corporation as a respondent in his claim filed with the industrial commission. Plaintiff insists that the entranceway was under the dominion and control of the landlord, and was held out by it to the public use; that hence the injury to any person arising out of the failure to keep it or any appurtenance of it in a proper state of repair, imposes liability upon the landlord. A careful consideration of all the evidence, including a good photograph of the entranceway, convinces us that the entranceway was a part of the premises that were leased to Dr. Eubinson. The leased premises are described as “4025 West Eoosevelt Eoad.” Leased premises are not always inclosed. It is a matter of common knowledge that for the purpose of display, buildings are frequently so constructed as to allow prospective customers to walk into the entranceway in order to observe the merchandise on display. The purpose manifestly is to attract customers. The person viewing the display may or may not become a purchaser. It is also common knowledge that people go into a retail store and come ont without making a purchase. However, that fact would have no bearing on the question of liability in case of injury to a shopper, as between the landlord and the tenant. Beal estate is also rented where the premises are only partly enclosed, as for instance open air markets and gasoline filling stations. Yet, the fact that the public may freely go on such premises for the purpose of inspecting the merchandise with the object of purchasing, would not affect the liability of the landlord in case of injury on the premises, unless the party injured could come within one of the exceptions to the general rule. The entranceway was not reserved under the landlord’s control. Concededly, it was not used as a common passageway for the use of the other tenants of the building. The tenant expressly covenanted to keep the premises and the appurtenances in good repair.

Plaintiff cites the case of Tomle v. Hampton, 129 Ill. 379. That case comes within one of the exceptions to the general rule, namely, that where the premises are let with a nuisance upon them, by means, of which the injury complained of is received, the landlord is liable. In that case, the opening through which the plaintiff fell, existed without any guard or protection before the lease was made to the tenants. The court held that the opening, under the circumstances disclosed, constituted the maintenance of a nuisance. The court said, p. 384:

“It is admitted that the appellant made the opening below the show window as it was when the appellee was hurt. He was therefore, the author of the nuisance, and, being such author, when he leased to others, he was guilty in law of continuing the nuisance. He rented the premises with the original wrong attached to them. The lease affirmed the continuance of the wrong. He received rent as a consideration of the continuance, and should, answer for the damage it occasioned.” The rule there announced is not applicable to the factual situation in the case at bar. We are of the opinion that the instant case comes within the doctrine announced in West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210. In that case, on November 12, 1895, plaintiff stepped or fell into a coalhole in the sidewalk in front of the premises known as 200 West Randolph street (under the old numbering system). Defendant therein was the owner of a four-story and basement building. The coalhole in the sidewalk into which the plaintiff fell, opened into a vault under the walk which was connected with and constituted an appurtenance to the basement of No. 200 of the building. The basement and appurtenance thereto was then in possession of one Henry Wilker, a tenant of defendant. Wilker had operated the basement proper as a saloon, and used the vault under the sidewalk for toilets and to receive and store coal. There was evidence tending to show that neither the defendant nor any of its tenants in the building, other than Wilker, had access to the vault containing the toilets and coal bin, but that Wilker had entire control théreof, the only entrance thereto being from the saloon occupied by him, and that the building was not appurtenant to any other part of the building. The jury returned a verdict in favor of plaintiff, on which judgment was entered. In reversing the judgment, the Supreme Court said, p. 217: “There was no evidence tending to show the injury was occasioned by reason of any defect or fault in the original construction of the vault, the coal-hole or the cover to the hole. The negligence on which the right to recover rested was, that the cover of the coal-hole had become insufficient and defective through a failure to keep it in repair. There was evidence tending to show the vault and coal-hole were appurtenant to the basement, only, of the building, and that the basement, including the vault and the coal-hole, was, and for some years prior thereto had been, in the exclusive possession of a tenant of the appellant company, who held the same under a lease, wherein he had covenanted that he had received the premises ‘in good order and condition’ and would keep the same in ‘good repair during the period of the lease. ’ The tendency of this testimony was to establish that the negligence (if any) which caused the injury to appellee was not that of the appellant company. The general rule is, that the occupant of premises is responsible for injuries inflicted upon another by reason of the neglect or failure to keep the premises in repair. (City of Chicago v. O’Brennan, 65 Ill. 160; Gridley v. City of Bloomington, supra; City of Boston v. Gray, 10 N. E. Rep. 509.) This court has recognized exceptions to this general rule, as follows: The owner of leased premises may be made liable for such injuries (a) if the covenants of the lease require that he shall keep the premises in repair; (b) if the dangerous or defective condition by which the injury was occasioned existed when the premises were leased; (c) if that which occasioned the injury was a nuisance and was upon the premises when the lease was executed. (Gridley v. City of Bloomington, supra; City of Chicago v. O’Brennan, supra; City of Peoria v. Simpson, 110 Ill. 294.) In the case at bar the coal-hole was placed in the sidewalk and the vault underneath it constructed with the consent of the city authorities. There is no proof or claim the work of construction was improperly or unskillfully done, or of other grounds upon which to base an insistence the premises were let with a nuisance upon them, or that the coal-hole, or the cover thereto, was in a dangerous or defective condition when the appellant company parted with the possession and control thereof. The tenant expressly covenanted he would keep the same in good repair, and was in full and exclusive possession of the basement and of the vault under the sidewalk, and, so far as the appellant company is concerned, of the ‘hole’ in the sidewalk leading to the vault. Hence the liability of the appellant company cannot be predicated upon any of the exceptions to the general rule which this court has heretofore recognized.

“It is contended, however, that another exception should be declared in cases such as this, where the owner of a building is granted the privilege of excavating a vault under the sidewalk of a public street and opening a coal-hole in such sidewalk for the benefit of his premises; that in such instance the owner of the premises assumes, by implication, the duty of keeping the sidewalk where he has opened it in as good condition and as safe for the public use as if the opening had not been made; that such duty is imposed by law for the public safety; and while it is conceded this duty runs with the land, and the alienation of the entire premises, either permanently, by deed, or temporarily, as by a lease, would transfer the duty to the grantee or tenant, still it is urged the conveyance of an undivided interest, or demise of a part, only, of the premises, should not be held to relieve the owner of the duty he owes to the public, and to cast the same upon the tenant of a part, only, of the premises, though the opening in the sidewalk has no relation to any other portion of the building other than that in possession of the tenant. Public safety and sound public policy, it is urged, de-‘ mand that nothing less than the alienation or parting with the possession of the entire premises should operate to relieve the owner of such premises from the duty which was originally imposed upon and impliedly accepted by him. The view seems to have obtained the sanction of the court of appeals of the State of New York in the case of Trustees v. Foster, 156 N. Y. 354; 50 N. E. Rep. 971. We do not regard the case of Irvin v. Fowler, 5 Robertson, 482, as also authority for the view. In that case, Fowler, the landlord, and his tenant, were held liable to a stranger for injuries received by falling through a coal-hole in the sidewalk. Fowler, the owner and landlord, was not in possession, but the coal-hole had been constructed without the consent of the city and constituted a nuisance, and Fowler let the premises with the nuisance upon them. His case fell within one of the exceptions to the general rule hereinbefore mentioned as recognized in this jurisdiction.” We agree with the statement of plaintiff that one good count in a complaint is sufficient to sustain the verdict.

Another point made by plaintiff is that in considering whether the landlord is liable, we should remember that plaintiff was putting up screens which belonged to the landlord. It is conceded that the screens belonged to the landlord. For that matter, the entire building belonged to the landlord. The fact that the screens belonged to the landlord, while deserving of consideration in connection with the other facts and circumstances in the case, does not establish that in placing the screens the plaintiff was acting as the agent of the landlord. The evidence clearly shows that he was not, but that he was acting for Dr. Rubinson. Counsel for plaintiff also calls our attention to the testimony of Dr. Rubinson that at the time of the accident there were only two screws in the fixture instead of three. The undisputed evidence is that at the time the lease was entered into and just before the tenant moved in, everything, including the electric light fixture of which the globe was a part, was “all right.” Plaintiff also invites attention to certain portions of the rules and regulations which are a part of the lease. One of the rules provides that the lessee shall not place any advertising signs upon the roof, exterior walls, windows or any other part of the premises, except with the written consent of the lessor, and that all advertising rights are reserved by the lessor. If and when, under that provision, the lessee obtained permission to place signs in the windows or other parts of the premises, such signs and premises would nevertheless still be under the control of the lessee. In our opinion, the provision of the rule does not affect the liability of the landlord. The purpose of requiring the landlord’s permission, undoubtedly, is to prevent tenants from putting’ objectionable or offensive signs in windows-or other parts of the premises, which signs might affect the reputation of the building and thereby reduce the value thereof. A further point mentioned by plaintiff is that the tenant did not use the light in the entranceway. Apparently, there was sufficient light from the windows. The tenant was not required to use the light. He controlled the switch and the light was for his benefit to use or not, as he wished. The fact that he did not, could not affect the liability of the landlord.

From a thorough consideration of the record, we are satisfied that it was the duty of the court to direct a verdict for the defendant. Therefore, the judgment of the superior court of Cook county is reversed and a judgment notwithstanding the verdict for the defendant, Lawndale Enterprises, Inc., and against plaintiff for costs is entered.

Judgment reversed and judgment notwithstanding the verdict entered here for defendant, Lawndale Enterprises, Inc., and against plaintiff for costs.

Denis E. Sullivan, P. J., and Hebel J., concur.


text:
    Booth Kelly Lumber Company, Appellant, v. John Ruel and Caroline Ruel Lawrence, Formerly Trading as Ruel Lumber Company, Appellees. W. C. Vossmeyer, Trading as Western Sales Agency, Appellant, v. John G. Ruel and Caroline M. Ruel, Appellees.
    Gen. No. 40,777.

      opinion filed December 13, 1939.
    Walter S. Vose and Irving B. Campbell, for appellants; Oscar E. Carlstrom and Frederick W. Turner, Jr., for appellee Caroline Ruel Lawrence.
   Opinion by

Justice Burke.

“Not to be published in. full.”