author: Mr. Presiding Justice McSurely Mr. Justice O’Connor,

text:
    First National Bank and Trust Company of Evanston, Executor Under the Last Will and Testament and Codicil of Louise N. Rood, Deceased, Appellant, v. Nicholas P. Simon, Appellee.
    Gen. No. 41,776.
    Heard in the first division of this court for the first district at the April term, 1941.
    Opinion filed December 22, 1941.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellant.
    W. Scott Hodges and Harvey L. Cavender, both of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an adverse judgment entered in an action brought by it to recover from defendant $4,100 for rent.

The claim for rent was based upon a lease dated January 10, 1932, by Louise N. Rood, lessor, since deceased, and the defendant, wherein the defendant agreed to pay $4,100 for the 10 year term of the lease. July 21, 1932, Louise N. Rood entered into a trust agreement with the City National Bank and Trust Co. of Evanston wherein the settlor conveyed to the bank as trustee certain properties, with directions for their management and disposition of the income. This was subsequently amended by making the First National Bank and Trust Co. of Evanston successor trustee.

January 12, 1937, Louise N. Rood died, and the First National Bank and Trust Co. of Evanston was appointed executor under her will. Both the trustee and the executor brought this suit upon the lease from Louise Rood to defendant, alleging that the rental of $4,100, which fell due at the date of the execution of the lease, January 10, 1932, had not been paid. Defendant answered, alleging that the rent had been paid by him to Louise N. Rood on the due date, in cash.

Subsequently, on motion of plaintiffs, the trustee was dismissed and the case proceeded, with the executor as the sole plaintiff. The record shows that this was done for the purpose of raising the bar of the statute against the defendant testifying in the action brought by the executor.

Upon the hearing before the court plaintiff introduced the lease and a copy of the letters testamentary appointing the executor, and rested its case. Objections were made and sustained to the attempt of the defendant to testify. Defendant thereupon introduced as his sole defense the trust agreement made July 21, 1932, and argued that under this agreement the trustee, only, had power to bring this action, and the executor had no such authority. To this plaintiff replies that the trust agreement did not assign the past due rent under the lease.

6 Corpus Juris Secundum (page 1089) is quoted, to the effect that to constitute a valid assignment there must be a perfected transaction between the parties wherein the intent to invest the assignee with the present right in the thing assigned is manifest, and that this must" be to the extent of depriving the assignor of control over the subject of the assignment. The trial court construed this trust agreement as assigning the past due rent to the trustee and held that the executor had no authority to bring this action.

The trust agreement is quite lengthy. It recites that “Whebeas, The Settlor has transferred, conveyed and assigned to the Trustee, for and upon the trusts and conditions hereinafter specified, the following described property, to-wit:” Then follow descriptions of parcels of real estate, and parcel No. 4 is the real estate conveyed by the lease from Rood to the defendant. The fifth paragraph provides: ‘ ‘ The Trustee, and its successor -or successors in trust, shall have full power ^and authority to receive, take, collect, receipt for, hold, manage and care for all the trust estate; to collect and receive the income, profits and issues thereof; to compromise, adjust and settle all claims for or against such property, at such amounts and upon such terms of payment as it deems best; to invest and reinvest such trust estate in such bonds, stocks, real estate mortgages, securities and other income producing property, real, personal or mixed, as said Trustee, in its absolute discretion, shall deem expedient. . . .” There are other provisions authorizing the trustee, in its sole discretion, to convert real estate into personalty and personalty into real estate, to erect improvements or sell and convey by deeds and to warrant title, or to lease or otherwise dispose of the real estate. The document is quite detailed as to the powers of the trustee.

We are of the opinion it gives unlimited power and authority to the trustee, the same as the owner had before the trust agreement was made. The fifth paragraph, above quoted, specifically gives power to the trustee “to compromise, adjust and settle all claims for or against such property, at such amounts and upon such terms of payment as it deems best.” Under this provision the trustee had power to make claim against the defendant for any rent due and not paid under the lease, and to compromise the same as it deemed best.

There is merit in the point made in defendant’s brief that while the lease sued on was executed January 10, 1932 (and this provided that the rental of $4,100 for the term should be paid on that date), the lessor Louise Rood died some five years thereafter, and the record fails to show that any action was taken on her behalf during this time to collect the rent. There is a strong presumption that defendant would not have been permitted to remain in possession of the premises for five years without any attempt by the lessor to collect the rent.

Plaintiff suggests that its complaint might have been amended by substituting another plaintiff. There was considerable colloquy between the trial court and counsel as to this point, but no motion to amend was made.

The judgment of the trial court is proper and it is affirmed.

Affirmed.

Matchett, J., concurs.

Mr. Justice O’Connor,

specially concurring: I agree the judgment should be affirmed for the reason stated in the opinion, but I go further and say that plaintiff alleged the making of the lease, etc., and further “that the defendant has not paid the rent of $4,100 which became due on January 10, 1932, nor any part thereof” etc. But plaintiff made no attempt to prove non payment and therefore made no case by merely introducing the lease in evidence. In these circumstances the judgment must be affirmed. Cochran v. Reich, 91 Hun. (N. Y.) 440.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    People of the State of Illinois ex rel. Margaret Butwill, Defendant in Error, v. Charles Butwill, Plaintiff in Error.
    Gen. No. 41,756.
    Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed December 22, 1941.
    Joseph J. Grish, of Chicago, for plaintiff in error; Clyde C. Fisher, of Chicago, of counsel.
    No appearance for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment entered March 19, 1941, finding him guilty of contempt of court and sentencing him to the county jail for one year. There has been no appearance in this court in support of the judgment.

The entire record, as is usual in cases of direct contempt, consists of the judgment order. It appears from it that on December 10, 1940, while the circuit court was in open session, there came on for trial before Judge Finnegah the case of Butwill v. Butwill, which was an action for divorce with counterclaim; that Charles Butwill and Walter Grlista gave testimony in support of the counterclaim; and that relying upon the truth of their testimony the court entered a finding dismissing the causes for want of equity. On March 19, Charles Butwill and Walter dista gave testimony in the cause, and Walter Grlista testified that the testimony theretofore given by him on the 10th day of December 1940, was false; that it was given by him at the special request of Charles Butwill and that Charles Butwill and Walter dista knowingly conspired with each other to testify and did so falsely testify and mislead the court on “matters vitally material to the issues”; further, that the conduct impeded the proceedings and lessened the dignity of the court and tended to obstruct justice; that all these matters were within the personal knowledge of the court, and that Charles Butwill was present in court and represented by counsel, and that he be taken from the bar of the court to the common jail, etc.

An order committing a witness to jail for direct contempt in giving false testimony must set forth the facts so fully and certainly as to show the crime was actually committed. The language of the order must be strictly interpreted and no presumptions can be indulged in its favor. People v. Salbar, 282 Ill. App. 506. Such a case will be considered in this court on the order alone. People v. LaScola, 282 Ill. App. 328, 329. Here, defendant was convicted on the testimony of Glista alone. The order does not show what the supposed false statement was. It does not show how the testimony of Butwill was false, and its language is that of bald conclusions instead of statements of fact.

Indeed, the alleged contempt does not appear to he a direct contempt at all since there is nothing in the record which discloses the court knew, or could have known, personally that the testimony was false. On the contrary the order shows that this, if true, was disclosed by testimony heard in open court. People v. Stone, 181 Ill. App. 475, 477; People v. LaScola, 282 Ill. App. 328, 331; People v. McKinlay, 367 Ill. 504, 506. The judgment will be reversed.

Reversed.

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


text:
    People of the State of Illinois, Defendant in Error, v. Herbert Schultz, Plaintiff in Error.
    Gen. No. 41,787.
    Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed December 22, 1941.
    Rehearing denied January 5, 1942.
    Julius Reznik, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Schultz, found guilty of a direct contempt of court and sentenced to 90 days in jail, has sued out this writ of error. It appears from the record Walter Appelt was on trial before Judge Graber, sitting in the criminal court,-charged with an offense. Schultz was called as a witness for the People. It appeared he had signed a written statement March 12, 1941, to the effect that March 11, 1941, at about 3 o’clock in the morning Walter Appelt came to the home of Schultz in Stewartson, Illinois, and informed him he had just shot the man who was breaking up his home; that Appelt wanted Schultz to take care of his (Appelt’s) automobile; that Schultz drove Appelt in his own automobile to Effingham for some coffee, then to the home of the parents of Schultz for breakfast, and then to a lawyer’s office in Shelbyville. Schultz and Appelt were together until about noon of the same day, when Appelt, at the lawyer’s suggestion, boarded a train in Decatur, for Chicago, and Schultz drove back to Stewartson.

The order of commitment contains a complete transcript of the proceedings had before the court in so far as the same affected Schultz. It appears Schultz was reluctant to testify but under direction of the court said he was 28 years of age, an automobile mechanic by trade, resided at Stewartson, Illinois, with his wife and child; was a cousin of defendant Appelt; the signature to the written statement was his own, the statement was made freely and voluntarily by him March 19, 1941. In response to other questions he refused to testify when he had last seen Appelt, whether he (the witness) was in the city of Chicago March 10, whether he was in his home at Stewartson, Illinois, March 11 at 3 a.m., or whether he was in the city of Chicago March 28, 1941. In reply to a question as to whether he had ever seen People’s exhibit 2, he replied in the affirmative; also that he had signed it. Asked if the statement was the truth at the time he made it, he refused to testify and also refused to say whether it was made on the date upon it, which was March 12, 1941. As reasons in each case for his refusal to testify he stated, in substance, that he stood upon his constitutional rights that he might not be compelled to incriminate himself by his testimony.

All this occurred, apparently at the morning session of the court, and he was directed to return at 2 o’clock and not to talk to anyone or allow anyone to talk to him in the meantime. He returned at 2 o’clock, when the court informed him he had gone over the statement very thoroughly and while a wide latitude would be allowed in the event there was any doubt as to whether an answer might incriminate him, the court was of the opinion there was nothing in the statement that would incriminate the witness in any way. He was also informed that it had been held that a person could not hide behind the constitutional provision in question merely to protect somebody else, and that the court was therefore ruling that he should answer any questions pertaining to any matters contained in the statement, and that in the event he would not answer the court would take summary action. The witness was asked if he understood, and said he did.

The witness was then interrogated as to his name, where he lived and whether he knew Walter Appelt, to which he replied he did. The witness was then asked how long he had known him, and the witness said he refused to testify. The court told him he would have to answer the question, and then he replied, all of his life. He was asked, “When was the last time you saw him?” The witness replied, “I refuse to testify.” The court told bim he would have to answer the question. The witness answered, “It was — I could not tell you the date I seen him. ’ ’ The recollection of the witness being refreshed, he said he saw Appelt early on the morning of March 11, 1941, at his own home in Stewartson, Illinois, and at about the hour of 3 o ’clock in the morning. “Q. ‘Did you have a conversation with him at that time?’ The Witness: ‘I refuse to testify.’ The Court: ‘You will have to answer that question.’ A. ‘I did.’ Mr. Moynihan: Q. ‘What was the conversation that you had with defendant, Walter Appelt, at that time?’ The Witness: ‘I refuse to testify.’ The Court: ‘You will have to answer that question. I will remand you to the County Jail until such time as you will answer his questions. Do you understand what I said?’ The Witness: ‘I refuse.’ The Court: ‘All right. The witness stands committed to the County Jail. It will in no wise incriminate you, does not tend to incriminate you in any way, shape or form, in the statement that you made.’ ” This question was then asked the witness, “And at that time did you say to him, referring to the defendant, Walter Appelt, ‘Did you kill him?’ The Witness: ‘I refuse to testify.’ Mr. Moynihan: ‘In answer to that question did he say to you, “I don’t know whether I killed him or not, but I shot him four or five times?” ’ The Witness: ‘I refuse to testify.’ Q. ‘And your position is now that no matter what question I ask you in regard to that your answer will he the same, you refuse to testify?’ A. ‘That’s right.’ Q. ‘In spite of the fact that the court has warned you that you must answer.’ The Witness: ‘That is right.’ The Court: ‘All right. The bailiff will take this man into custody and he will be committed to the County Jail for ninety days. You may draw the order.’ ”

The court thereupon found the defendant, who was present in open court, was by reason of his conduct guilty of a direct contempt of the court and made the order of commitment heretofore recited.

The provision that no person shall be compelled in any criminal case to give evidence against himself is a constitutional right under the Constitution of Illinois and of the United States. (Constitution of Illinois, 1870, Art. 2, sec. 10; Constitution of the United States, V. Amendment.) The question has often been before the courts as to the circumstances under which any person called as a witness has a right to avail himself of these constitutional provisions. Manifestly it cannot be left entirely to the judgment and discretion of the person called as a witness, for such an interpretation of the rule would be quite inconsistent with the public interests and would make proceedings in the courts farcical at the election of any person who might give this reason, however fanciful, for his refusal to testify. Trial judges should always be careful to see that the constitutional right is not infringed, but it has been held in practically all the cases that it is for the person claiming the privilege in the first instance to show he has reasonable ground to believe that his answers, if given, might tend to incriminate him. This fact, in the first instance, is for the court to determine from all the facts and circumstances appearing in the case.

The rule was well stated by Chief Justice Cockburn in Regina v. Boyes, 1 B. & S. 311, quoted with approval by the Supreme Court of Illinois, in People v. Boyle, 312 Ill. 586, at 596, as follows: “The court must see from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer.”

We have carefully read the entire record and entertain no doubt that the sole and only purpose which led this witness to defy the court and refuse to answer the questions, was his own desire to protect his cousin from prosecution. The constitutional provisions above stated cannot thus be used to pervert justice.

The judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. Justice Matchett Mr. Presiding Justice McSurely,

text:
    L. E. Almon et al., Appellees, v. American Carloading Corporation et al., Appeal of Daniel D. Carmell et al., Appellants.
    Gen. No. 41,887.
    McSurely, P. J., dissenting.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed December 22, 1941.
    Walter F. Dodd, of Chicago, for appellants.
    William B. Esterman and Helen W. Munsert, both of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

Appellants are Daniel D. Carmell, attorney for John T. O’Brien, and other officers of Chicago Local Union No. 710 of the International Brotherhood of Teamsters. Defendants seek to reverse an order whereby Carmell was disqualified from acting as counsel for them. The order was entered pursuant to a written motion of six paragraphs. Respondents moved to strike the motion. The matter was heard on this motion to strike and evidence submitted. The motion to strike was denied, the order of disqualification entered; this appeal followed. A motion to dismiss the appeal has been heretofore denied.

The facts (not in dispute) are that Carmell is retained as attorney for Joint Council No. 25 of the International Brotherhood of Teamsters, etc., affiliated with the American Federation of Labor. He is also retained as local attorney for the American Federation of Labor on a regular retainer basis. His retainer is paid from the general fund of either or both organizations. A majority of plaintiffs are members in good standing of Chicago Local Union No. 710 affiliated with Joint Council No. 25. Plaintiffs, members of the local union, pay dues to it. The union in turn contributes 5 cents per member per month into the treasury of the joint council and 30 cents per member per month into the treasury of the International Brotherhood of Teamsters. All plaintiffs are members in good standing of local unions affiliated with the International Brotherhood and the American Federation. They contributed to the treasury of each.

The written motion asserts (such being the facts) plaintiffs are paying a portion of any retainer paid by either the Joint Council No. 25 or the American Federation of Labor to Attorney Carmell; that Carmell therefore must be considered as representing the interests of all the members of any local union affiliated with Joint Council No. 25 or with the American Federation of Labor. They say he is therefore disqualified from appearing on behalf of a part of the members of these organizations in any proceeding involving a dispute with other members, and that the same disqualification would apply to any other attorney or firm of attorneys. acting with Mr. Carmell as co-connsel or additional counsel for defendant union officials, if such attorney or firm of attorneys occupies a similar position by sharing directly or indirectly in Mr. Carmell’s retainer, or by representing the interests of the union in general.

The trial court held it had inherent power to deny any attorney in any cause the right to appear for a litigant if there was a dual representation causing a conflict in positions.

The rule of law in a situation of this kind is simple enough. Neither an attorney nor any other agent can serve two masters. An attorney may not represent conflicting interests. While the rule is simple, its application to particular situations is sometimes difficult. The relation of attorney and client is held sacred in the eye of the law. Not alone while the relationship exists but after it is ended, an attorney may not use knowledge obtained through the relationship of attorney and client to the injury of the/former client. A court will not permit a lawyer to disregard his obligation to be loyal to the confidence reposed in him by clients. People v. Gerold, 265 Ill. 448; Strong v. International Building, Loan & Investment Union, 183 Ill. 97.

The pleadings here disclose that the controversy between the parties came about in this way. The defendant American Carloading Corporation is a Michigan corporation qualified to do business in Illinois and engaged in transporting freight by motor vehicle for hire. Plaintiffs are employed by the company in this business. About December 22, 1940, a dispute arose between the company (plaintiffs and other employees), as to claims for back pay. These claims were finally settled by an agreement between the company and representatives of Chicago Local Union No. 710. The agreement was concurred in by the United States conciliator. An audit of defendant’s books made by union officials showed approximately $17,000 back pay shortages. The corporation deposited $10,000 in escrow. The men who were on strike returned to work. Paragraph 7 of the agreement required defendant corporation to deliver checks payable to plaintiffs to Chicago Local Union No. 710. Plaintiffs state they are informed and believe that on March 10, 1941, about 160 checks totalling approximately $20,000 were delivered to the union officials. While admitting they are without accurate knowledge, plaintiffs say that if the checks were so delivered, defendant company conspired with the union officials to defeat the purpose of the agreement and delay delivery of the checks by the union officials in order that the same might be returned to the maker corporation at the expiration of 90 days from the respective dates of the checks. A special meeting of all members of Chicago Local Union No. 710 was called for March 16, 1941. It was attended by the union officials and 45 plaintiffs. At this meeting it is said defendants O’Brien and others informed plaintiffs checks for back wages had been received from the Carloading Corporation pursuant to paragraph 7 of the agreement, but that the same would not be delivered to plaintiffs unless and until plaintiffs consented to a deduction of 25 per cent of the amount of the checks. This, it is said, is directly contrary to paragraph 7 of the agreement. Plaintiffs demanded the checks; the union officials refused to deliver them. It is also said defendants told plaintiffs it would be well for them to consent to the deduction; if they refused so to do they would lose their employment or be expelled from the local union or both; if they had regard for themselves and families it were better to consent. Plaintiffs say that the intimidation was to such an extent plaintiffs fear physical violence. The defendant officers of Local No. 710 set up in defense that they have a right to deduct the 25 per cent to be paid into the treasury of the union, in part to meet the expenses of settlement and in part as a fine against plaintiff members of Local No. 710 for violating the terms of the contract between Local Union No. 710 and the American Carloading Corporation. The president of the joint council instructed Carmell to defend the officers of the local union in these controversies.

The pleadings here disclose that the only defense interposed to this suit is one made by direction of the joint council in behalf of the local union. While defendants are sued personally the defense interposed by them is one which will have the effect of adjudicating the claims of the union. Notwithstanding earlier decisions to the contrary the later and better authorities are to the effect that associations such as the Joint Council No. 25 and Local Union No. 710 have “juristic personalities.” (United Mine Workers v. Coronado Coal Co., 259 U. S. 344, annotated in 27 A. L. R. 762; Franklin Union No. 4 v. People, 220 Ill. 355, 370-372.) The personality of such an association is invisible. It is, however, given bodily appearance by the officials and others who act in its name. The same thing is true of a corporation. Through the officials the invisible becomes visible, and thereby associations such as these come to have local habitation and a name. Carmell has never sustained the relationship of attorney for these individual plaintiffs. They have not placed confidence in him in that relationship. On the contrary, plaintiffs have voluntarily assented to create new legal entities which, from the standpoint of the law, are distinct from these plaintiffs themselves as any person other than themselves could be. The relationship of attorney and client does not now and never has existed between Carmell and any one of these plaintiffs. The fact that indirectly by contribution plaintiffs have assisted in providing the funds by which the union and the joint council retain Mr. Carmell does not create the relationship of attorney and client nor the obligations arising out of that relationship in so far as these plaintiffs are concerned.

It follows it was error to disqualify Mr. Carmell, and the order will therefore be reversed.

Reversed.

O’Connor, J., concurs.

Mr. Presiding Justice McSurely,

dissenting: In my opinion Daniel D. Carmell, not being a party to the proceedings before Judge Dunne, and, it not appearing that he would be injured or benefited by the final judgment rendered in the cause, as he has no interest in the suit, is not entitled to appeal from the order disqualifying him from acting as counsel in the trial of the cause. People ex rel. Yohnka v. Kennedy, 367 Ill. 256.


author: Mr. Justice O’Connor

text:
    Howard S. Palmer et al., Trustees of New York, New Haven and Hartford Railroad Company, Appellants, v. Lorenzo Gillarde et al., Appellees.
    Gen. No. 41,752.

      Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed December 22, 1941.
    Rehearing denied January 5, 1942.
    Hay, Morton & Freytag, of Chicago, for appellants; Herman T. Van Mell, of Chicago, of counsel.
    Blanksten & Lansing, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

July 20, 1935, the New York, New Haven & Hartford Railroad Company, a corporation, brought an action against defendants to recover $496.58, the charges for transporting a carload of lettuce from Watsonville, California to Boston, Massachusetts. When the car reached Boston the purchaser refused to accept the lettuce and it was afterward sold by the railroad company for $60.32. The railroad gave credit for this amount leaving $436.26. Interest was claimed on this sum from the date the lettuce was shipped, July 6, 1932. Defendants filed an affidavit of defense and recoupment denying liability and claiming $554.72 as the loss sustained by them on account of the claimed negligence of plaintiff in transporting the car of lettuce. July 21, 1936, a year after the suit was brought, by stipulation of the parties, all pleadings were stricken and leave given plaintiff to file an amended statement of claim. Thereafter numerous other pleadings were filed by both parties. Defendants interposed a number of defenses and again alleged plaintiffs were indebted to defendants for $554.72 the loss claimed to have resulted from plaintiffs’ negligence. October 9, 1940, the case went to trial and at that time leave was given defendants to increase the amount of their counterclaim to $1,000, and the three trustees of the plaintiff railroad company were substituted as plaintiffs. The counterclaim was tried by a jury of 6 and a verdict returned for $700. Plaintiffs’ claim was then tried before the court without a jury. The court found in favor of plaintiffs for the amount of their claim, vis., $436.26 and allowed $122.08 to plaintiffs for the cost of taking depositions. Judgment was entered for these two amounts or $558.34, and judgment was entered on the verdict for $700 in defendants’ favor and against plaintiffs. Plaintiffs prosecute this appeal.

The record discloses that July 6, 1932, the Southern Pacific Railroad Company received from Travers & Sakata at Watsonville, California, a carload of lettuce consigned to defendants at Chicago for which the railroad company issued its uniform, straight bill of lading. July 13, the car arrived in Chicago and was rerouted July 14, to Newark, New Jersey, where it arrived July 16, 1932. July 21 the car was ordered from Newark to Boston, Massachusetts, where it arrived July 23, 1932, where the purchaser refused to accept the lettuce because of its damaged condition and it was sold by the railroad company, as stated, for $60.32.

On the trial it was stipulated that if defendant, Lorenzo Gillarde, were called, he would testify that after the arrival of the car in Chicago the lettuce had "been sold to the American Stores, Inc., of Philadelphia, Pennsylvania, for $1,040, and the evidence further shows that the car was sent to Newark, N. J., to the American Stores, Inc., and there refused because of the damaged condition of the lettuce.

Plaintiffs contend the judgment is wrong and should be reversed because plaintiffs were entitled (1) to Interest on the amount of the transportation charges from the date delivery of the lettuce was tendered, (2) plaintiffs were also entitled to attorney’s fees to be taxed as costs for the reason that defendants filed false pleadings setting up matters which they knew to be untrue as a result of which plaintiffs’ counsel was put to a great deal of unnecessary work, and that such attorney’s fees should be taxed against defendants, (3) that the trial court had no jurisdiction of the subject of the counterclaim; and (4) that plaintiffs transported the lettuce without negligence and therefore were not liable to defendants on account of any damage and the judgment of $700 should be reversed.

(1) Plaintiffs’ claim is that they are entitled to interest at the rate of 5 per cent per annum on the amount of the transportation charges by virtue of § 2, chapter 74, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 67.02], which provides that creditors shall be allowed to receive interest at the rate of 5 per cent per annum for all moneys after they become due on any bond, bill, promissory note or other instrument of writing. And counsel say that the freight charges are determined by the lawful published freight tariffs on file with the Interstate Commerce Commission and therefore the court erred in not awarding interest on the amount remaining due plaintiffs. We think there is no merit in this contention. While the transportation charges have not been questioned, yet we are of opinion defendants’ counterclaim was properly filed and it would be only the excess, if any, of plaintiffs’ claim which would draw interest. In the instant case, the counterclaim being more than plaintiffs’ claim1 for transportation it follows that plaintiffs could recover no- interest.

(2) As to the question of the allowance of attorney’s fees. We think there is some merit in this contention. Defendants filed numerous defenses where they alleged they did not own the lettuce and in the next paragraph that they did. The suit was not filed until several years after the lettuce was shipped and obviously defendants knew whether they owned the lettuce or not and they cannot be excused on the ground urged that they had a right to plead alternative defense. This is only allowable when such matters are pleaded in good faith but we think that is not the fact in the instant case. On the other hand, plaintiffs filed a statement of claim and after defendants filed a recoupment or counterclaim an order was entered by stipulation striking the statement of claim and the affidavit of defense and recoupment. July 21, 1936, a year after the suit was brought, plaintiffs filed an amended statement of claim. An affidavit of defense was filed by defendants to this and later an amended defense and an amended counterclaim. An order was afterward entered sustaining plaintiffs’ motion to strike defendants’ affidavit of merits and counterclaim from the files. Defendants then filed a second amended defense to the second amended counterclaim. Plaintiffs answered the second amended counterclaim. Afterward defendants filed a third amended defense and an order was entered allowing plaintiffs to reply which they did April 12, 1937. We are unable to understand why it was necessary to file such pleadings and no explanation has been made. The issues involved should have been simply and easily stated without encumbering and confusing the record.

Upon a consideration of the entire record, we are unable to say that the trial court erred in refusing to allow plaintiffs’ attorney’s fees.

(3) Counsel for plaintiffs contend the court had no jurisdiction of the counterclaim because claims for damages to interstate shipments are governed exclusively by the Interstate Commerce Commission Act and more particularly by “Section 20 (11) thereof,” 49 U. S. C. A., sec. 20, par. 11.

That section provides: “Any . . . railroad ... receiving property for transportation from a point in one State ... to a point in another State . . . shall be liable to the lawful holder (of the bill of lading) for any loss, damage or injury to such property caused by it or by any . . . railroad to which such property may be delivered or over whose line or lines such property may pass . . . and any . . . railroad so receiving property for transportation . . . or . . . delivering said property so received and transported shall be liable . . . for the full actual loss, damage, or injury to such property caused by it or by any such, . . . railroad ... to which such property may be delivered. . . . Provided further, That all actions brought under and by virtue of this paragraph against the delivering carrier shall be brought, and may be maintained, if in a district court of the United States, only in a district, and if in a State court, only in a State through or into which the defendant carrier operates a line of railroad.” And the argument is that the plaintiff, the New York, New Haven & Hartford Railroad did not operate a line in Illinois and therefore the municipal court of Chicago had no jurisdiction. We think this contention cannot be sustained. If defendants had brought an original action in Chicago" obviously the section would apply and the court would have no jurisdiction but that is not the case before us. In the instant case, the New York, New Haven & Hartford Railroad brought its suit in the municipal court of Chicago and obviously defendants had the right to interpose any defense, including a counterclaim or set-off. § 38, par. 162, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.038]. The court had jurisdiction of the counterclaim.

But counsel further contend that in no event can a counterclaim be interposed where plaintiffs bring suit to recover the transportation charges and in support of this cite New York, New Haven & Hartford R. Co. v. California Fruit Growers’ Exchange, 125 Conn. 241, 5 A. (2d) 353. And counsel say: “the Act [Transportation Act] provides that the debt for freight charges is irrevocably fixed by the lawful tariffs applied to the bill of lading and the services rendered, and becomes due and payable immediately at the termination of the transit. The freight charges cannot be diminished or ‘defeated’ and may not be varied by reason of any damage liability which may exist against the carrier; freight charges, the money due carriers for transportation, are not dependent upon future litigation of and balancing out of damage claims. Congress has provided a separate and distinct method for the handling of such claims in Section 20 (11).”

The Connecticut case cited does not sustain counsel’s contention. In that case an action was brought by the railroad to recover freight and refrigeration charges upon a carload of oranges. Upon arrival of the shipment at destination the defendant directed plaintiff railroad company to deliver the shipment to Shore Bros., Inc., “on payment of freight and all other charges.” The shipment was delivered but the charges were not collected. Afterward Shore Brothers discontinued business and suit was brought against the consignor of the oranges. Defendant pleaded by way of recoupment that plaintiff failed to comply with the delivery order in that it delivered the oranges without collecting the freight and other charges, and contended that it was entitled to recoup the amount of the charges “in diminution and extinction of plaintiff’s claim.” The court held this could not be done. In the opinion the court cited the case of Chicago & N. W. Ry. Co. v. Lindell, 281 U. S. 14, and in speaking of that ease said “We think that case is not applicable to the issue here presented which involves nothing more than the right of the carrier to collect the full amount of its charge for the shipment; whereas in the case last above cited the shipper had an independenclaim against the carrier for damage of goods in transit. ’ ’ In the Lindell case it appeared that Lindell had delivered grapes to the railroad in California for transportation to Chicago. The grapes were transported and delivered to the consignee in Chicago without collecting freight and other charges. Following these facts the court said: “Because of unreasonable delay on the part of appellant and its failure to use reasonable care to keep the car properly iced, the grapes were delivered in a damaged condition. Appellant sued in the United States District Court . . . to recover such charges. And appellee by answer set up the loss.” The court allowed the loss and the question was certified to the Supreme Court of the United States where the court said the decisions on the question involved had been conflicting and refers to such cases in the foot-note. The judgment of the court was affirmed. The court there said (17) “The adjustment of defendant’s demand by counterclaim in plaintiff’s action rather than by independent suit is favored and encouraged by the law. That practice serves to avoid circuity of action, inconvenience, expense, consumption of the courts’ time, and injustice.” The court then cites Partridge v. Ins. Co., 15 Wall.. 573, and said: “In the case last mentioned the Court, speaking through Mr. Justice Miller, said (p. 580): ‘It would be a most pernicious doctrine to allow a citizen of a distant State to institute in these courts a suit against a citizen of the State where the court is held and escape the liability which the laws of the State have attached to all plaintiffs of allowing just and legal set-offs and counterclaims to be interposed and tried in the same suit and in the same form.’

"The practice of determining claims of shippers for loss or damage in suits brought by carriers to collect transportation charges is not repugnant to the rule prohibiting the payment of such charges otherwise than in money.” That case is directly in point and contrary to plaintiffs’ contention. (See also Mich. Cent. R. Co. v. McKenna, 236 Ill. App. 575.)

(4) Was the railroad company negligent? At plaintiffs’ request the following question was submitted to the jury: “Was the lettuce in good, sound condition at the time it was shipped from Watson-ville, California?” Which the jury answered, Yes.” The evidence shows that when the car arrived at Newark the lettuce was in a damaged state and the purchaser rejected it. Plaintiffs say there was no evidence tending to show that the damaged condition of the lettuce was brought about through any act of the transportation companies and therefore the court should have sustained plaintiffs’ motion for a directed verdict at the close of all the evidence. Plaintiffs further contend the court erred in admitting a document prepared by the Southern Pacific Railroad Co. which showed the mechanism of the plug, hatch cover and hatchway and how the closing of the plug, etc., might be improper, as a result of which hot air would get into the car and cause the damage complained of. In view of the way the case was tried, we think there was no error in this respect. The record discloses that objection was made by counsel for plaintiffs to the, admission of this exhibit and after considerable argument between court and counsel and after questions were asked the witness, counsel for plaintiffs said: “Well, I will consent to it being admitted in evidence,” and thereupon it was so admitted. We think the court did not err afterwards in refusing to strike the exhibit as counsel for plaintiffs requested.

There was evidence that the lettuce was affected by tipburn when it was taken from the field to the car and further evidence to the effect that this brought about the damage to the lettuce and that the damage was not through any fault of the transporting companies.

On the other side a witness called by defendants testified he had been inspecting cases of perishable fruits for many years; that “I have testified as an expert before over a period of 31 years.” He gave as his opinion that warm air from the outside must have got into the car because the hatch covers were not closed and the plugs were not in place. He testified, “I am satisfied that there must have been some outside air that came into the car and burned up the ice. . . . The decay in this case was from outside air.” This witness further testified that if the hatch covers were properly closed and the plugs in, the lettuce would have been properly preserved. “I would say the disappearance of top ice was the primary cause for the decay discovered in this shipment at Newark. . . . The admission of outside air is the very thing which caused that [decay].” This witness did not see the lettuce but testified only from the certificates made by inspectors who examined it.

Upon a careful consideration of all the evidence, we are unable to say the finding of the jury in favor of the defendants on their counterclaim is against the manifest weight of the evidence.

Complaint is also made that the court erred in refusing to give plaintiffs’ requested instructions numbers 11, 12, 13, 14, 15 and 16.

Instruction 11 was to the effect that plaintiffs were liable only for their own negligence. This offered instruction was properly refused because under the statute plaintiff, as delivering carrier, was liable for the negligence, if any, of the other railroads.

Instruction 12 was subject to the same criticism because it sought to tell the jury that if they found “plaintiff guilty of conduct” which contributed to cause the damages and the damages were caused in part by the nature and tendency to the decay of the lettuce the damages assessed should be diminished, etc. This instruction might mislead the jury because plaintiff would be liable even though it were guilty of no negligence because it could be held for the negligence of the other railroad companies for any damage.

Plaintiffs ’ offered instruction 13 defined the measure of damages to be the difference between the fair cash market value of the lettuce in its damaged condition and the fair cash market value if it had been delivered in good condition. It was stipulated that defendants had sold the lettuce in Newark for $1,040 and we think this figure should be used as a basis for fixing the damages.

By plaintiffs’ offered instruction 14 it was sought to tell the- jury that if they found “that the evidence on both sides is evenly balanced as to whether the lettuce was in good sound condition at the time of shipment so that they were unable to say on which side is the preponderance, or if the preponderance of the evidence is in favor of the railroad, then, in any of these cases, the jury’s verdict should be for the railroad.” We think defendants were required to prove the lettuce was in good condition when delivered to the railroad in California, and when they proved it was in damaged condition when it arrived at Newark, this made a prima facie case. Freedman v. Erie R. Co., 246 Ill. App. 479; Railway Express Agency, Inc. v. H. Rouw Co., 197 Ark. 1142, 128 S. W. (2d) 989. The United States Government inspection certificate at Watsonville, Calif., was admitted in evidence and showed the lettuce was in good condition at that point. The burden then of going forward with evidence was on the railroad to show that the damage was not the result of negligence on its part. Even if the lettuce was not perfect when it was put in the car at California, this would not relieve the carrier from any damage that resulted from its negligence. We think it was not reversibly erroneous to refuse the instruction.

Defused instruction 15 was as follows: “Once a con-, dition is shown to exist it is presumed that such condition continues to exist unless there is evidence to the contrary.” This was abstract in form and it is never prejudicial error to refuse such an instruction. We think it clear this offered instruction would be of no assistance to the jury.

'By offered instruction 16 it was sought to tell the jury that “Evidence as to what has happened in certain other instances does not prove one way or the other that the particular situation has or has not occurred here. The fact that plugs can be inserted wrongly is no evidence that they were or were not inserted wrongly in this case.” We think this instruction was apt to be misleading. As above stated, a witness testified that in his opinion warm air from the outside got in through the plugs which caused the ice to melt with resulting damages. We think the instruction was properly refused.

A further point is made that the verdict is inconsistent with the evidence and that it is excessive. In support of this counsel for plaintiffs say “The verdict of $700 is inconsistent with both the net market value ($580) or the contract price ($1,040). On a market value theory it is grossly excessive, for even if the decay arose from carrier negligence and not from tip-burn, 40% of the shipment was unmerchantable because of tipburn and the only consistent verdict would have been $580 less 40% or $380.” Whether the damage was caused by tipburn or by the negligent handling of the refrigeration equipment, we think it was for the jury. Defendants’ proof was to the effect that they had lost $1,040 and although the jury only awarded them $700 we think plaintiffs are not in a position to complain.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    Chicago Bar Association, et al., Appellees, v. United Taxpayers of America and Earl G. Teeter, Appellants.
    Gen. No. 41,786.
    Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed December 22, 1941.
    Rehearing denied January 5, 1942.
    Anthony J. Sakelson, of Chicago, for appellants; Gerald T. Wiley and Richard F. Hahn, both of Chicago, of counsel.

      Charles Leviton, of Chicago, for appellees; Charles F. Hough, Werner W. Schroeder and Cushman B. Bissell, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Chicago Bar Association and certain of its members filed a complaint in chancery against the United Taxpayers of America, a corporation not for pecuniary profit, and Earl G. Teeter, a certified public accountant, who both sides agreed should be treated as one, to enjoin them “from practicing law in any form, either directly or indirectly, or from holding themselves . . . out as having the right to practice law or the right to represent others in tax matters before the Department of Finance of the State of Illinois ... or in preparing or filing claims for refunds of taxes” etc. Defendants filed an answer to which plaintiffs replied. There was a hearing before the court, a decree entered in accordance with the prayer of the complaint and defendants appeal.

The facts in short compass are that defendant Teeter, by letters, solicited from certain parties authority to represent them “in the preparation and presentation of claims for the credit and refund of Illinois Occupation taxes illegally collected from you,” as stated in one of his letters, and in another letter to another party he asked for authority “to represent you in the preparation, presentation and prosecution of claims for the credit and refund of Illinois Retailers’ Occupation taxes illegally collected from you.” For these services one letter stated he would charge 50 per cent of the refund and the other letter, 25 per cent. These two letters were on the following letterhead: “Earl G. Teeter, Certified Public Accountant, Tax Counsellor, 176 West Adams Street, Chicago, State 6460” and were signed, “E. Gf. Teeter, Tax Counsel, United Taxpayers of America.”

There was also mailed to one of the parties a typewritten document on the following letterhead: “United Taxpayers op America, Incorporated not for pecuniary profit, 176 West Adams Street, Chicago, State 6460.” Part of this document is as follows: “Contractors are entitled to refund of occupation taxes erroneously collected,” and it was stated that it had been held contractors engaged in the general building or construction business were not liable for the occupational taxes and that the department [of finance] was required to make refunds of cash or credit where the payment had been made through mistake of law or fact; that the credit on future taxes would be of no avail and therefore “the department is required to make such Refunds in cash. The statute requiring such refund is explicit. In view of the running of the Statute of Limitations immediate steps should be taken to protect your interest. Please fill out and return the enclosed form on receipt of which you will be advised as to the necessary procedure.” There was also a blank form of claim to be filled out.

On the hearing it was agreed that Teeter had filed with the Department of Finance of Illinois, 34 claims of contractors which aggregated $23,449.69. Defendant Teeter was a certified public accountant but not admitted to practice law.

Plaintiffs’ position is that what defendant Teeter did constituted the practice of law, while on the other side, Teeter contends that since he was a certified public accountant he had the right to file claims with the Department of Finance for persons or concerns, for the refund of taxes illegally collected and to represent such persons or concerns before the Department of Finance. In this connection his counsel in their brief say “That as a Certified Public Accountant he had the right to give the opinions and the advice he gave through himself or through the United Taxpayers of America, and that such opinions and advice were incidental to the exercise of his rights as a Certified Public Accountant and as such do not constitute the practice of law.

•‘ That the contracts of employment with the Austin Plumbing Company and F. G. Bing and Company do not compel either of the defendants to do any act which would be the practice of law such as going to the Superior or Circuit Court, nor representing the taxpayer before any formal hearing in the Department of Finance, which would be tantamount to taxpayers’ day in Court.”

Section 12 of the Retailers’ Occupation Tax Act [par. 451, ch. 120, Ill. Rev. Stat. 1941 (Jones Ill. Stats. Ann. 119.464)] provides: “The Department is authorized to make, promulgate, and enforce such reasonable rules and regulations relating to the administration and enforcement of the provisions of this Act as may be deemed expedient. . . .

“All hearings provided for in this Act shall be held in the county wherein the taxpayer resides or has his principal place of business: . . .
“The Circuit and Superior Court of the County wherein the hearing is held shall have power by writ of certiorari to the Department to review all questions of law and fact determined by the Department in administering the provisions of this Act presented by such record.”

By § 6, par. 445 of the same act it is provided that if any tax penalty or interest under the act has been paid which was not due “whether as the.result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act from the person who made the erroneous payment, or such amount shall be refunded to such person by the Department. ...

“Claims for credit or refund shall be filed upon forms provided by the Department.” That “the Department shall examine the same and determine the amount of credit or refund to which the claimant is entitled . . . which amount shall be prima facie correct. In case the Department determines that the claimant is entitled to a refund such refund shall be made only from such appropriation as may be available for that purpose.”

Pursuant to the provisions of § 12 of the act, the Department of Finance made Rule 1 which is as follows: “Persons qualified by the University of Illinois as Certified Public Accountants, or persons holding a Certificate of Begistration as a Public Accountant from the Department of Begistration and Education of the State of Illinois may be designated by taxpayers to appear and represent them in any matter in hearing before the Department of Finance.”

It is agreed that Teeter was a certified public accountant, but as we understand the argument of counsel for plaintiffs, what Teeter did constituted the practice of law and that Rule 1, made by the Department of Finance, is void and “Only attornéys-at-law have the right to represent others before administrative bodies, such as the Department of Finance.”

The question of what constitutes the practice of law has been before our Supreme Court a number of times but we think it necessary to refer to but one of such cases. People ex rel. Chicago Bar Assn. v. Goodman, 366 Ill. 346.

In that case an information was filed by leave of court praying that Goodman be held in contempt of court for practicing law. The court found him guilty as charged and imposed a fine of $500. Goodman was not a lawyer; he had offices in Chicago. As stated by our Supreme Court, he was engaged “in the business of handling and adjusting workmen’s compensation claims.” He solicited such claims by advertisements, cards, letters, radio, etc. The claims were all taken on a contingent fee basis, usually 20 per cent of the amount recovered. After he obtained a contract of employment from the injured workman, he negotiated for settlement and if effected, he prepared and filed a petition with the Industrial Commission and obtained an order approving the settlement. In case no settlement was reached he prepared and filed a claim for adjustment and had a hearing before the arbitrator of the Commission where he presented evidence. In the event an award was allowed and an appeal taken to the Industrial Commission as a whole, he followed the matter. Only when an especially difficult question of law or fact arose, or when appeals were taken to the circuit court did he employ a member of the bar. Few cases were represented by attorneys. When he discovered that the claim was enforcible at common law, and not under the Workmen’s Compensation Act, he negotiated for settlement. If a settlement was not reached he employed an attorney for that purpose.

The court held that what he did was the practice of law and said: “The power to regulate and define the practice of law is a prerogative of the judicial department as one of the three divisions of the government created by article 3 of our constitution. The legislative department may pass acts declaring the unauthorized practice of law illegal and punishable. Such statutes are merely in aid of, and do not supersede or detract from, the power of the judicial department to control the practice of law. . . . The power is inherent in this court to prescribe regulations for the study of law and the admission of applicants for the practice of that profession. (People v. Peoples Stock Yards State Bank, 344 Ill. 462; . . . .)

“ . . . These prerequisites are not for the purpose of creating a monopoly in the legal profession nor for its protection, but are for the better security of the people against incompetency and dishonesty. (People v. Alfani, 227 N. Y. 334.) ”

Continuing the court said: “In People v. Peoples Stock Yards State Bank, supra, at page 475, the court stated that the definition of the practice of law therein set forth was substantially correct. This" court and other courts have always been reluctant to adopt an all inclusive definition of the term ‘practice of law.’ . . . . The procuring of an agreement enabling an unlicensed person to control the negotiations and the litigation that might follow on the failure of the negotiations, and the hiring of licensed attorneys to conduct litigation for others, for the financial profit of the hirer, has been defined as the practice of law. . . .

“It is urged that the practice by the respondent before the Industrial Commission is before an administrative body, and that the respondent, therefore, is not practicing law because he is not before a court. That precise question is one of first impression in this court. . . . The respondent urges that because the legislative act relating to the Industrial Commission grants to that body the right to promulgate rules governing the procedure before it, and the commission has adopted a rule permitting a party to appear before it, and the commission has adopted a rule permitting a party to appear before it by Ms attorney or ‘agent,’ that he, as agent of the claimant, may lawfully appear before the commission as the representative of the client and try his claim there. Even though the Industrial Commission is merely an administrative body, yet, if what the respondent did for a fee, in the presentation) of and hearing of a petitioner’s claim before that body, amounted to the practice of law, a rule of the commission purporting to grant him that privilege is of no avail to Mm. The General Assembly has no authority to grant a layman the right to practice law. (In re Bay, supra.) It follows that any rule adopted by the commission, purporting to bestow such privilege upon one not a duly licensed attorney at law, is void. Nor can the General Assembly lawfully declare not to be the practice of law, those activities the performance of which the judicial department may determine is the practice of law.” The court then refers to and discusses the case of Goodman v. Beall, 130 Ohio St. 427, points out a distinction between the Ohio and Illinois statutes and continuing says: “In so far as the opinion in the Beall case, supra, may appear to conflict with our views as here expressed, we decline to follow that case.”

While the Goodman case involved the work required to be done pursuant to the provisions of the Workmen’s Compensation Act and the case before us involves the Retailers ’ Occupation Tax Act, we think the reasoning of our Supreme Court is applicable to the facts in the case before us, and to the requirements of the latter act. Section 6 of the Retailers’ Occupation Tax Act provides for the filing of a claim, for the refund of taxes improperly paid, with the Department of Finance. The matter must there be considered by that department, hearings may there be required and if the result is unsatisfactory to the claimant, application would then probably be required to the circuit or superior court for a writ of certiorari, as provided in § 12 of that act.

We think what Teeter did was the practice of law as defined by our Supreme Court in the Goodman, and other cases. Moreover in the letters hereinbefore referred to which he sent to claimants he signed his name as “Tax Counsel” and the letterheads designated him as follows: “Earl G. Teeter, Certified Public Accountant, Tax Counsellor.” And although it is said the United Taxpayers of America was incorporated not for pecuniary profit, Teeter was demanding from 25 to 50 per cent of the amount of the refund.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

McSurely, P, J., and Matchett, J., concur.


text:
    Mary Osborn et al., Appellants, v. William Leuffgen et al., Appellees.
    Gen. No. 41,794.
    Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed December 22, 1941.
    Rehearing denied January 5, 1942.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellants; Francis E. Hinckley and James P. Walsh, both of Chicago, of counsel.
    Lord, Bissell & Kadyk, of Chicago, for appellees; Raymond Wearing and Gordon R. Close, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs base their right to recover damages on the provisions of § 14 of the Dram Shop Act (ch. 43, par. 135, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 68.042]) making the tavern keeper, his bartender and the owner of the premises in which the tavern was conducted defendants. At the clase of plaintiffs ’ case, defendants moved for a directed verdict. The court reserved ruling on the motion. Thereupon defendants rested their case and again moved the court to instruct the jury to find defendants not guilty, which motions the court reserved. The case was then submitted to the jury whose verdict was in plaintiffs’ favor for $4,800-$3,600 was awarded to Mary Osborn, the widow of Hope J. Osborn who died within 48 hours as a result of injuries he had received in the tavern and $300 was awarded to each of the four minor children. Afterward defendants filed “their written motions in the alternative for judgment notwithstanding the verdict, for a new trial and in arrest of judgment.” The court sustained defendants’ motion for judgment notwithstanding the verdict but did not pass on the other motions and plaintiffs appeal.

The record discloses that Hope J. Osborn, 46 years of age, was employed by the Illinois Central Railroad Company as a switchman, near Van Buren street, Chicago. He lived with his family, his wife and four minor children, who are plaintiffs here, at 9309 Cottage Grove avenue, Chicago, in an apartment on the second floor. Defendant, William Leuffgen, owned and operated a tavern located on the first floor of the building where the Osborns lived. October 19, 1938, Osborn went to work as usual and finished his day about midnight. He then took one of the Illinois Central trains and when he got to the station, which was about three blocks from his home, it was about 12:47 o’clock. He then went to the tavern where defendant, Peter Gilgenberg, was tending bar and there met Joseph Dobry and Axel Berkquist, patrons of the tavern, all of them being acquainted. They had some beer and sat around and played a game with dice. While they were in the tavern, Helen Hrabar and her escort, William Lefkie, came into the tavern and went to the back room where they were served by the bartender. Some time thereafter there was lond talking and an argument between Osborn and the other two customers who were at the bar with Osborn; a fight ■ensued, Osborn was knocked down and severely injured and Dobry and Berkquist left the tavern as did Miss Hrabar and her escort who saw the bartender wipe the blood off Osborn’s face with a towel. Osborn went upstairs to his apartment, the police were called, he was taken to a hospital where he was treated and died about 48 hours after he was struck.

Section 14 of the Dram Shop Act provides: “Every . . . wife, child, parent . . . who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages.”

Paragraph 5 of § 2 of the Dram Shop Act defines “beer” as an “alcoholic liquor.”

Counsel for plaintiffs in their brief say: "The only question in the case was whether there was evidence tending to prove that Osborn came to his death in consequence of the intoxication, habitual or otherwise, of any person.” We think this is a correct statement of the controlling question. The law is that on a motion for judgment n.o.v. the court has no power to weig’h the evidence and the motion should not be allowed where there is any evidence in the record which, standing alone, tends to prove the material allegations of the complaint even though the court is of opinion that a verdict for the plaintiff, if given, must be set aside as against the preponderance of the evidence. Libby, McNeill & Libby v. Cook, 222 Ill. 206. This rule of law has not been changed by the Civil Practice Act. Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471. The question therefore for decision is, is there any evidence in the record tending to prove that Hope J. Osborn came to his death in consequence of the intoxication of any person who was served with liquor in the defendant Leuffgen’s tavern? This is further narrowed by the question whether Osborn came to his death in consequence of the intoxication of Joseph Dobry, Axel Berkquist or of Osborn himself, which was brought about in whole or in part by liquor which they had at the tavern in question.

Counsel for plaintiffs asked the court to call Joseph Dobry as a court’s witness because it was claimed he was hostile. This was objected to by counsel for defendants and the objection sustained. He was then called by plaintiffs. He testified that in October, 1938, he had been working "on the W.P.A." but was off duty October 19; that on that evening shortly after midnight he went to Leuffgen’s tavern and was there until after the trouble; that he had known Berkquist for about eight years and Osborn for about two years and had never had any trouble- with Osborn and had no grudge against him; that while he was in the tavern he drank a bottle of beer and just before the trouble had finished half of a second bottle; that he had had nothing else to drink that night or morning; that Osborn came to the tavern about 25 minutes after the witness and the three of them were sitting on stools at the bar; that when Osborn came in he asked for a drink; that the bartender would not serve him so he asked for a dice game with Berkquist; that Berkquist invited the witness to have a drink and that he replied he had almost a full bottle and would take another a little later. They started the dice game which broke up in an argument; that they started a second game and Osborn accused Berkquist of cheating; that they got into an argument; that Berkquist walked away followed by Osborn who said: “I ought to knock your block off.” That Dobry further testified he stepped between them and said: “No sense of hitting an old man like this. He is old enough to be your father.” That Osborn replied: “What are you going to do about it?” “I said, ‘Nothing. Why don’t you be yourself. ’ Just one word led to another, and he grabbed me by each wrist and stood me up against the bar and Peter Gilgenberg [the bartender] said, ‘Sit down.’ I said, ‘Let him let go of me.’ . . .. ‘I don’t want to argue with this man.’ ” That Osborn walked away, called Dobry a vile name and made remarks about his wife. After further argument the witness testified that Osborn said: “I ought to give you a good rap.” That Dobry weighed about 150 pounds and Osborn about 180 pounds; that Osborn took a punch at him and missed and Dobry then struck him on the nose with his fist; “He struck me and I struck him. He was sitting on the floor. I don’t know how he got down on the floor. He struck at me and I struck back. I hit him. I hit him right on the bridge of the nose. I hit him with my fist.” The evidence further shows that shortly after that when Dobry and Berkquist left the tavern the bartender was wiping the blood off Osborn’s face.

Helen Hrabar testified she lived in the neighborhood and was employed as a saleslady in a department store at 92nd and Cottage Grove avenue; that she had patronized the tavern and knew Leuffgen, the proprietor, and Gilgenberg, the bartender; that about 12:45 or 1 o’clock on the morning of October 19, she drove to the tavern with Mr. Lefkie in his automobile; that she there saw Dobry, Berkquist and Osborn who were sitting together at the bar with some glasses in front of them, ‘ ‘ They had been drinking. At that time they were just sitting there and talking. It was just ordinary conversation.” That she and her friend went into a back room, sat down at a table, ordered a drink and were served by the bartender; that they remained there from a half to three-quarters of an hour; while there they heard people talking a little loud. The conversation later got louder; that she heard a scuffle and something fell; that she saw the bartender go into the back room; later he returned with a towel; that she and her escort got up and went into the barroom and there saw Osborn on the floor; that just before they went into the front room they heard a door slam; that when they got there Dobry and Berkquist had gone. Osborn was lying on the floor in the front part near the door, his face was bloody and badly bruised; that the bartender wiped his face with a towel and she and her escort left at that time.

William Lefkie testified he called for Miss Hrabar at her home and took her to the tavern in his automobile; that when they entered the tavern he recognized the bartender, Berkquist, Dobry and Osborn; “I knew Mr. Dobry very well, and I knew Pete [the bartender],” that he knew Osborn by sight but had never talked to him; that when he and Miss Hrabar first came to the tavern the three men were at the bar, Dobry had a bottle of beer before him and greeted him, and he and Miss Hrabar went into the back room where they remained for about 45 minutes; that he didn’t pay any particular attention to what the three men were doing; that “It seemed to me that Mr. Osborn was slouched over and he appeared to have been drinking. I didn’t notice anything about Mr. Dobry at that time. ’ ’ That after they had been sitting in the back room for some time he heard loud talking and thought it was Osborn and Dobry; that he heard dice rolling and from the way they were talking he knew they were arguing about the game; that they finally got into a hot argument and then stopped and then it started again and he heard a commotion “feet scuffling around . . . they were fighting. ... I didn’t look out, but I did hear the expression ‘Polack’ and ‘my wife.’ ” The words were uttered very loudly; that he knew Dobry was very mad; that the altercation quieted down; that the next thing he noticed was the bartender coming out of the washroom with a towel and “I thought it was time to leave.” That they got up and left; that Osborn was lying on the floor and the bartender was wiping the blood off his face with a towel; that Osborn had blood all over his face. That he thought the way the bartender acted he (the bartender) had a few drinks; “I would say he was not entirely sober although I wouldn’t say he was intoxicated.” That after he heard the altercation he and Miss Hrabar went into the barroom to leave and Dobry was at the door just leaving.

Plaintiff Mrs. Osborn, and some of the children testified in substance that about 12:30 or 1 o’clock in the morning of October 20, she was in bed and heard someone at the door — it was her husband who said, “For God’s sake, Mary, open the door.” That she did so and saw his face was all battered up and blood was all over his face and clothes; that he said he was injured down in the tavern; that it was “Dibby [Dobry] and his bunch” who did it. The police were then called and Osborn was taken to the. Burnside Hospital; that after receiving first aid he- was taken to the Illinois Central Hospital.

Dr. Sanovic testified that Osborn, whom he had not known, was brought to the Burnside Hospital for emergency treatment in the early morning of October 20; that he had a laceration on the left side of his nose; “deep lacerations at the inner canthus of the right eye and left eye; a fracture of the nose and right and left cheek bones and discoloration that took place.” That the doctor gave him first aid and Mrs. Osborn asked that he be taken to the Illinois Central Hospital as he belonged to the employment benefit.

Dr. Carter testified he made an autopsy of the body of Hope Osborn at the Illinois Central Hospital in October, 1938; that Osborn was 46 years old, 5 feet 11 inches tall and weighed about 175 pounds; that he found “fracture at the base of the nose and fracture at the base of the skull.” He further testified as to what he found, using long, medical terms which he said meant in plain English that he found a “fracture acoss the base of the nose that extended back into the occipital region, back through the head and base of the skull; that he had a hemorrhage in the back of his head and the hemorrhage was under the scalp, and he had a basal skull fracture, that is to say, a fracture extending across the base of the skull, in addition to the fracture over the face. In my opinion, he died as a result of the fracture of the skull. ’ ’

We think the question whether the death of Hope J. Osborn resulted from the intoxication of any or all of the three persons who had consumed alcoholic liquor in the tavern was a question for the jury and not for the court. Dahlberg v. Chicago City Bank & Trust Co., 310 Ill. App. 231. It is obvious that no juror or anyone else would believe the testimony of Dobry to the effect that Osborn was struck by Dobry with only his naked fist. Osborn’s nose was crushed in, the skull fractured and his teeth knocked out. Of course these injuries were not the result of a blow with the bare fist.

From what we have said it follows that the court erred in entering judgment n.o.v. But since the court failed to pass upon the motion for a new trial, the cause,must be remanded. Walaite v. Chicago R. I. & P. Ry. Co., 376 Ill. 59; Goodrich v. Sprague, 376 Ill. 80; Herb v. Pitcairn, 377 Ill. 405; Dahlberg v. Chicago City Bank & Trust Co., 310 Ill. 231.

In the latter case where motions for judgment n.o.v. and for a new trial were made and the court passed only on the first motion and failed to pass on the motion for a new trial, we reversed the judgment and remanded the cause with directions to pass upon the motion for a new trial. We there also suggested what we thought was the proper practice where the two motions are made and said: “In the Goodrich case [376 Ill. 80] our Supreme Court referred to the case of Montgomery Ward & Co. v. Duncan, 311 U. S. 243 where a somewhat similar question was under consideration and said that the Supreme Court of the United States suggested that to prevent delay and unnecessary retrials the court should have passed on both motions.”

The judgment of the circuit court of Cook county is reversed and the cause remanded with directions to pass upon the motion for a new trial.

Reversed and remanded with directions.

McSurely, P. J., and Matchett, J., concur.


author: Opinion by Presiding Justice McSurely.

text:
    William Holden, Appellant, v. Dr. Samuel Stein, Appellee.
    Gen. No. 41,716.
    Heard in first division, first district, this court at June term, 1941;
    opinion filed December 22, 1941.
    Joseph Barbera and Robert M. Moore, for appellant; Rawlins & Wright, for appellee.
   Opinion by Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Josephine Rashinski, Appellee, v. Travelers Casualty Insurance Company, Appellant.
    Gen. No. 41,726.
    Heard in first division, first district, this court at June term, 1941;
    opinion filed December 22, 1941.
    Meyer A. Ginsburg, for appellant; Earl J. Walker, for appellee.
   Opinion by Presiding Justice McSurely.

“Not to be published in full.’’


text:
    William T. Hanson, Appellee, v. Trust Company of Chicago, Administrator of Estate of Edward Maskell, Deceased, Appellant.
    Gen. No. 41,736.
    Heard in first division, first district, this court at June term, 1941;
    opinion filed December 22, 1941;
    rehearing denied January 5, 1942.
    John A. Bloomingston, for appellant; C. D. Jones, for appellee.
   Opinion by Presiding Justice McSurely.

“Not to be published in full.”


author: Opinion by Justice Matchett.

text:
    John L. Dick, Trading as Dick’s Poultry Company, Appellee, v. Campbell Soup Company (Central Division), Appellant.
    Gen. No. 41,713.
    Heard in first division, first district, this court at June term, 1941;
    opinion filed December 22, 1941;
    rehearing denied January 5, 1942.
    Henry S. Blum and Blum & Jacobson, for appellant; Henry S. Blum and Bernard G. Sang, of counsel; Sol I. Dvorkin, for appellee; Louis A. Smith and Irving L. Block, of counsel.
   Opinion by Justice Matchett.

“Not to be published in full.”


author: Opinion by Justice O’Connor.

text:
    George A. Bosomburg, Appellant, v. Birk Bros. Brewing Company, Appellee.
    Gen. No. 41,804.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed December 22, 1941.
    George A. Bosomburg, for appellant; Phoenix & Murphy, for appellee; Richard C. Murphy, of counsel.
   Opinion by Justice O’Connor.

“Not to be published in full.”


text:
    John Valant, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 41,844.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed December 22, 1941.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and John C. Melaniphy, of counsel; William C. Greatman and Gilbert F. Wagner, for appellee.
   Opinion by Justice O’Connor.

“Not to be published in full.”


author: Mr. Presiding Justice Scanlan

text:
    Automobile Service Corporation, Appellant, v. Community Motors Inc., Appellee.
    Gen. No. 41,371.
    Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed December 30, 1941.
    Mort D. & Frank Goldberg, both of Chicago, for appellant; Lester L. Goldberg, of Chicago, of counsel.

      Heth, Lister & Flynn, of Chicago, for appellee; Thomas E. Griffin, of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An action to recover $103.42, alleged to be due plaintiff from defendant. The case was tried by the court without a jury, the issues were found against plaintiff, and it appeals from a judgment entered upon the finding.

No question is raised as to the pleadings. The facts are not disputed. One Benson purchased from a certain automobile dealer, not named in the record, a Hupmobile sedan and executed a conditional sales agreement for the unpaid balance of the purchase price. The agreement contained the usual provisions retaining title until purchase price was paid in full. Thereafter, on September 7, 1935, for value, Benson executed a chattel mortgage to plaintiff on the automobile in the sum of $105.65. The chattel mortgage was duly acknowledged and recorded. At the time of the suit there was a balance of $103.42 due on the mortgage. On February 21, 1936, Benson purchased from defendant “ (who then was and still is a regular automobile dealer, selling cars to the public) a certain Pontiac automobile, and as part consideration of said purchase traded in the Hupmobile automobile, which is the subject matter of this litigation, and received due credit therefor in the sum of $300 as against the purchase price of the Pontiac automobile which he was then purchasing from the defendant for the sum of $583.31; that of said $300 credit, $225.69 was the indebtedness on the Hupmobile under said conditional sales agreement, and $74.31 for Benson’s equity in said Hupmobile.” Defendant “then and there paid, by its check to the Associates Investment Company, the holder of said Conditional Sales Agreement, the sum of $225.69,” which was the balance due upon said agreement. Plaintiff first learned on May 15, 1936, that defendant had had possession of the Hnpmobile and immediately demanded possession thereof from defendant, but at the time of the demand defendant no longer had possession of the Hnpmobile, having sold it on March 7, 1936, “ to a customer in regular course of business for the sum of $295 and then delivered said Hupmobile to said customer.”

In the trial court defendant contended that Benson could not execute a valid chattel mortgage because of the conditional sales agreement. Plaintiff contended that Benson, a conditional vendee, had sufficient interest or property in the Hupmobile purchased by him to execute a chattel mortgage thereon. The trial court sustained plaintiff’s contention. That ruling was sound. In 6 Berry Automobiles (7th ed.) p. 440, the author states: “Under a conditional sales contract the purchaser has no right to sell or incumber the machine so as to defeat the vendor’s title. It is held that, in conditional sales of personal property in which the title is retained by the seller until the purchase price is paid, the buyer acquires an interest which he may sell or mortgage without the seller’s consent, but the seller’s right to recover the property, if not paid, is not prejudiced by such sale or mortgage.” A number of authorities are cited by the author in support of the statement that “the buyer acquires an interest which he may sell or mortgage without the seller’s consent.” There are many cases that hold that a conditional sales vendee has an interest which he can assign, sell, mortgage, or give away, subject to the rights of the conditional sales vendor or the latter’s assignee. To cite a few: Pearson v. Picco, 181 Wash. 613, 617; Washington Trust Co. v. Morse Iron Works & Dry Dock Co., 106 App. Div. 195, 94 N. Y. S. 495; Levy v. Horn, 90 Misc. 624, 153 N. Y. S. 913; Auto Mortgage Co. v. Montigny, 168 N. Y. S. 670; Moore v. Prentiss Tool & Supply Co., 133 N. Y. 144; Friedman v. Phillips, 84 App. Div. 179, 82 N. Y. S. 96. In this court defendant has changed its position. While it states that “the question as to whether a conditional vendee may execute a valid chattel mortgage has never been squarely passed upon by the Illinois courts,” it admits that “out-of-state authorities” have held that a conditional vendee may mortgage his interest in a chattel, and its position-here is that “a chattel mortgage by the vendee under a conditional sales contract gives the mortgagee no title to or right to possession of the chattel until after discharge of the conditional sales contract. ’ ’ When defendant paid the balance due under the conditional sales agreement the lien of plaintiff’s mortgage became paramount. This was conceded by defendant’s counsel on the oral argument.

The reason given by the trial court for holding in favor of defendant was that “the defendant here cannot be guilty of conversion unless prior to the sale of the automobile secured from Benson, the plaintiff here made a demand upon the defendant and thence took action for the recovery of the chattel”; that defendant “had an absolute right to sell the automobile subject to the mortgage of the plaintiff and that plaintiff has mistaken its remedy by not proceeding against the automobile.” It is agreed that defendant acquired and sold the automobile prior to the time that plaintiff had notice that defendant had had possession of it. The defense in the trial court — as appears from the opinion of the trial judge — was that plaintiff’s chattel mortgage was void and of no effect and that therefore defendant had a paramount title and right to possesssion. Under the circumstances of this case and the position taken by the parties in the trial court, demand was unnecessary. Indeed, it would have been useless. In Barnes Scale Co. v. Rose, 257 Ill. App. 92, the court states (pp. 94, 95): “In Cobbey on Replevin, p. 242, sec. 450, it is said: ‘Where both parties claim title to personal property and the right of possession thereunder, a demand is not necessary to enable either to maintain replevin against the other. . . . This claim of ownership by defendant is inconsistent with the theory that he might have surrendered them (the chattels) on demand, and removes the necessity for demand if one had been necessary.’ In National Bond & Investment Co. v. Zakos, 230 Ill. App. 608, 612, it is said: ‘The object of a demand is to afford the defendant an opportunity to restore the property to the one entitled to possession without being put to the expense and annoyance of litigation. But where it appears that the defendant either before the action was instituted or upon the trial contests the plaintiff’s rights upon the merits, or where it appears that a demand would have been of no avail, then none is required, for the law never requires the doing of a useless thing.’ ”

The ruling of the trial judge that the sole remedy of plaintiff was a “proceeding against the automobile” was based upon the unwarranted assumption of fact that defendant sold the car to the purchaser “subject to the mortgage of plaintiff,” and the erroneous theory of law that no action could be taken by plaintiff against defendant because no demand has been made on defendant prior to the sale. In the trial court and here the bold defense is interposed that plaintiff’s sole action is against the innocent purchaser and the car. That such a defense is not in accord with honest trade practices is clear, and it is surprising that it should be interposed by “a regular automobile dealer.” Defendant sold the Hupmobile to the purchaser “in regular course of business for the sum of $295.” The car was not sold subject to plaintiff’s mortgage, and it is admitted that the purchaser acted in good faith in the transaction and that he paid a fair market price for the car; the price paid was within five dollars of the trade-in allowance on the car. The purchaser, undoubtedly, assumed that defendant had a clear title to the car. We seriously question if the regular automobile dealers would approve the defense made by the defendant. Whether or not plaintiff might have proceeded against the car, if it had discovered its whereabouts, is not before us. The outright sale of the car by defendant constituted a fraud against the purchaser and plaintiff. In equity and good conscience defendant owes plaintiff the amount of its claim.

The judgment of the municipal court of Chicago is reversed and judgment is entered here in favor of plaintiff and against defendant in the sum of $103.42.

Judgment reversed and judgment here in favor of plaintiff for $103.42.

Sullivan and Friend, JJ., concur.