author: Mr. Justice Taylor

text:
    Bernard Neuburger, Appellee, v. Foreman Bros. Banking Company, now known as The Foreman Trust & Savings Bank, Appellant.
    Gen. No. 30,053.
    I. Reformation of instruments — sufficiency of evidence to show omission by mutual mistake of intended provisions in trust agreement. Evidence in a suit to reform a trust agreement held to show that, by mutual mistake of the parties who executed the agreement, there was inadvertently omitted from the draft of the agreement executed by the parties, an intended provision authorizing the investment of the trust funds in real and personal estate, and an intended provision touching the disposition of the income from such trust funds in the event of the death of both of the complainant and his wife prior to the decease of either of his children.

      2. Reformation of instruments — representation of interest of persons not in esse. Where the creator of a trust agreement seeks reformation, thereof, by the insertion of provisions omitted from the draft of the instrument executed by the parties thereto, and the insertion of such provisions will authorize a testamentary disposition of the corpus of the trust estate cutting off the conditional beneficial interest of nephews of the creator of the trust, contrary to the terms of the instrument as stated in the executed draft, thus affecting the potential rights of possible but unborn grandchildren of the trust creator, reformation will not be denied on the ground that such grandchildren are necessary parties, since their interests are amply protected by the parties before the court.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    D ’Ancona & Pelaum, for appellant.
    Pritzker & Pritzker, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a decree ordering certain corrections to be made in a trust agreement. On January 3, 1922, the complainant, Bernard Neuburger, filed a bill of complaint in the superior court of Cook county. Subsequently, other pleadings were filed and the issues, as finally made up, are shown by a fourth amended bill of complaint and the answer of the defendant, Foreman Bros. Banking Company (after-wards entitled The Foreman Trust & Savings Bank, and hereinafter designated as the Bank).

The complainant alleged in the fourth amended bill of complaint that on or about August 14, 1918, desiring to establish a trust fund to assure to himself an income for life, and to provide for the maintenance and support of his wife and children, he concluded to enter into negotiations with the Bank for the purpose of creating such a trust, of which the Bank should act as trustee; that in pursuance of that determination he consulted with the Bank, and that they together reached an understanding that he, the complainant, would cause to be drafted an instrument by which he would deposit $60,000 with the Bank as trustee; that the instrument should provide that the Bank would have full power and authority to invest the funds in real, personal and mixed property of any kind, and have power from time to time to modify or change the investments; that in the drafting of the trust agreement the complainant should have the sole right to determine the manner of the distribution of either the principal or the income, and the duration of the trust estate; that pursuant to that understanding with the Bank, he directed the drafting of an instrument, substantially as follows:

“First: Whereas the party of the first part (Bernard Neuburger) is desirous of establishing a trust fund to assure to himself and to other persons to whom he is bound in love and affection to provide for their maintenance and support, and desiring to place beyond his control and dominion the fund hereinafter referred to, Now Therefore, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration paid to each of the said parties, the receipt whereof is hereby acknowledged, said parties mutually agree to and with each other as follows;
“Second: Said first party (complainant) agrees contemporaneously with the execution of this instrument to, and does by these presents assign, convey and deliver unto the said party of the second part the sum of Sixty Thousand Dollars ($60,000.00) par value of the bonds of the United States of America, * * * to have and to hold unto the said second party and its assigns until the trust herein created shall have terminated. In Trust Nevertheless for the following uses and purposes, to wit,
“(a) To take, hold, control and manage the fund so with it deposited, collect the income therefrom as and when said income shall mature, and deliver all such income, after deducting its reasonable charges to Bernard Neuburger so long as he, the said Bernard Neuburger shall be alive.
“(b) Upon the demise of the said Bernard Neuburger to pay all income derived from said trust fund, in equal shares, to the following persons; viz.: Josephine Neuburger, wife of the said Bernard Neuburger, Burton Neuburger, son of, and Maxine Sylvia Neuburger, daughter of the said Bernard Neuburger, for and during their respective natural lives; in the event of the prior death of either of the above named Burton or Maxine Sylvia Neuburger, leaving him or her surviving any issue, his or her children to take the parent’s share, share and share alike between them.
“(c) In the event of the death of either of the above named Burton Neuburger or Maxine Sylvia Neuburger his or her portion shall be paid to such person or persons as he, or she, shall by will direct; but dying intestate, such portion shall be paid to. the • children of the deceased parent, or if none survive, then to the surviving child of the party of the first part.
“(d) Upon the demise of Josephine Neuburger to pay all income derived from said Trust Fund in equal shares, to Burton Neuburger and Maxine Sylvia Neuburger, until such time as they shall have reached the age of thirty-five years, at which time this trust shall terminate and the principal fund be distributed in accordance with Clause £c’ above; but if any person then entitled to a distributive share shall be under legal disability to act, then and in that event that person or persons’ share or shares shall continue to be held under this Trust until such legal disability shall have been removed, either by attainment of majority of said existing beneficiary, or in any way provided for by the Laws of the State of Illinois. In the event of the death of both said Burton Neuburger and Maxine Sylvia Neuburger prior to the death of Josephine Neuburger without either leaving any issue, and without making other testamentary provision, then and in that event the whole income from said trust shall be paid in full to the said Josephine Neuburger and upon her death the whole of said estate shall be divided equally among the following persons or their survivors; to wit,
“Herbert Neuburger and Sarah Neuburger, children of Joseph B. Neuburger, brother of the said party of the first part and Joseph Neuburger, Alvera Neuburger and Ruth Neuburger, children of Charles Neuburger, brother of the said party of the first part or their survivors, in equal proportion per capita and not per stirpes.
“(e) It is further expressly provided that upon the death of the said Bernard Neuburger, Josephine Neuburger, Maxine Sylvia Neuburger, and Burton Neuburger, if division shall not have been made prior to such time, in accordance with clause ‘d’ as above set forth the said Trustee shall at once deliver all of the estate, real, personal or mixed in its possession, together with accrued profits if any there be to the then surviving issue of Burton Neuburger and Maxine Sylvia Neuburger, per stirpes and not per capita or to the legatees under the Last Will and Testament of said two children, and this trust shall terminate; but if any person then entitled to a distributive share shall be under legal disability to act, then and in that event this trust shall continue until such legal disability shall have been removed, either by attainment of majority of said then existing beneficiary, or in any way provided for by the Laws of the State of Illinois, conditioned and approved, however, that this estate shall not be held for a period longer than twenty-one years after the death of all the above named Bernard Neuburger, Josephine Neuburger, Burton Neuburger and Maxine Sylvia Neuburger.
“(f) It is further expressly Covenanted and Agreed by and between the parties hereto that it shall be competent for said Trustee by and with the advice of the beneficiary who for the time being shall be entitled to the proceeds, rents, issues and profits from said estate, to change, or modify the form of investment, to sell, dispose of or reinvest proceeds into real or personal property; and in the event that the said Trustee shall make such investment by and with the advice of such beneficiary, then said trustee shall not be liable for any error of judgment in making such investment; Provided however that in the event the advice and consent of the beneficiary becomes necessary for any reason and if because of legal disability such beneficiary or any one of them is incapable of giving his or her consent to the proposed investment, or unanimous consent of all beneficiaries cannot be obtained for any reason, then and in such event the judgment of any Judge of the Circuit Court of Cook County shall be accepted in lieu of the provision herein contained for the consent of beneficiaries for the making of the proposed investments.
“(g) It is further expressly conditioned and provided that upon the termination of the trust herein-above created, the said trustee shall divide between the parties entitled in the proportion that they may be entitled to the corpus of the estate in kind; but if a division in kind cannot be made without manifest injury to either person, then the trustee shall be at liberty to sell so much of the estate as may be necessary to make an equitable distribution among the beneficiaries then entitled to same in accordance with the provisions of this contract.”

It is further alleged that the complainant presented to the Bank an instrument which he believed contained all of the clauses and all of the stipulations contained in the instrument just set forth, which instrument so presented to the Bank was then duly signed by himself and by the Bank, by its trust officer, in full confidence and belief that it contained all of the provisions intended to be therein contained; that soon after the execution of the instrument, an opportunity presented itself to invest the whole of the trust fund in real estate situated in the City of Chicago, which was deemed advisable for investment purposes by complainant and upon investigation, also, by the Bank, but that upon careful investigation of the instrument of trust it was discovered that it made no provision for the investing of the funds by the Bank in real estate; that thereupon a further scrutiny was made of the instrument and the discovery was then made for the first time that the scrivener in drafting it had inadvertently left out the following words in clause “f ” to-wit: “into real or personal property,” after the words, “to sell, dispose of, or reinvest proceeds” and that likewise clause “d” was defective in that the following provision was entirely omitted:

“Upon the demise of Josephine Neuburger to pay all income derived from said Trust Fund in equal shares, to Burton Neuburger and Maxine Sylvia Neuburger, until such time as they shall have reached the age of Thirty-five years, at which time, this Trust shall terminate, and the principal fund be distributed in accordance with Clause *C’ above; but if any person then entitled to a distributive share shall be under legal disability to act, then and in that event, that person or persons’ share or shares shall continue to be held under this Trust until such legal disability shall have been removed, either by attainment of majority of said existing beneficiary, or in any way provided for by the Laws of the State of Illinois.”

It is further alleged that he, the complainant, was ignorant of the said mistake and omissions, at the time of the execution of the trust agreement; that from the time of its execution until the time when he sought to have an investment made in real estate he rested firmly in the belief that the trust agreement contained all the provisions that he had instructed the scrivener to embody therein; that by reason of the mistake, the trust agreement is deficient in that no provision is made for the contingency in the event that both Bernard Neuburger and Josephine E. Neuburger die prior to the death of Burton Neuburger or Maxine Sylvia Neuburger; that Burton Neuburger and Maxine Sylvia Neuburger are minors, both unmarried, and that neither has any children; that, because of the omissions, the Bank refuses to change the form of investment from personal property into real property, on the ground that it is not empowered to do so; that great confusion must necessarily arise as to the disposition of the property in the event of the death of Bernard and Josephine Neuburger prior to the death of Burton and Maxine Sylvia Neuburger, unless the trust agreement be corrected so that it shall contain all of the provisions which were inadvertently omitted.

The prayer for relief is that the instrument be corrected so as to include the above-mentioned words in clause “d” and clause “f.”

The defendants to the bill are the Bank, Josephine Neuburger, Burton Neuburger, Maxine Sylvia Neuburger, Herbert and Sarah Neuburger, children of Joseph B. Neuburger, Advera Neuburger and Ruth Neuburger, children of Charles Neuburger.

The Bank filed an answer which sets up, substantially, the following: that there was a conference between the complainant and the trust officer of the Bank regarding the creation of the trust, and it was agreed that the complainant was to cause an instrument to be drafted covering the disposition of the principal and income of the amount to be deposited; that the complainant was to have the sole right to determine the manner of the distribution of the principal and income and to determine, all the other provisions to be contained in the agreement; that the defendant had nothing to do with drafting the instrument; that the alleged words and clause- were not omitted through an inadvertence or mistake on its part, nor did it sign the instrument in the belief that it contained the alleged omitted words and clause; that it may be true that the complainant directed the drafting of an instrument containing the alleged omitted clause and words and that they were omitted through mistake of the scrivener; and that complainant was ignorant of the alleged omissions at the time he executed the instrument and rested in the belief that they were embodied in the agreement from the time he signed it until he asked the Bank to change the form of the trust fund from personalty to realty, but the defendant is an utter stranger to all such matters.

Josephine Neuburger, wife of the complainant, filed an answer consenting to the relief prayed for; Joseph Neuburger, a nephew, was defaulted; and all the other beneficiaries, including the complainant’s two children, being all minors, filed an answer by their guardian ad litem.

The cause was referred to Master in Chancery Pollock, before whom hearings were had, and evidence taken.

The complainant, Bernard Neuburger, testified that he was married to Josephine Neuburger and had two children, Burton, aged nine and a half, and Maxine, aged six years; that in May, 1918, he had a talk with his attorney in regard to an investment for the protection of his family, and was advised to create a trust estate; that he directed his attorney to draft an instrument to the following effect: $60,000 to be deposited with the Bank, the income of which should be paid to him, the complainant, for his life, and after his death to be paid in equal shares to his wife and two children, and after the death of his wife, in equal shares to said children or the survivor, the principal of the fund to be paid to the children when they reached the age of 21; that after such an instrument was drawn, he looked it over, and directed his attorney to change the age of distribution of the principal to his children from twenty-one to thirty-five, and to include a power of testamentary disposition of their respective shares of the principal in the event of the death of either prior to thirty-five; that the instrument was redrawn with these changes and submitted to the trust officer of the Bank, who looked it over and stated that if it was satisfactory to him it was satisfactory to the Bank, but requested him to omit a clause relating to the compensation of the trustee; that complainant’s attorney had the instrument rewritten and it was executed by complainant and the Bank’s trust officer without being read over by either; that the first instrument presented to the Bank’s trust officer contained the alleged omitted clause, and, also, the words “into real and personal property” after the words “to sell, dispose of, or reinvest proceeds” in clause “f”; that the instrument as executed is not the instrument he intended to execute; that he first learned of the omissions when he wanted the trustee to invest the fund in real estate and was informed that the instrument contained no such power to the trustee; that he then read it over and discovered that it contained no provision for distribution of the principal to his children, which he had directed his attorney to include, and which he thought was included; that he did not read the instrument before he executed it, and no one read it to him.

A witness, Katherine Kelly, a stenographer for complainant’s attorney, testified that she wrote three or four instruments in regard to the $60,000' trust fund; that the first was in June, 1918, and contained a provision for the distribution of the principal to the complainant’s two children when they reached the age of twenty-one years, and a provision authorizing the Bank as trustee to invest the funds in real or personal property; that in July, 1918, she wrote another, dictated to her by complainant’s attorney, which provided that the fund was not to be divided until the children were thirty-five years old, and which provided that the Bank could invest the funds in real or personal property; that it, also, contained a provision in regard to the trustee’s compensation; that her employer, directed her to rewrite it and omit the compensation clause; that she did so, copying the second draft, and omitting only the compensation clause. She further testified that she wrote the instrument that was executed but received no instruction to leave out the clause here in question, or the words “into real and personal property.”

There were offered in evidence three documents, all written by her; the first, which fixed the age at twenty-one as the time when the trust should terminate, and the second, which fixed the age at thirty-five years, both of which contained that part of clause “d” here in question, and both of which contained a provision that the trust estate might be reinvested “in real or personal property,” and the third, which is the document it is here sought to change and which does not contain that part of clause “d” above referred to, nor the provision that the trust estate might be reinvested in real or personal property. The first two documents contained a provision for the trustee’s fees or compensation, but the third, the one here in question, contained no provision on that subject.

The master made a report and therein found that the complainant had directed the drafting of an instrument containing the clause and words in question, and that they were omitted through mistake of the scrivener; that the complainant was ignorant of the omissions at the time he executed the instrument, and from that time until he sought to have the trustee, the Bank, invest the trust fund in real estate, he understood and believed that the agreement contained all the provisions he had directed to be embodied therein, including the alleged omitted words and clause; that the trust agreement was executed by the parties without the insertion of the matter in question through a mutual mistake, and recommended that it be corrected.

Objections were filed to the master’s report and overruled, and upon the filing of the master’s report they were ordered to stand as exceptions. ' The chancellor overruled the exceptions, approved the master’s report, and entered a decree that the trust agreement of August 14, 1918, be amended and corrected so that it should include, therein, as an addition to clause “d,” the following words:

“Upon the demise of Josephine Neuburger to pay all income derived from said Trust fund in equal shares to Burton Neuburger and Maxine Sylvia Neuburger, until such time as they shall have reached the age of thirty-five years, at which time this trust shall terminate and the principal fund be distributed in accordance with Clause ‘c’ above; but if any person then entitled to a distributive share shall be under legal disability to act, then and in that event, that person or persons’ share or shares shall continue to be held under this Trust until such legal disability shall have been removed either by attainment of majority of said existing beneficiary, or in any way provided for by the laws of the State of Illinois”; and that clause “f” be amended and corrected so as to include after the words, “to sell and dispose of, or reinvest proceeds,” the words, “into real and personal property” and that the trust agreement should thereafter be read and construed with the same force and effect as if it had originally contained the clause and words above set forth.

One of the principal provinces of equity jurisdiction is the correction of mistakes. In Pool v. Docker, 92 Ill. 501, Mr. Justice Scott said: “Correction of mistakes in any transaction is a principal head of equity jurisdiction.” Wilson v. Byers, 77 Ill. 76. In Way v. Roth, 159 Ill. 162, the court said: “Equity will correct mistakes in deeds when clearly and satisfactorily proved and the rights of innocent purchasers have not intervened to make it inequitable to do so.” Citing Broadwell v. Broadwell, 6 Ill. (1 Gilm.) 599; Lindsay v. Davenport, 18 Ill. 375; Hunter v. Bilyeu, 30 Ill. 228; Kuchenbeiser v. Beckert, 41 Ill. 172; Mills v. Lockwood, 42 Ill. 111; Clearwater v. Kimler, 43 Ill. 272; Palmer v. Converse, 60 Ill. 313.

The principle involved is stated in Pomeroy’s Equity Jurisprudence (2nd Ed.), vol. 5, sec. 2096, as follows: “Reformation is appropriate in cases of mutual mistake, — that is, when an agreement has been made or a transaction has been entered into or determined upon, as intended by all the parties interested, but in reducing such agreement or transaction to writing, through a mistake common to both parties, the written instrument fails to express the real agreement or transaction. In such a case the instrument may be corrected so that it shall truly represent the agreement or transaction mutually made or determined upon according to the real purpose and intention of the parties.” In a note to that reference many cases are cited. Wigmore on Evidence (1st Ed.), vol. 4, section 2417.

We think that the evidence clearly shows that the omissions as they pertain to clause “d” and clause “f ” were due to a mutual mistake. The testimony of the complainant, and that of the stenographer, tends strongly to prove that the trust agreement was intended and assumed to contain the omitted words. The stenographer, who drew the preliminary drafts, and also the instrument as finally executed, testified that the first instrument provided for a distribution of the principal to the complainant’s two children when they reached the age of twenty-one years, and, also, provided that the Bank should have authority as trustee to invest the funds in real or personal property. Her testimony also shows that when she wrote another draft in July, 1918, which was dictated to her by the complainant’s attorney, the only change made was that which provided that the fund was not to be divided until the children were thirty-five years old, and that that draft provided, as did the first, that the Bank could invest the funds in real or personal property. And her testimony shows further that as the second draft contained the provision in regard to the trustee’s compensation, she was directed to rewrite it and omit that particular clause; that she did so, copying the second draft and omitting the compensation clause; that when she wrote the instrument in question, the one that was actually executed, she received no instruction to leave out the words in clause “d,” or the words “into real and personal property” in clause “f.” Then, too, the documents offered in evidence confirm her testimony. As regards the intention to give the trustee authority to reinvest the trust funds in real estate, the words in clause “e,” “The said Trustee shall at once deliver all of the estate, real, personal or mixed,” are significant. That, not only the complainant was mistaken as to the actual contents of the instrument that was ultimately executed, but the Bank was likewise, is evidenced by the testimony of the trust officer of the Bank that he read the draft of the trust agreement which contained a clause regarding the trustee’s compensation — which document the evidence shows contained all the matters here in question — but that he had no recollection of reading the instrument which was finally brought in and which was executed, and, therefore, did not know whether the latter actually contained the words in question or not.

It seems quite obvious, therefore, that the evidence sufficiently shows that there was a mutual mistake, and that the omissions were the result of mutual inadvertence.

The question then arises whether, in this situation, with the parties as they are, the complainant is entitled to have the instrument changed to accord with the understanding of the parties. It is urged for the Bank that the grandchildren of the complainant, that is to say, the children of Burton Neuburger and Maxine Sylvia Neuburger, are necessary parties to a proceeding wherein it is sought to correct the trust agreement ; that as no child or children have been born to either Burton Neuburger or Maxine Sylvia Neuburger, the interests of unborn grandchildren of the complainant are not represented or protected in this suit; and that there is no person or persons in esse in the same class as unborn grandchildren and having like rights and interests who can be brought before the court to represent them, and therefore these proceedings are not maintainable.

According to the terms of the trust agreement, as it was physically executed, Burton and Maxine Sylvia Neuburger, the children of the complainant, could never receive the principal of the trust fund; they could receive only a portion of the income of that fund; and the principal would go to the children of Burton Neuburger and Maxine Sylvia Neuburger, and in the event that they had no children and died intestate, then the principal would go to certain nephews of the complainant. But according to the terms of the trust agreement, when reformed according to the decree of the court and the actual understanding of the parties, the principal of the trust fund, after the death of the complainant and his wife, would be subject to testamentary disposition by Burton Neuburger and Maxine Sylvia Neuburger. It will be seen, therefore, that the nephews and nieces, who are parties to this proceeding and who would take the fund absolutely if no children were born and Burton Neuburger and Maxine Sylvia Neuburger died intestate, are interested in such a way that even the rights of the children of Burton Neuburger and Maxine Sylvia Neuburger must, as a consequence, be taken into consideration and passed upon by the court.

In Gavin v. Curtin, 171 Ill. 640, the court said: “The possible parties, not in esse, are therefore represented by the parties before the court, and if they have come into being will be bound and concluded by the decree.” It may, also, be said here, that the complainant himself, who created the fund, and, as it is stated in the preamble of the instrument of the trust, to assure “to other persons to whom he is bound in love and affection to provide for their maintenance and support,” represents in a very real sense all the cestui que trustent not in esse. Added security, also, lies in the existence of the trustee and the fact that it is a party to the suit. Scott v. Scott, 307 Ill. 586. As the court said in American Bible Society v. Price, 115 Ill. 644: “Title is in the trustees, and the duty is imposed upon them to protect and preserve this interest to whomsoever shall be ultimately entitled to it. They are parties to the suit, and they stand for and represent, in this litigation, the ownership ultimately entitled to this fund, and such ownership is bound by their representation. ” And that language was approved by the court in Temple v. Scott, 143 Ill. 290. In the latter case where the court was considering the doctrine of representation considered as an exception to the general rule, which requires all persons in interest to be made parties, it was said:

“On the other hand, if the general rule requires a person to be present merely as the owner and protector of a certain interest, then the proceeding may take place with equal prospect of justice if that interest receives an effective protection from others. It is the interest which the court is considering and the owner merely as the guardian of the interest; if then some other persons are present who with reference to that interest are equally certain to bring forward the entire merits of the question, the object is satisfied for which the presence of the actual owner would be required, and the court may, without putting any right in jeopardy, take its usual course and make a complete decree; if persons in being are before the court who have the same interests, and are equally certain to bring forward the entire merits of the "question, and thus give such interests effective protection, the dictates both of convenience and justice require that there shall be a complete decree. ’ ’ Citing Faulkner v. Davis, 18 Gratt. (Va.) 651; Bofil v. Fisher, 3 Rich. Eq. (S. C.) 1; Mead v. Mitchell, 17 N. Y. 210; De Leon v. Barrett, 22 S. C. 412; McArthur v. Scott, 113 U. S. 340; Mead v. Mitchell, 5 Abb. Prac. (N. Y.) 92; Dodge v. Cole, 97 Ill. 338.

Monarque v. Monarque, 80 N. Y. 320; Watson v. Watson, 56 N. C. 400, and Breit v. Yeaton, 101 Ill. 242, are cited in opposition. In the Monarque case, the instrument considered was a will and its contents were not disputed. One of the questions in the case— which was a partition suit — was what interpretation should be made of the words of the will. A testator had died and left certain real estate to his wife for life and after her death to his four daughters for life, the remainder to their respective children. The opinion recites that one of the daughters had already brought a suit for a construction of the will; that the adult defendants did not answer, and that a general answer was made by the guardian ad litem of the minors; that the case was submitted.without evidence; that no objection was made to the jurisdiction of the court and that it was practically a judgment for the plaintiff by consent; that “There was no trust or other element to justify invoking the jurisdiction of the court for that purpose.” In the second suit, that is the partition suit, in which the former judgment in the suit to construe the will had to be considered, the court held that as in its opinion grandchildren, if subsequently born, would inherit, the former judgment could not bind them. A close analysis of that case shows, however, that the suit to construe the will — the first case — resulted in a judgment by consent, and as the court said, in the second case, did not involve a trust. We do not find, therefore, that that decision affords much help in the matter.

In the Watson case, the plaintiff asked the court to authorize the sale of certain real estate and the investment of the proceeds in more productive property. As in the Monarque case, no question arose concerning what words constituted the will, the question being what might be done under the will as it was.

A close analysis of the Breit case leads us to the conclusion that there is, in reality, nothing in that case counter to the holding of the court in the later case of Hale v. Hale, 146 Ill. 227.

In the latter case, where the subject of necessary parties was being considered, the court said: “But among the exceptions is one growing out of convenience or necessity in the administration of justice, which has given rise to what is known as the doctrine of representation. Thus where it appears that a particular party, though not before the court in person, is so far represented by others that his interest received actual and official protection, the decree may be held to be' binding upon him.”

It must be borne in mind that the rights of all the beneficiaries of the trust became fixed and inviolable the instant the trust agreement was consummated; and that these proceedings are not to change the actual agreement arrived at, but to have that agreement exist in the very words it was understood to be expressed in; to establish and perpetuate the actual contents of the agreement itself.

In our judgment, therefore, as the evidence clearly shows that the alleged omissions were made through inadvertence and mutual mistake; that the rights of the unborn grandchildren are remote and amply represented by the parties before the court, that is, by the complainant, the trustee, and the nephews and nieces, and as the objection that the grandchildren are not yet born and so not parties, cannot have weight, as otherwise the delay in correcting the trust agreement would have to go on until after the complainant’s death, we are of the opinion that the decree of the chancellor must be affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Lloyd J. Smith, Receiver, Appellee, v. Sol Rubin and Sadie Rubin, Appellants.
    Gen. No. 30,111.
    1. Receivers — prerequisite to right to maintain action. It is a prerequisite to the right of a receiver to maintain an action, that he have legal title to the thing sued for.
    2. Receivers — title to right of action on contract executed as receiver. Where the contract upon which the duly appointed receiver of a building brought suit against the defendants, 'husband and wife, for use and occupation, came into being through the mutual acts qf such receiver, qua receiver, and the defendant husband, such receiver had legal title to the right of action on such contract.
    3. Receivers — special order as prerequisite to right to sue on contract executed hy receiver as suoh. Where the receiver of a building had legal title to the right of action upon a contract under which he sought to recover from defendants for the use and,' occupation of an apartment in such building, it was not necessary that such receiver, before -beginning suit, obtain special authority therefor 'by an order of the appointing court.
    4. Landlord and tenant — estoppel <of tenant paying rent to receiver as- landlord to deny right to sue for use and occupation. Defendants in an action for use and occupation brought by the receiver of the building, who have paid rent to such receiver for five months prior to the period for which payment is sought in such action, will not be heard to deny the authority of the receiver as landlord on the ground that he brought suit without procuring special authority from the court of his appointment.
    5. Husband and wife — charge for use and occupation of premises occupied as dwelling as joint and several liability. A husband and wife are jointly and severally liable upon a charge for use and occupation of premises used for domestic living, notwithstanding the agreement under which they took possession of such premises was made 'between the husband and the landlord, without the intervention of the wife.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. Albert B, Gedbge, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Clark & Clark, for appellants; Russell S. Clark, of counsel.
    William Friedman, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Lloyd J. Smith, receiver, brought suit in the municipal court, in a fourth-class case, against the defendants, Sol Bubin and Sadie Buhin, who were husband and wife, for six months ’ use and occupation of certain premises, and upon a trial before the court without a jury obtained a judgment in the sum of $660. This appeal is from that judgment.

It is contended that there was no evidence that the receiver was authorized or directed to bring this suit; that the evidence showed an express contract made with the husband alone for $110 a month; and that certain errors were made in ruling upon questions of pleading.

The evidence showed that on May 29,1923, by order of the court, the plaintiff was appointed receiver, “with the usual powers of a receiver in chancery, for a certain building known as the Riviera Apartment Building,” and that he took possession of the premises about May 30, 1923. The receiver testified that soon after he took possession of the building he made oral arrangements with Sol Rubin to rent the apartment in question at $110 per month; that Sol Rubin agreed to pay $110 a month for the apartment as long as he stayed there; that he paid rent for June, July, August, September and October, 1923, at $110 a month; that that included telephone, light, heat, gas service and the laundry bill; that the premises were occupied by Sol Rubin and Sadie Rubin and their three children; that nothing was paid for the months of November and December, 1923, and January, February, March and April, 1924; that he requested payment of the rent from month to month, and Sol Rubin promised time and again to pay it.

As to the question whether it was necessary for the evidence to show, affirmatively, express power in the plaintiff, as receiver, to begin this suit: It is generally the law that one who begins suit must have legal title or right to the thing sued for; so that where a suit is begun by a receiver, his title must be of that quality. Murtey v. Allen, 71 Vt. 377. The contract upon which suit is brought, whether considered as express or implied, came into being as the result of the mutual acts of the receiver, qua receiver, and the defendant Sol Rubin. In this situation, it is only reasonable to consider the receiver, at least for purposes of obtaining the rent, or the charge for use and occupation, as having legal title to that for which he brought suit; and such being the case, it follows that it was not necessary for the receiver, before beginning suit, to obtain special authority or an express order of the court. Further, as it was admitted by the defendants that the premises were rented and occupied by them, and as the evidence showed that rent was actually paid to the receiver for five months, and that the balance of what had accrued for the succeeding six months was not only admitted to be due but promised, it is not now the right or privilege of the defendants to deny the authority of the receiver as their landlord.

As to the contention that the evidence disclosed only an express, oral contract between the receiver and the defendant, Sol Rubin: There was considerable discussion between counsel and the court on that subject at the trial, and the trial judge finally ruled, after permitting the statement of claim to be amended, that the evidence showed the plaintiff had proved that the defendants were liable jointly for use and occupation. It is the contention for the defendants that there is no evidence of liability on the part of the wife. The evidence does not show that the wife had anything to do with renting the premises. What dealings took place were entirely between the plaintiff and her husband. But it is urged for the receiver that a place to live, the use and occupation of the premises, was a household necessity, and, being such, both husband and wife are liable for the rent, even though the oral arrangements made, as testified to by the receiver, were wholly between the receiver and Sol Rubin.

The statute on husband and wife, section 15, chapter 68 (Cahill’s St. 1925), provides that: “The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

A place to live being a necessity, it is the law that rent or charges for use and occupation of premises used for domestic living are necessaries and chargeable, under the statute, upon the property of both husband and wife, and that the liability of each is joint and several. Applying that principle to the facts in the instant case, it follows that it makes no difference whether the contract of leasing was made between the husband and the receiver without the intervention of the wife, or otherwise; that as the rent was a necessary, they were both liable jointly and severally therefor. Illingworth v. Burley, 33 Ill. App. 394; Harrison v. Hill, 37 Ill. App. 30; Porter v. Duzeski, 182 Ill. App. 6; Barnett v. Marks, 71 Ill. App. 673.

Some matters are discussed pertaining to the pleadings in the case, but, as this was a suit of the fourth class and there is no question but that the defendants were sufficiently informed as to what the suit was about, and as the evidence sufficiently established the right of the plaintiff to the rent, in our judgment they are immaterial.

The judgment, therefore, will be affirmed.

Affirmed.

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


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois ex rel. William E. Rexses, Appellee, v. Anton J. Cermak, President of the County Board of Cook County et al., Appellants.
    Gen. No. 30,340.
    1, Sheriffs and constables — duty to patrol highways to maintain peace and prevent crime. Where the facilities for transportation afforded by modern conditions result in the recurrent assemblage of large numbers of people in remote sections of the county, entailing an increased prevalence of crime and disorder along the county highways, it becomes the duty of the sheriff, having knowledge of such conditions, to exercise such power as he may possess to suppress such crime and disorder, which may include the assignment of deputies in motor vehicles to patrol such highways.
    2. Sheriffs and constables — necessity for appointment of deputies assigned to highway patrol duty. Any question as to the necessity for the appointment of a sufficient number of deputies to permit the sheriff to patrol the county highways for the suppression of crime and disorder thereon, is exclusively for the determination of the circuit court in the discharge of its constitutional function relative to fixing the number of such deputies.
    3. Sheriffs and constables — duty of county board to provide for compensation of deputies authorised by rule of court. Where the circuit court by rule authorized the sheriff to appoint three “sergeant deputy sheriffs” requested by the sheriff “to have charge of officers in patrolling highways, apprehending criminals and maintaining peace on the county roads," it became the duty of the county board to make the necessary appropriation for their compensation.
    4. Sheriffs and constables — time for appointment of deputies. Under the sheriffs’ statute, Cahill’s St. ch. 125, 7, the Sheriff may appoint deputies to the number fixed by rule of court at any time during the fiscal year for which they are allowed, without reference to whether the county board has provided for their, compensation.
    5. Counties — veto• of appropriation for salary of deputy sheriff as relieving board of duty to provide compensation. The fact that the president of the county board vetoed an appropriation for the salary of a deputy sheriff appointed pursuant to authority conferred by rule of court did not relieve the county board from complying with its constitutional duty to provide compensation for such duty, although the veto was given, and by inaction of the board upheld, on the ground that the duty to which such deputy was assigned did not come within the function of the sheriff’s office.
    6. Mandamus — performance of duty of county board to provide compensation for authorised deputy sheriff. Mandamus will lie to compel the county board to determine and provide for the compensation of a deputy sheriff appointed pursuant to a rule of the circuit court, where the failure of the board to appropriate for that purpose resulted from its inaction following the veto of an appropriation by the president of the board, although such veto was interposed upon the ground that the appointment of such deputy was unauthorized.

      7. Mandamus — determination of amount of compensation directed to be paid to deputy sheriff by county board. It is beyond the power of the court, by an order of mandamus, directed to the county board, to fix the compensation to be paid by such board to a deputy sheriff, this being wholly a matter for the determination of that body.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Jesse Hoedom, Judge, presiding. Heard in the second division of this court for the first district at the December term, 1924.
    Reversed and remanded with directions.
    Opinion filed December 29, 1925.
    Rehearing denied January 13, 1926.
    William F. Struckmann, Henry A. Berger and Hayden N. Bell, for appellants.
    George F. Barrett, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from an order of mandamus entered November 5, 1924, requiring the members of the Board of Commissioners of Cook County to appropriate the sum of $100, at a regular meeting to be held during the first quarter of the fiscal year commencing on the first Monday of December, 1924, in favor of William E. Bexses, the petitioner and relator, and requiring the necessary formalities by the proper county officers for the issuance and payment to the relator of a warrant for that sum.

The main facts as set forth in the petition on which the relator’s claim is based are in substance as follows:

In the application of the sheriff of Cook county to the circuit court for assignment of necessary help for his office for the fiscal year commencing December 1, 1923, he asked for deputies in addition to those allowed bfm for the previous fiscal year, “in order that the county highways in Cook County may be properly policed and life and property protected.” On January 31, 1924, pursuant to its power given by section 9 of article X of the State Constitution, the circuit court entered a rule fixing the number of the sheriff’s deputies, which continued the force of the previous year, including three “sergeant highway deputy sheriffs” requested by the sheriff “to have charge of officers in patrolling highways, apprehending criminals and maintaining peace on the county roads.” On notice of the rule the board, on February 29, 1924, passed the annual appropriation bill for that fiscal year, which provided a salary for the several deputies allotted, including $200'per month for said sergeant highway deputies. On March 3, 1924, the president of the county board returned said bill with his veto of the item pertaining to the three sergeant deputies, on the ground that their duties are not a part of the sheriff’s duties. The board failed to pass the bill over his veto. Later, in August, 1924, the relator was appointed as one of said sergeants, and, after serving from September 1 to September 15, inclusive, of that year, he made a demand on the proper officers of the county for payment of $100 as compensation for his service which demand was refused.

Defendants filed an answer — more, however, in the nature of a demurrer — admitting these facts and alleging in substance that the duties of the relator as such highway deputy sheriff are not functions and duties of the sheriff’s office but merely “police duties,” and that the allotment of deputies to perform such duties was in violation of the provisions of sections 9 and 12 of article X of the Constitution, and was without precedent prior to the previous fiscal year, when he was allowed such help on the representation that advantage had been taken of the extension of the vast system of parks and paved roads through the county, to build adjacent thereto road houses and dens of vice where the vicious elements of society congregated, and that owing to resultant and frequent hold-ups, burglaries, thefts and attacks upon women, citizens were making vigorous demands on him for protection.

A demurrer to the answer was sustained, and, standing by their answer, defendants took an appeal direct to the Supreme Court, which, holding that there was no constitutional or other question involved that gave that court jurisdiction thereof, transferred the cause to this court, saying: “The question presented for decision is whether or not the duties of appellee as alleged in the pleadings are properly a part of the sheriff’s duties. If so, the answer was demurrable; if not so, the answer was legally sufficient as a defense to the petition for mandamus.” (People v. Cermak, 317 Ill. 590.)

The question, therefore, is brought within narrow limits. In determining it we need not discuss the common-law powers and duties inherent in the office of sheriff, for they are regulated by the statute on sheriffs (chapter 125, Rev. St.) which, with respect to his power and duties, is largely declaratory of the common law. Section 17 thereof provides: “Each sheriff shall be conservator of the peace in his county, and shall keep the same, suppress riots, routs, affrays, fighting, breaches of the peace, and prevent crime; and may arrest offenders on view * * [Cahill’s St. ch. 125, 1[17.]

That such duties are in their very nature police duties is not open to question. (Scougale v. Sweet, 124 Mich. 311; State v. Reichman, 135 Tenn. 653; South v. State of Maryland, 59 U. S. 401.) Discussing the duties of a sheriff in the Tennessee, case the court said: “His duties are not merely to apprehend those who have committed offenses but to prevent such offenses. * * * The duties imposed cannot be performed without some degree of activity and diligence to inform himself of conditions in his county.” While the court there did not attempt to decide that it is his duty to patrol the county, as the streets of the city are patrolled by the police, — a question not before that court, —it did hold that it is the duty of the sheriff and his deputies to keep their eyes open for evidence of public offenses, and referred to the fact that although his authority as conservator of the peace extends over the entire county, there is not ordinarily the same reason for vigilance on his part in a city as outside of it, because one of the chief reasons for the incorporation of cities is to provide, in their more densely populated sections, better police protection than in the nature of things the sheriff’s office can afford.

But while conditions in the past may not have required, or afforded precedents for, patrolling the highways of a county to maintain peace and prevent crime, as is generally required in the denser population of cities, it does not follow that under changed conditions incident to modern social and economic developments such a necessity may not arise; and if it does, it can hardly be questioned that the police function of patrolling would attach to the duties of the sheriff. It is, after all, a mere method of performing police duties, and we see no reason why the sheriff may not adopt it, where it is most practicable to enable him to perform his duties. Indeed, the conditions described in the petition suggest that in certain portions of the county the necessity for police patrol is just as imperative as in cities under like conditions. By reason of the modern facilities afforded by automobiles and paved roads, large numbers are able to congregate in remote places of the county, where the necessity of suppressing disorder, and to prevent more serious violations of the law, demand the presence and continued vigilance of the sheriff’s deputies. This is best accomplished, it appears, by detailing deputies along the highways on motorcycles, or in automobiles. Shall it be said, then, that the sheriff may not employ such means of police protection as are commensurate with the necessities of such a situation, and assign deputies to patrol the highways with motorcycles or in the most practicable way to enable him to perform his duties under such circumstances ?

That the necessity for patrolling county highways has arisen only recently, as an incident to modem development and changed conditions, presents no valid argument why such method may not be employed in country districts where needed. The police power “is not circumscribed by precedents arising out of past conditions, but is elastic and capable of expansion in order to keep pace with human progress. ’ ’ City of Aurora v. Burns, 319 Ill. 84. With his knowledge of the prevalence of crime and disorder along county highways in consequence of these changes' it is unquestionably the duty of the sheriff as conservator of the peace to exercise such power as he possesses to suppress them, and if patrolling highways is the most practicable or desirable method of exercising it we know of no legal restriction upon his adoption of it, or of any limitation on the power of the circuit court to allow a sufficient number of deputies for such service. The necessity therefor is wholly for that court’s determination in fixing their number, and if deputies are allowed in contemplation of such necessity it becomes the duty of the county board to„ make the necessary appropriation.

By express authority of the sheriff’s statute (Sec. 7) [Cahill’s St. ch. 125, [f 7] he may appoint deputies not exceeding the number allowed by the rule of said court, and it is contemplated that he may appoint them any time during the fiscal year for which they are allowed, whether before the, board acts, or, as in the instant case, after it fails to act. For if he were compelled to defer their appointment until their compensation was fixed by the county board, which might take the ninety days allowed by the statute for making the annual appropriation, the wheels of government might stop in the interim for want of an appropriation. Manifestly the mandatory provision of the constitution does not contemplate the possibility of such a situation.

The relator, therefore, having been duly appointed to the position of deputy sheriff as authorized by the rule of said court, in pursuance of its power under the constitution, it became the duty of the board of commissioners to fix his compensation. The board did so in the original appropriation bill but failed to do so after the same was vetoed. While under the statute (Cahill’s St. ch. 34, 66 [3]) the president of the county board has authority to veto resolutions and motions whereby any money shall be appropriated, and may thereby question the propriety or necessity of expenditures, or the amount of salaries, appropriated for the assistants of county officers, we apprehend that the exercise of such power cannot be construed to relieve the county board from complying with its mandatory duty under the constitution to fix some compensation for the number of assistants authorized by rule of the circuit court. A reasonable construction of that statute will harmonize with such constitutional provisions which cannot be thwarted. While the president of the board sought to justify his veto on the theory that the patrolling of county highways was a police duty which did not come within the function of the sheriff’s office, yet, as before stated, the determination of that question was necessarily for the circuit court. We may easily distinguish the right to veto from improper reasons for exercising it.

But while as a result of the veto there was no appropriation made to cover compensation for relator, and while the board may properly be mandamused to determine the same, the court has no power to fix the amount of his compensation as it undertook to do. That is wholly a matter for the county board to determine, which will doubtless fix compensation that will be reasonable.

The order, therefore, must be reversed with directions for its modification "by eliminating therefrom the provision for a specific sum, and by requiring the appropriation to be made at a regular meeting to be held during the first quarter of the present fiscal year, which began on the first Monday of December, 1925.

Reversed and remanded with directions.

Gtridley and Fitch, JJ,, concur.


author: Mr. Justice Barry

text:
    William P. Launtz, Appellant, v. Kinloch Telephone Company, Appellee.
    1. Landlord and tenant — construction of provision as to rent in renewal agreement. Where the lessor of premises to a telephone company covenanted in the lease to furnish the necessary electric current to charge the lessee’s electric machines and fans, and further agreed to a renewal of the lease for a second period of five years at the same rental “except on the condition the power consumption is 25 per cent more than at present, which is thirty-three hundred ’phones (that being the number assumed to be in operation on the date of the lease), then, in that event, the increased rental for the said five additional years shall not exceed that added cost of power at the current rate charged public con* sumers for a like quantity of consumption,” the question whether a higher rent would be chargeable during the second term would depend entirely upon the number of ’phones in use at the expiration of the first term, without regard to the amount of current actually used or the cost of producing the same.
    2. Landlord and tenant — construction of ambiguous• provisions of lease relating to renewals. In construing the provisions of a lease relating to renewals, where there is any ambiguity, the tenant is favored, and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do so. and also upon the principle that every man’s grant is to be taken most strongly against himself.

      3. Evidence — admissibility of declaration by agent in absence of proof of authority to make it, or of duties involving acquisition of information as to subject matter. Where in an action for rent the right to recover depended upon the number of telephones in use by the lessee, a telephone company, upon the leased premises, testimony of declarations by wire chiefs in the lessee’s employ as to the number of such telephones in use thereon on certain dates was inadmissible, in the absence of proof of authority by the alleged declarants to make such statements, or that it was any part of their duty to know or keep a record as to the number of telephones in use.
    4. Landlord and tenant — sufficiency of evidence to- show increased use of electric current by lessee warranting recovery of additional rental as stipulated in renewal agreement. Where under an agreement for the renewal of a lease to a telephone company the payment of an increased rental was contingent upon the number of telephones in use upon the premises at the termination of the initial lease, testimony as to the number of instruments in use thereon three and four years after that date was not material to the issue and wholly insufficient to show the happening of the contingency mentioned.
    5. Harmless and prejudicial error — correct decision reached by erroneous processes. The Appellate Court will not reverse a judgment because of erroneous processes in reaching it, when, if it had been the other way, a reversal on appeal would have ensued.
    Appeal by plaintiff from the City Court of East St. Louis; the Hon. William P. Borders, Judge, presiding. Heard in this court at the March term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 5, 1925.
    William P. Launtz, for appellant.
    Kramer, Kramer & Campbell, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

For ten years prior to August, 1913, appellee maintained its East St. Louis Exchange and offices in a number of rooms rented from appellant. The parties entered into a new lease for the same premises for a period of five years from August 1,1913, at a monthly rental of $222.50. Appellant agreed, inter alia, to light the premises, daily, with electricity from 7 o ’clock a. m. until midnight and for the remainder of the night with gas or electricity. He also agreed to furnish the necessary gas or electric current to charge appellee’s electric machines and fans. The provision of the lease which is the basis of this suit is as follows:

“It is further agreed that at the expiration of said five years, lessee is to have the privilege of five years more at the same rental as hereinbefore specified, except on the condition the power consumption is 25 per cent more than at present, which is thirty-three hundred ’phones (that being the number assumed to be in operation August 1,1913). Then, in that event, the increased rental for the said five additional years shall not exceed that added cost of power at the current rate charged public consumers for a like quantity of consumption.”

Appellant occupied the premises and paid the stipulated rent until August, 1918. In the meantime it gave appellant notice that it would keep the premises for another five years. Nothing was said about the rent until appellee tendered $222.50 for the first month of the additional term when appellant made the claim that under the terms of the lease he was entitled to an increase in the monthly rental of $111.25 or $333.75 per month. They were unable to settle their differences in that regard and finally agreed that appellee should pay the $222.50 per month, about which there was no dispute, without prejudice to the right of either until an adjustment could be had. Under that arrangement appellee occupied the premises and paid $222.50 per month until March 1, 1923, when it sold its business to another company. Appellant brought this suit to recover $111.25 per month from August 1, 1918, to March 1,1923, and the trial resulted in a verdict and judgment in favor of appellee.

The solution of the controversy hinges upon the meaning of the provision for an increased rental above quoted. Appellee contends that the parties expressly agreed that the rent should continue at $222.50 per month unless the number of ’phones in use at the beginning of the second five-year term had increased more than 25 per cent of the number in use at the date of the lease. In other words that the “power consumption” referred to was to be measured by the number of ’phones in use in August, 1918, without regard to the amount of electric current actually being consumed at that time or the expense of producing the same. It is first insisted by appellant that if there was an increase of more than 25 per cent in the cost of furnishing the same amount of current the rent was to be increased accordingly, even though there was no increase in the number of ’phones in operation.

After arguing along that line at some length appellant then says that he most earnestly insists that the true construction of this provision of the lease is that if the power consumption is 25 per cent in excess of what it was under the lease covering the period from 1913 to 1918 then, in that case, he was entitled to an increase of rent if the number of ’phones operated during the extended period of the lease was in excess of 3,300. It will be seen, therefore, that he is not consistent in his contentions.

Appellant averred, in his declaration, that from and after July 31, 1918, the power consumed by appellee was more than 25 per cent greater than on August 1, 1913, based on 3,300 ’phones on that date, and the added cost of power at the then current rate charged public consumers for a like quantity, by reason of which the monthly rental after July 31, 1918, was $333.75 per month as provided in the lease, instead of $222.50 per month. As we understand this averment appellant bases his right to recovery on the theory that the cost of producing the same amount of current had increased more than 25 per cent and that he was entitled to a corresponding increase in the rent.

Appellant had a large office building in which were about fifty tenants, including appellee. Prior to the World War he generated all of the electric current required to light the entire building, to operate the elevators and to charge appellee’s electric machines and never had a meter or any -other method of determining how much current was used by appellee or any other tenant. That was the situation at the time the lease was executed in 1913. After this country entered the war he ceased to generate the electric current for his building and procured the same from an electric light company. He then had a meter installed for the purpose of ascertaining the amount of current used in the entire building but was never able to tell how much current was used by appellee or any other tenant.

When the lease was executed in 1913 appellant had no way of determining the amount of electric current furnished appellee or the co.st of producing the same. That being the situation, the parties stipulated for an additional term of five years at the same rental except on condition the “power consumption is 25 per cent more than at present, which is thirty-three hundred ’phones.” If they did not intend to measure the “power consumption” by the number of ’phones why did they say that the then present power consumption was 3,300 ’phones? If they meant that the “power consumption” should be measured by the cost of production of the current why should they refer to the number of ’phones then in use? We see no escape from the conclusion that they expressly agreed the power consumption in August, 1913, was what would be required for 3,300 ’phones and whether the rent would be higher after August 1, 1918, would depend entirely upon the number of ’phones in use on that date without regard to the amount of current actually used or the cost of producing the same.

As a general rule in construing the provisions of a lease relating to renewals, where there is any ambiguity, the tenant is favored and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do- so, and also upon the principle that every man’s grant is to be taken most strongly against himself. 16 R. C. L. 884; Fergen v. Lyons, 162 Wis. 131, 155 N. W. 935; Stetler v. North Branch Transit Co., 258 Pa. 299, 101 Atl. 980; Kaufmann v. Liggett, 209 Pa. 87.

On the trial appellant was permitted to testify, over objection, that Mr. Chillinger, a wire chief in appellee’s employ, told him in January, 1923, that appellee then had 5,000 ’phones in use; that there had been an increase of 2,000 in the two years preceding that date. He was also permitted to testify that another wire chief told him in January, 1922, that appellee then had more than 5,000 ’phones in use at the exchange in question. There was no other evidence offered by appellant as to the number of ’phones in use by appellee. There was no showing that the persons alleged to have made those declarations had authority, express or implied, to make such statements, nor was it shown that it was any part of their duty to know or keep a record of the ’phones in use. The alleged declarations were not made with any reference to any matter that was intrusted to their attention or consideration. The evidence was clearly incompetent and should have been excluded.

But even if it were not objectionable on that ground, it was wholly insufficient to show that more than 3,300 ’phones were in use in August, 1918. The number in use at that time was the material question and not the number in 1922 or 1923. According to the contract appellee was to have an additional term of five years from August 1, 1918, at the same rental unless the power consumption had then increased more than 25 per cent of 3,300 ’phones. Before appellant was en- • titled to an increased rental it was incumbent on him to prove that on August 1, 1918, appellee had more than 4,125 ’phones in operation. He utterly failed to offer any proof tending to support such a claim. Under the contract, as we construe it, the question- of the increased cost of furnishing electric current was not involved. But even if it were, there was no competent evidence to support that theory.

Appellant simply testified that his power and light bills for the entire building had doubled. He does not say when that occurred, whether before or after August 1, 1918, nor does he show that the increase was not due to the requirements of his other tenants. The lease provided that the increased rental should not exceed the added cost of power at the then current rate charged public consumers for a like quantity of consumption. There is no competent evidence in that regard. He also says he had to run his generators seven hours a day longer than usual in order to charge appellee’s electric machines because they were badly worn and out of repair. He expressly agreed to furnish appellee the current necessary "to charge its electric machines without regard to their condition. There is nothing to that point.

Under the contract, as we have construed it, if appellant had recovered a verdict and judgment it would have been our duty to reverse without remanding as he is not entitled to recover. The judgment is right irrespective of the other alleged errors and it is unnecessary to consider them. This court will not reverse a judgment because of erroneous processes in reaching it, when, if it had been the other way, a reversal on appeal would have ensued. McPike v. Luer, 230 Ill. App. 271. The judgment is right and must be affirmed.

'Affirmed.


text:
    Hayes Bale, Defendant in Error, v. Otter Pond Drainage District, Plaintiff in Error.
    1. Appeal and ebbob — waiver of error not assigned, or argued on appeal. Where appellant failed to assign and argue on appeal an alleged error of the trial court in sustaining a demurrer to certain pleas, and the judgment appealed from was affirmed following the striking of the bill of exceptions because not procured within the time limited by the trial court, such error was waived.
    2. Appeal and ebbob — failure to perfect appeal as bar to subsequent writ of error. Where a judgment has been affirmed, on appeal, for the failure of the appellant to preserve a bill of exceptions within the time limited by the trial court, the appellant may not thereafter, by writ of error, attack an alleged erroneous ruling of the trial court in sustaining a demurrer to its pleas, although such error would have been reviewable if assigned and argued on the appeal notwithstanding the want of a bill of exceptions.
    3. Appeal and ebbob — review of error in ruling on demurrer in absence of, bill of exceptions. An alleged error of the trial court in sustaining a demurrer to certain pleas is preserved for review on appeal notwithstanding the purported bill of exceptions is stricken, on motion, because not procured within the time limited by the trial court.
    Error by defendant to the Circuit Court of Lawrence county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the October term, 1925.
    Writ of error dismissed.
    Opinion filed November 12, 1925.
    F. C. Meserve, P. W. Barnes and George W. Lackey, for plaintiff in error.
    Gee & Gee, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.

This case was before us at our October, 1924, term on the appeal of plaintiff in error. The alleged errors then relied upon were such, only, as could be preserved in a bill of exceptions. Appellant failed to procure a "bill of exceptions within the time allowed by the trial court. On motion of appellee the purported bill was stricken from the transcript of the record, and as it was not then claimed that there was any error disclosed by the common-law record, we affirmed the judgment. The case was never reviewed by the. Supreme Court and our judgment was final under section 121 of the Practice Act. [Cahill’s St. ch. 110, 120.]

Since the affirmance of the judgment plaintiff in error sued out this writ of error and seeks a reversal on the ground that the court erred in sustaining a demurrer to certain of its pleas. If the alleged errors now relied upon had been assigned and argued on the former appeal, it would have been our duty to consider them for the reason that as. to such matters no bill of exceptions is required. Having failed to urge them on appeal they were waived.

"When a judgment has been affirmed, although not on the merits, but for failure of appellant to perfect the appeal, file briefs, prosecute, or take other steps required by law or rule of court, a second appeal or writ of error cannot be maintained. 3 Corpus Juris, p. 346; 2 Cyc. 525. In Daly v. Kohn, 230 Ill. 439, the court said: “An appeal is a continuation of the same case, and when the case is transferred to an appellate tribunal by appeal, there is no case pending in the trial court upon which a writ of error will operate at the suit of the party prosecuting the appeal until the case gets back into the trial court in some regular way.” "When our judgment of affirmance became final there was no way to get the case back into the trial court, so as to’ be again subject to’ review by appeal or writ of error by plaintiff in error.

The writ of error, under the practice in this State, was improvidently sued out and must therefore be dismissed.

Writ of error dismissed.


text:
    John Huggins, Appellant, v. City of Pinckneyville et al., Appellees.
    1. Appeal and error — effect of inconsistency of position of appellee on application for rehearing after judgment of reversal. Where a judgment is reversed on appeal the appellee is not bound, on petitioning for a rehearing, by any position he may have taken on the appeal in support of the judgment of the trial court, nor by the omission of any reason which might have been advanced in the trial court for a judgment in his favor, and if the judgment is right it will be affirmed regardless of the reasons advanced.
    2. Taxes — power of city to levy tax to pay waterworks construction bonds charged against city generally. Where a city, authorized by Cahill's St. ch. 24, 236 et seq., and Cahill’s St. ch. 24, V1062 et seq., to borrow money and levy taxes for the construction of waterworks, receives authority by a vote of the people to issue and sell bonds for that purpose which are a general charge against the city, the power of the city to levy a tax for the payment of such bonds in excess of the levy authorized by Cahill’s St. ch. 24, If 115, is not limited by Cahill’s St. ch. 24, If 1077 et seq., since said V 115 expressly recognizes the right of the city to levy, in addition to the general tax therein provided for, such an amount as may be necessary to pay its bonded indebtedness.
    3. Local improvements and assessments — necessity for special assessment for construction of municipal waterworks system, A system of waterworks constructed by a city pursuant to Cahill’s St. ch. 24, V1062 et seq., is not required to be constructed by special assessment, the act contemplating that the city may borrow money for such purpose.
    4. Local improvements and assessments — propriety of special assessment for construction of parts of municipal waterworks system, specially benefiting particular property. While the construction of a general system of waterworks for fire protection and general use is not a local improvement which may be paid for by special assessment, the cost of laying water mains and such portions of the system as are local in character and of special benefit to particular property may be paid for in that manner.
    5. Municipal corporations — necessity for submission of waterworks construction ordinance to popular vote. Proceedings for the construction of a municipal waterworks system cannot be said to have been in compliance with the provisions of Cahill’s St. ch. Illa, VI et seq., where the record thereof does not show that the ordinance providing for such construction was ever submitted to a vote of the people for their approval, as required by f 3 of such chapter, although it showed a compliance with If 8 thereof by securing popular approval of an issue of bonds to secure funds for such construction.
    6. Public contracts — non-implication- of repeal of general statute respecting mode of contracting for public improvements by provisions for commission form of government. In view of Cahill’s St. ch. 24, If 323, providing that the adoption of a commission form of government shall not deprive a city of its powers under the Cities and Villages Act, Cahill’s St. ch. 24, If 121, authorizing the city, by a two-thirds vote of its aldermen, to contract for a public improvement without advertising for bids, or do the work itself through its proper officers, although the expense thereof exceeded $500, cannot be held to have been impliedly repealed, so far as applicable to cities under commission government, by Cahill’s St. ch. 24, f 377, requiring all contracts pertaining to public improvements involving an outlay of more than $500 to be let to the one who, in the opinion of the commissioners, makes the bid therefor most advantageous to the city.
    7. Public contracts — powers of city under commission government as to letting contracts for public improvements. In view of Cahill’s St. ch. 24, 1f1fl2l, 323, where a city under commission form of government decides, by a two-thirds vote of its commissioners, to construct a system of waterworks through its proper officers, it has the power to employ manual labor by the day or hour therefor, and to purchase material of the value of $500 and upwards on contracts let to the lowest responsible bidder; and on such vote the commissioners could let the contract for the entire improvement without advertising for bids, without regard to the total cost thereof, or they could have the work done without letting a contract for the entire construction.
    8. Injunction — necessity for averment of non-compliance by city with terms of authorizing statute. In a suit by a taxpayer of a city under commission form of government, to enjoin the city from letting a contract for the improvement of its waterworks system and from selling bonds of the city to defray the expense thereof and from levying a tax to pay such bonds, it was incumbent upon the complainant to aver and prove that the city commissioners had not, by a two-thirds vote, determined to make such improvement pursuant to the provisions of Cahill’s St. ch. 24, 121.
    9. Appeal and ebbor — presumption as to compliance by city with act authorizing procedure in letting contract, in absence of contrary showing in record. Where on appeal from a decree dismissing for want of equity a bill to enjoin a city under commission form of government from letting a contract for the improvement of its waterworks it did not appear from the record that the complainant had averred a failure on the part of the city to comply with Cahill’s St. ch. 24, f 121, authorizing the procedure adopted in letting the contract in question, the court could not presume that the city had not complied with the requirements of that paragraph.
    Appeal by plaintiff from the Circuit Court of Perry county; the Hon. Louis Bebnreuter, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed November 12, 1925.
    Original opinion filed August 5, 1925.
    L. A. Cranston and M. C. Cook, for appellant.
    W. O. Edwards, for appellees.
   Mr. Justice Barry

delivered the opinion of the court.

Appellant sought to' enjoin the City of Pinckneyville from letting a contract for the improvement of its waterworks; from selling city bonds and levying taxes to pay the same, and the county clerk from extending such taxes. The material averments of the bill were to the effect that the improvement and appropriation ordinances are null and void because the city is attempting to levy a direct annual tax in addition to the regular taxes allowed by law and without providing that any part of the income from the waterworks shall be applied to the payment of the bonds; that the proposed contract was never published- or submitted to a vote of the people as required by law; that the city has advertised for bids for the construction of the improvement and is about to let the contract therefor. While the Act of 1899 (Cahill’s St. 1925, ch. 24, 1077 et seq.) is not expressly referred to it is quite apparent from the averments in the bill that the action is based on the theory that the ordinances are void for the reason that the first three sections of that Act were not complied with. Appellees, in their answer, admitted the foregoing averments in the bill but denied that the improvement was being constructed under the Act aforesaid. They made no attempt to show by what authority the city was proceeding.

Appellant filed a supplemental bill in which he averred that since the filing of the original bill the city had rejected all bids, the lowest of which was $42,500; that no contract had been let for the construction of the entire improvement but the city was proceeding with the work by letting contracts for portions thereof in amounts less than $500, and employing men by the hour or day, and in that manner had expended several thousand dollars of the fund derived from the sale of bonds. Appellees answered that the, city had caused some preparatory work to' be done but denied that any part thereof, the expense of which exceeded $500, had been done except under contracts let to the lowest responsible bidder. Issues were joined and upon a hearing before the court a decree was entered dismissing the bills for want of equity.

In his original brief and argument, appellant called attention to the fact that there were at least five statutes under which the city may construct and maintain a waterworks system, and argued that the city having failed to, comply with any one of said acts the ordinances were void. Appellees insisted that under section 12, art. IX of the Constitution and Cahill’s St. 1925, ch. 24, ft 65, clause 5, the city had the power to borrow money for the construction of the improvement and to issue bonds therefor and to levy taxes to pay the same and that by reason thereof the decree was right and should be affirmed. Appellees made no claim that the city had complied with the provisions of any one of the waterworks statutes.

We held, in effect, that the city could not construct and maintain a system of waterworks without complying with one of the several statutes pertaining to that subject, citing City of Chicago v. Town of Cicero, 210 Ill. 290, and that inasmuch as appellees did not claim that the city had complied with any of said acts the decree should be reversed. Appellees then filed a petition for rehearing in which, for the first time, they insisted that the proceedings on the part of the city met all of the requirements of the Act of 1872 (Cahill’s St. ch. 24, ¶ 236 et. seg.), the Act of 1873 (Cahill’s St. ch. 24, ¶ 1062 et seg.) as well as the Act of 1913 (Cahill’s St. ch. 111a, ¶ 1 et seg.). And appellee is not bound by any position he may have taken in this court in support of the judgment of the trial court, nor by the omission of any reason which might have been advanced in the trial court for a judgment in his favor, and if the judgment is right it will be affirmed regardless of the reasons advanced. Mulvihill v. Shaffer, 297 Ill. 549; Becker v. Billings, 304 Ill. 190 [23 N. C. C. A. 105]. For that reason we granted a rehearing.

Under the Acts of 1872 and 1873 aforesaid, the city had express power and authority to borrow money and levy taxes for the construction of waterworks. The city thought it wise to borrow the money by the issuance and sale of its bonds. The question was submitted to a vote of the people and the bond issue was authorized. Appellant contends that the proceedings cannot be sustained under those statutes because it was necessary to levy an additional tax which is not authorized by any statute other than the Act of 1899; that unless that Act was complied with the city is limited to the general taxes authorized by law. This is a misapprehension. The amount that may be raised by general taxation is limited by Cahill’s St. ch. 24, |f 115, but that paragraph expressly recognizes the right of the city to levy, in addition thereto, such an amount as may be necessary to pay its bonded indebtedness. The Act of 1899 only applies when the bonds are to be paid out of the additional taxes and the income from the waterworks and from no other source. In the case at bar the bonds are a general charge against the city and the payment thereof is not limited to a particular fund.

Appellant contends that when a system of waterworks is constructed under the Act of 1873 it must be done by special assessment. That contention is not sound as the act contemplates that a city may borrow money for such purposes. Merchants Loan & Trust Co. v. City of Chicago, 264 Ill. 76. The construction of a general system of waterworks for fire protection and general use is not a local improvement which may be paid for by special assessment, but the cost of laying water mains and such portions of the system as are local in their character and of special benefit to particular property may be paid for in that manner. Hewes v. Glos, 170 Ill. 436; Village of Morgan Park v. Wiswall, 155 Ill. 262. We are of the opinion that the proceedings in question were fully authorized by the Acts of 1872 and 1873 and that it was not necessary for the city to comply with the Act of 1899.

We cannot agree with appellees’ contention that the proceedings also complied with the provisions of Cahill’s St. ch. 111a, ¶ 1 et seq. Section 3 of that statute requires that the ordinance shall be submitted to a vote of the people for their approval. So far as the records show that was not done. There was a vote on the question as to whether bonds should be issued and in that regard there was a compliance with section 8 of said Act. The ordinance never having been approved by the voters it cannot be said that the proceedings were in compliance with said Act.

The City of Pinckneyville is organized under the general law. Before it adopted the commission form of government it was required to let all contracts to the lowest responsible bidder for any work or other public improvement, not to be paid for by special assessment, if the expenses thereof exceeded $500, but by a vote of two-thirds of its aldermen it could contract without advertising for bids, or could do the work itself through its proper officers and for that purpose was authorized to employ all manual labor by the day or hour, but all material of the value of $500 and upward to be used in the construction should be purchased by contract let to the lowest responsible bidder in the manner to be proscribed by ordinance. Cahill’s St. ch. 24, ¶ 121. It is expressly provided that when a city adopts the commission form of government it shall not lose any of the rights, powers or authority possessed by it under the Cities and Villages Act. Cahill’s St. ch. 24, ¶ 323. While the Act in regard to commission form of government requires that all contracts pertaining to public improvements involving an outlay of more than $500 shall be let to the one who, in the opinion of the commissioners, makes the most advantageous bid for the city (Cahill’s St. ch. 24, ¶ 377), yet we are of the opinion that there is no such conflict between that paragraph and paragraph 121 aforesaid that would authorize us in holding that said paragraph 121 was repealed by implication in so far as its application to cities under commission form of government is concerned.

We are also of the opinion that if the city by a vote of two-thirds of its commissioners decided to construct a system of waterworks through its proper officers, it had the power to employ manual labor by the day or hour and to purchase material of the value of $500 and upward on contracts let to the lowest responsible bidder. It is clear from paragraph 121 aforesaid that on such a vote the aldermen or commissioners could let the contract for the entire improvement without advertising for bids without regard to the total cost of the entire improvement. We think it is equally clear that upon such a vote the city could have the work done without letting a contract for the entire construction. The legislature, in our opinion, did not intend to limit the power of the city in that regard to an improvement the entire cost of which would not exceed $500 over and above the cost of necessary manual labor.

Appellant neither averred nor proved that two-thirds of all of the city commissioners had not voted that the city should do the work in accordance with the provisions of said paragraph 121. In the state of the record we would not be warranted in presuming that the city had not complied with the paragraph. The burden was upon appellant to aver and prove that the city was proceeding without authority of law, and having failed to do so the decree is affirmed.

Affirmed.


author: Mr. Presiding Justice Thomson

text:
    Daisy B. Beesley, Appellee, v. Benjamin Goldstein, Appellant.
    Gen. No. 30,099.
    1. Pabent and child — responsibility for negligence of member of family in driving automobile kept for their general use. The owner of an automobile is responsible for damages caused by negligence in its use by any member of his family, where he maintains the vehicle for their general use and pleasure and they have his general permission to use it whenever they have occasion to.

      2. Pabent and child — sufficiency of evidence to show use of automobile within general purpose for which it was kept by owner. Where the owner of an automobile kept it mainly for the general use of any members of his family who could drive it and cared to, evidence of the use of the vehicle by his unmarried daughter, 20 years old, who made her home with her father, in driving about the city with her fiancé and his sister, intending later to take the sister to her home and then drive to some place of amusement to spend the evening, held sufficient to show a use of such vehicle within the purpose for which it was kept, although the father did not know that his daughter was going to use the car on this particular occasion, and although the engagement between his daughter and her fiancé was later broken.
    Appeal by defendant from the Superior 'Court of Cook County; the Hon. Timothy D. Hurley, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed January 20, 1926.
    Alfred Roy Hulbert, for appellant.
    John A. Bloomingston, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

By this appeal the defendant seeks to reverse a judgment for $4,000, recovered against him by the plaintiff in the superior court of Cook county. The plaintiff brought her action to recover damages caused by injuries she suffered as a result of being struck by an automobile which, at the time, was being driven by the defendant’s daughter, a young woman 20 years of age. The daughter was unmarried and living with her father. The defendant had owned this car for about a year. Now and then he had occasion to use it in connection with his business, but for the most part it was kept for the general use of any members of his family who could drive it and cared to. The daughter who was driving the car at the time of the plaintiff’s injury, used the car frequently. The defendant did not know his daughter was going to use the car on this occasion, but she had his general permission to use it for her pleasure whenever she cared to, and without giving him special notice. With the defendant’s, daughter in- the car, at the time of the accident, was. her fiancé and his sister. The defendant’s daughter was driving them about the city, intending later to take her fiancé’s sister to her home and then drive to some place of amusement, where she and her fiancé were to spend the evening.

In her declaration the plaintiff charged that the defendant was the owner of the automobile by which she had been injured and that he had provided and maintained the car for the convenience, pleasure, comfort and entertainment of Ms family, and that at the time the plaintiff was injured, the defendant’s daughter, with his consent, was operating the automobile for her convenience, pleasure and entertainment and upon the business of the family, and that through her negligence she injured the plaintiff. The defendant filed a plea of the general issue and also a special plea, in wMch he alleged that, at the time and place in question, he did not own, manage, operate or control the automobile which injured the plaintiff.

No question was made as to the defendant’s ownership of the car when the case came to trial. The only question before this court on this appeal is whether, on the facts above stated, the defendant is liable under the law applicable to such situations as laid down by our Supreme Court.

The principal cases in wMch our Supreme Court has recently been called upon to pass on this question, are Arkin v. Page, 287 Ill. 420; Graham v. Page, 300 Ill. 40; and Gates v. Mader, 316 Ill. 313. After the Supreme Court had decided the Arhin case and the Graham case, this court rendered a decision in Cloyes v. Plaatje, 231 Ill. App. 183, in which a similar situation was presented. In that decision we commented at length upon both the decisions previously rendered by our Supreme Court, and followed the decision of that court as announced in the Graham case, pointing out that in that decision the Supreme Court had said that “The weight of authority supports the liability of the owner of a car which is kept for family use and pleasure, where an injury is negligently caused by it while driven by one of Ms children by Ms permission, and the reasoMng of those eases seems sound and more in harmony with the principles of justice. We agree with the Supreme Court of Tennessee, that where a father provides his family with an automobile for their pleasure, comfort and entertainment, ‘the dictates of natural justice should require that the owner be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained.’ (King v. Smythe, 140 Tenn. 217.) ”

Later, the Supreme Court handed down its decision in the case of Gates v. Mader, supra, in which they reaffirmed the decision which had previously been rendered in the Graham case, saying again that “The weight of authority supported the liability of an owner of a car kept for family use and pleasure, when an injury was negligently caused by it when driven by one of his children.”

There is a distinct division of opinion in the courts of last resort in the various states on this question. The decisions of our Supreme Court in the Graham case and the Mader case have definitely placed our state among those adhering to the rule making the owner responsible for damages caused by the negligent use of the automobile by any members of his family, where he maintains it for their general use and pleasure and they have his general permission to use it whenever they have occasion to. The other rule, limiting the liability in such cases to those in which it can be shown that at the time the injury was inflicted the car was being used not only with the owner’s knowledge and permission, but in connection with some matter in which he or the family was directly interested, must, in many instances, prevent the substantial justice called for by the circumstances. An automobile is a comparatively modem vehicle. Its use involves many more elements of serious danger than was the case with vehicles of less speed and power, especially when driven by those who are not expert. As our Supreme Court well said in the Graham case, it seems not only sound, but “more in harmony with the principles of justice,” to hold the owner liable where he maintains the car for the use and pleasure of his family and damages are caused by the negligent driving of some member of the family.

The defendant seems to attempt to distinguish the facts in the case at bar from those involved in Gates v. Mader, supra, contending that in the latter case the court held the owner liable because at the time the injuries-there involved were inflicted, the car was being used for one of the purposes for which the owner was maintaining it, namely, the pleasure of the family, as a family. In that case an adult son was driving his mother, two sisters, a cousin and two friends, of his mother’s, to a luncheon to which the family had been invited. The contention is that in the case at bar the defendant’s daughter, at the time the plaintiff was injured, was using the defendant’s car for a purpose which was foreign to that for which the defendant maintained it. We are unable to appreciate the distinction sought to be made. It was admitted by both the defendant and his daughter that he maintained the car, among other reasons, for the pleasure of that daughter. That the particular use she was making of the car, at the time the plaintiff was injured, namely, taking her fiance and his sister out for a drive about the city, was at that time well within the purpose mentioned, permits of no question, notwithstanding the fact that defendant’s, brief advises us, that later the engagement between the defendant’s daughter and her fiance was broken.

In our opinion, the facts involved in the case at bar bring it strictly within the rule of liability which we conceive to have been established by the decisions of our Supreme Court. The judgment of the superior court is therefore affirmed.

Judgment affirmed.

Taylor and 0 ’Connor, JJ., concur.