text:
    Marie A. Phillips, appellee, v. Equitable Life Assurance Society of the United States, appellant.
    Gen. No. 40,211.
    Opinion filed October 10, 1938.
    Mayer, Meyer, Austrian & Platt, for appellant; Miles G. Seeley, of counsel. O’Brien & Hanrahan and Arthur E. Walsh, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    George L. Fredericks, appellee, v. Albert R. Urbach et al., defendants, and Robert Anderson et al., appellants.
    Gen. No. 40,230.
    Opinion filed October 10, 1938.
    Opinion slightly modified and rehearing denied October 24, 1938.
    Harris F. Williams, for appellants; B. Blakeney Harris, of counsel. William G. Thon, for appellee; Chas. H. Soelke, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Donna Marie Hansen, minor, by Louise Hansen, her mother and next friend, appellee, v. Hazel Spahr, appellant.
    Gen. No. 40,113.
    Opinion filed October 10, 1938.
    Beverly & Klaskin, for appellant; Samuel T. Klaskin, of counsel. Guy C. Guerine and Chester M. Carson, for appellee; Guy C. Guerine, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Abram Karn and Etta Karn, plaintiffs, v. North West Side Lumber Company et al., defendants. In the matter of the petition of Julius H. Miner, appellee, v. Abram Karn et al., respondents. Appeal of Merchants and Manufacturers Securities Company, appellant.
    Gen. No. 40,161.
    Opinion filed October 10, 1938.
    Rehearing denied October 24, 1938.
    Robert L. Huttner, for appellant. Henry Perlman, .for appellee; Julius H. Miner, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Second District.
    Mary Jacobs, appellee, v. Harry Jacobs, appellant.
    Gen. No. 9,311.
    Opinion filed May 25, 1938.
    Rehearing denied June 30, 1938.
    W. G. Anderson, for appellant. Hibbs & Pool, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Theodore Wille, appellant, v. William H. Claus, appellee.
    Gen. No. 9,315.
    Opinion filed June 22, 1938.
    Arch F. Nuttall, for appellant. Albert H. Krusemark, for appellee.
   Mr. Presiding Justice

Dove delivered the opinion of the court.


text:
    Elmer C. Fisher, trading as Fisher Iron and Metal Company, appellee, v. Midland Iron and Steel Company and Louis Livingston. Midland Iron and Steel Company, appellant.
    Gen. No. 9,321.
    Opinion filed June 22, 1938.
    Rehearing denied July 22, 1938.
    Murphy & Murphy, for appellant; Hayes Murphy, of counsel. Huber & Reidy and Herman H. Rimmerman, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Rockford Finance and Thrift Company, appellant, v. Metropolitan Life Insurance Company, appellee.
    Gen. No. 9,327.
    Opinion filed June 22, 1938.
    Edward S. Foltz, Jr., for appellant. Early, Carpenter & Early, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Presiding Justice Dove

text:
    Hugo Pick, appellee, v. Elizabeth Druggan, appellant.
    Gen. No. 9,322.
    Opinion filed August 16, 1938.
    Albert Sabath, for appellant. Decker, Brazell & Decker, for appellee; Bernard M. Decker, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    Laura Farnham, appellee, v. E. F. Swartwout, appellant. Edgar Dolder, appellee, v. E. F. Swartwout, appellant.
    Gen. No. 9,334.
    Opinion filed August 16, 1938.
    Richolson & Anderson, for appellants. Butters, Butters & Berry, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    Yetta Myers, administratrix of estate of George D. Myers, deceased, appellee, v. Sears, Roebuck and Company, appellant.
    Gen. No. 9,304.
    Opinion filed August 30, 1938.
    John K. Newhall and David B. Givler, for appellant. Alsehuler, Putnam & Johnson, for appellee; Edward F. Streit and William C. O’Brien, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Robert J. Criddle, appellee, v. Emil Vohlken et al., appellants.
    Gen. No. 9,307.
    Opinion filed August 30, 1938.
    Green & Wheat, for appellants. Burrell & Burrell, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Catherine Moore, administratrix of estate of George B. Moore, deceased, appellee, v. Illinois Power and Light Corporation, appellant.
    Gen. No. 9,333.
    Opinion filed August 30, 1938.
    E. Bentley Hamilton, for appellant. Cassidy & Knobloek, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    H. Rubin, appellant, v. City of Rockford et al., appellees.
    Gen. No. 9,308.
    Opinion filed August 30, 1938.
    Welsh & Welsh, for appellant; C. K. Welsh, of counsel. A. V. Essington and Carroll H. Nelson, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Eva Major Pinkham and Chasteen William Major, appellees, v. George Pinkham et al., appellees, and Woodford County National Bank of El Paso, appellant.
    Gen. No. 9,310.
    Opinion filed August 30, 1938.
    B. H. Heuring, for appellant; C. B. Chapman, of counsel. Carter Fietseh and Clifford N. Coolidge, for appellees Eva Major Pinkham and Chasteen William Major.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Stanley Williamson, appellee, v. Walter I. Jones, administrator of estate of Charles W. Hart, deceased, appellant.
    Gen. No. 9,324.
    Opinion filed August 30, 1938.
    Edward Corlett, for appellant. Francis J. Loughran, for appellee; Dale G. Nicholson, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Hallie Kelley, appellee, v. Theodore O. Miles or in the alternative, Frank Sutor, defendants. Appeal of Theodore O. Miles, appellant.
    Gen. No. 9,332.
    Opinion filed September 15, 1938.
    Richard J. Neagle, for appellant; Joseph E. West, of counsel. James E. Davis and Armor H. Moreland, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Third District.
    Bruno Hefer, individually and administrator of estate of Emma Catherine Hefer, deceased, appellees, v. Charles M. Thomson, appellant.
    Gen. No. 9,108.
    Opinion filed April 20, 1938.
    Rehearing denied July 26, 1938.
    Hill & Buffington, for appellant; K. L. Richmond, of counsel. Dryer, Brown & Poos, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    George W. Solomon, appellee, v. Franklin Life Insurance Company of Springfield, appellant.
    Gen. No. 9,101.
    Opinion filed April 20, 1938.
    Rehearing denied July 26, 1938.
    James C. Jones and Lawrence Hoff, for appellant. Leslie G. Pefferle, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


author: Mr. Presiding Justice Stone

text:
    Fourth District.
    People of the State of Illinois for use of George Costopolus, appellee, v. L. A. Maxwell, defendant, and Clara E. Maxwell et al., appellants.
    Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    Jacoby & Daly, for appellants. Wilbur A. Trares, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.


author: Mr. Justice Edwards

text:
    Otillie Blum et al., appellees, v. Clara Buesking et al., appellants.
    Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    Warnock, Williamson & Burroughs, for appellants. Henry B. Eaton, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    First District.
    Heritage Coal Company, appellee, v. Augusta Dreves, appellant.
    Gen. No. 37,367.
    Opinion filed November 27, 1934.
    Rehearing denied December 19, 1934.
    Samuel E. Davidson, for appellant. Rubenstein & Rubenstein, for appellee; Walter Monarch, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice Friend

text:
    Eleanor Davis Harris et al., for use of Otis Elevator Company, Appellants, v. American Surety Company of New York, Appellee.
    Gen. No. 39,888.

      Heard in the second division of this court for the first district at the December term, 1937.
    Opinion filed October 18, 1938.
    Rehearing denied November 1, 1938.
    Sims & Stransky, of Chicago, for appellants; Franklin J. Stransky, Timothy I. McKnight and Edward J. McLaughlin, all of Chicago, of counsel.
    Adams, Hawxhurst, Hawley & White, of Chicago, for appellee; Ralph R. Hawxhurst and Homer C. Dawson, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Eleanor Davis Harris and others brought suit against the American Surety Company of New York, for the use of Otis Elevator Company, to recover the contract price of a freight elevator installed in a building owned by the Harris heirs in McKeesport, Pa., pursuant to a written contract entered into between the Otis Elevator Company and the Good Construction Company, a contractor, which had agreed with the owners to erect a building, including the freight elevator, and furnish all materials and labor therefor. The suit is predicated on a surety bond executed by the Good Construction Company, as principal, and American Surety Company, as surety, and is brought for the use of Otis Elevator Company, the beneficial plaintiff herein. The court sustained a motion to strike the complaint, as amended, and plaintiffs, having abided by their complaint, judgment was entered against them for costs, and this appeal followed.

From the material allegations of the complaint, as amended, it appears that on April 24, 1929, Good Construction Company, as general contractor, entered into a written agreement with Eleanor Davis Harris and other heirs for the construction and completion of a certain building in McKeesport, Pa., including the furnishing of a freight elevator and certain machinery and equipment necessary to operate it. Thereafter, May 23, 1929, Good Construction Company made a contract with the Otis Elevator Company, by which the latter undertook to furnish the freight elevator and to complete the installation thereof. The elevator was installed, as agreed, but Good Construction Company failed to pay the purchase price in accordance with its contract and thereafter suit was instituted by the Harris heirs, for the use of the beneficial plaintiff. It is averred that the agreement between Good Construction Company and the Harris heirs, as owners, provided among other things that the contractor “shall and will provide all the materials and perform all the work for the erection and completion of a two-story and basement building,” upon the owners’ property ; that by a supplemental agreement, executed contemporaneously with the first contract between Good Construction Company and the owners, it was provided that the contractor would, at its own expense, procure and deliver to the owners a bond with a corporate surety satisfactory to the owners, “to secure the faithful performance by said contractor of its said contract”; that the supplemental agreement further provided that neither the contractor nor any subcontractor, materialman or other person whatsoever would file, enter or maintain a lien, commonly called a “mechanic’s lien,” for work done or materials furnished upon the premises for the purpose of the work contracted to be performed, or for any. work done or materials furnished or services of any kind rendered in connection therewith; that by the supplemental agreement the contractor further agreed to keep the building and premises at all times free from liens and to indemnify and save harmless the owners, “from any costs, expenses, attorney’s fees, loss or damage resulting from the filing of any lien or liens, contrary to the provisions of this agreement,” either by the contractor or by any other person for work done, materials furnished or services rendered under the contract.

Pursuant to the provisions contained in the supplemental agreement, Good Construction Company, as principal, and defendant, as surety, executed a bond, the condition of which was as follows: “That if the Principal shall erect and complete the said building in accordance with the terms of said agreement and shall in all respects faithfully perform all of the obligations of the Principal under the said agreement and shall satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the Owners from all cost and damage which the Owners may suffer by reason of the failure of the Principal so to do, and shall fully reimburse and repay the Owners all outlay and expense which the Owners may suffer by reason of the failure of the Principal so to do, and shall fully reimburse and repay the Owners all outlay and expense which the Owners may incur in making good any such default, then this obligation shall be null and void; otherwise it shall remain in full force and effect.”

The question presented is whether or not the language of the bond, hereinbefore set forth, read in connection with the contract between Good Construction Company and the owners of the property, was sufficient to disclose an intent that the protection of the bond should inure not only to the owners but to third persons furnishing to the contractor labor and material necessary to enable it to carry out this agreement with the owners. It is conceded by counsel for the respective parties that where one enters into a contract with another for the benefit of a third person who is not a party to the agreement, such third person may maintain an action in his or her name for a breach thereof. The controverted question is whether or not the bond herein was made, not only for the benefit and protection of the owners of the property, but also for the benefit and protection of third persons having claims and demands, “incurred” by the contractor to enable him to erect and complete the building.

The construction contract and bond in this case were made in the State of Pennsylvania, and in accordance with the laws of that State. The Good Construction Company, general contractor, was a Pennsylvania corporation. The American Surety Company, defendant herein, was authorized to do business in Pennsylvania, and the bond in question was entered into in that State. The Otis Elevator Company, plaintiff, was likewise authorized to do business in Pennsylvania, and its contract with the Good Construction Company was made in and dated at Pittsburgh in that State. The building in question was erected in McKeesport, Pa. Defendant’s counsel, pointing out these facts, say that the contracts having been made in Pennsylvania and to be performed there, are governed by the laws of that State, and that plaintiffs instituted suit in Illinois because the law of Pennsylvania will not permit a recovery upon a bond or contract by or for the use of a third person to which he is not a party, the only exceptions to the rule being (1) that where one person agrees with another to pay money to a third, or to deliver some valuable thing and such third party is the only one interested in the payment of the transaction; (2) where the promise to pay the debt of a third person rests upon the fact that money or property is placed in the hands of the promisor for that purpose; and (3) where one buys out the stock of a tradesman and undertakes'' to take the place, fill the contracts, and pay the debts of the vendor. (First M. E. Church v. Isenberg, 246 Pa. 221; Concrete Products Co. of America v. United States Fidelity & Guaranty Co., 310 Pa. 158.)

This leads to a consideration of the rule of law employed in this State regarding contracts of this nature. Defendant relies principally on the leading case of Searles v. City of Flora, 225 Ill. 167, wherein the city brought an action in debt against Aaron M. Searles and the National Surety Company for the use of A. L. Ide & Sons, a general contractor. It appeared from the evidence as disclosed in the opinion that Searles had submitted .to the city council of Flora a proposition to rebuild, improve and enlarge its electric light station and furnish certain engines and generators, for the sum of $4,000. Pursuant to this proposal a contract was entered into wherein Searles agreed that he would furnish and pay for all necessary materials and labor. The city agreed to pay Searles $2,000 upon the arrival of the machinery, and the balance upon completion of the improvement. Searles undertook to furnish to the city a bond to secure the faithful performance of all the terms of the contract, and pursuant to this undertaking he, as principal, and the National Surety Co., as surety, presented to the city a bond in the sum of $4,000, conditioned as follows: “The condition of the obligation is such, that whereas the above bounden principal, A. M. Searles, has entered into a certain contract with the above named obligee, a copy of which contract is hereunto attached . . . : Now, therefore, if the above bounden principal shall well and truly keep, do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be by said principal kept, done and performed, at the time and in the manner in said contract specified, and shall pay over, make good and reimburse to the above named obligee all loss and damage which said obligee may sustain by reason of failure or default on the part of said principal, then this obligation shall be null and void, otherwise to be and remain in full force and virtue.” (Italics ours.) The construction contract in the Searles case provided that the contractor “would furnish and pay for all materials, engines, dynamos, connections, machinery, instruments, equipments and labor for said improvement in said electric light plant,” and the contractor purchased but did not pay for certain machinery which was thereafter installed. Suit was brought on the bond in the name of the city of Flora, for the use of the subcontractors, to recover the unpaid balance due them. The trial court and the Supreme Court both held that the suit could not be maintained, either directly or indirectly for the benefit of these subcontractors, because the contract and bond were not entered into “directly and primarily” for their benefit. The court pointed out that the bond, as well as the contract, ran directly to the city of Flora, reaffirmed the doctrine that the obligation of a surety must always be strictly construed (City of Sterling v. Wolf, 163 Ill. 467), but held that there was nothing in any of the terms used in either the contract or the bond to indicate that it was intended to apply to or protect third persons. In construing the contract and bond, the court said (p. 171): “If the bond or contract by its terms had provided that it was given for the benefit of subcontractors or materialmen, as well as the city of Flora there would be force in the contention of appellee. It is evident, however, that the purpose of its execution was to insure the completion of the work within the contracted period, free from liens of every kind. If the city had been required to pay any claims arising for materials furnished, by reason of a lien on the funds in its hands, or on any other cause, then the surety company would be required to reimburse and save it harmless.” After reviewing and discussing several decisions cited the court concluded (p. 172): “From these and other authorities which might be cited we take the rule to be, that to entitle a third person to recover upon a contract made by others there must not only be an intent to secure some benefit to such third person, but the contract must have been made and entered into directly and primarily for his benefit.” The court also pointed out that as between the parties, and certainly as against the surety on the bond, the contract contemplated that Searles should pay for engines and generators upon delivery, but that he had no right to purchase these articles on credit, and distinguished the case from City of St. Louis v. Von Phul, 133 Mo. 561, wherein suit was brought on a bond not unlike the one in the Searles case, but which expressly provided that as soon as the contract was completed the contractor should pay to the principal parties all amounts due for labor and materials used and employed in the performance thereof.

The interpretation of the contract and bond in the Searles case and the doctrine enunciated with reference to the right of third persons to recover on a contract made by others was followed in City of Herrin v. Stein, 206 Ill. App. 339, wherein suit was brought on a bond in the name of the city of Herrin for the use of certain subcontractors of Henry Stein & Son, who had entered into an agreement with the city to construct a city hall. The contract there provided that Stein & Son were “to build and furnish all material and labor necessary for the erection and completion of a brick and stone three story City Hall and Lodge building for the City; . . . and shall duly and promptly pay and discharge all indebtedness that may be incurred by them in carrying out said contract. ...” (Italics ours.) The bond in that case was conditioned upon the contractor truly keeping and performing the agreement in strict accordance with the terms thereof. The Appellate Court held that the declaration contained no allegation of breach of the bond so far as the city was concerned, affirmed the rule that the contract and bond must be construed together as one instrument, and held that the words “shall pay and discharge all indebtedness that may be incurred by them in carrying out said contract” did not indicate that the contract was intended for the benefit and protection of third persons. In so holding the court distinguished that case from Board of Education v. Aetna Indemnity Co., 159 Ill. App. 319, upon the ground that the bond in the latter case expressly provided that the contractor should “promptly make payment to all persons supplying him with labor or materials” (italics ours), and added that “the fact that appellant is a paid surety does not justify this court in departing from the rule of construction adopted by the Supreme Court in such cases.” The decision in the Herrin case was predicated upon a declaration containing allegations not unlike those in the amended complaint in this proceeding, and the court concluded that in the absence of any allegation that the city of Herrin had been required to pay any claim for materials furnished, the declaration, as amended, did not state a cause of action and that the demurrer thereto should have been sustained. The effect of the decision, following the ruling in the Searles case, is that the contract and bond in that proceeding were not made directly and primarily for the benefit of any third person, and therefore suit could not be brought thereon in the name of the obligee for the use of any third person.

In People for use of National Cast Iron Pipe Co. v. Merkle, 269 Ill. App. 449, action was brought in the name of the people for the use of the National Cast Iron Pipe Co. and against Merkle and the Surety Co. Merkle, the general contractor, had entered into an agreement with the State of Illinois for the construction of a water distribution system for the Manteno State Hospital. At Merkle’s request the pipe company had furnished and delivered materials to him for use in the work, for which he failed to pay. The agreement required Merkle, the contractor, to “provide and pay for all materials, labor, water, tools, equipment, light and power necessary for the execution of the work. The owner will require the contractor to furnish bond covering the faithful performance of the contract and the payment of all obligations arising thereunder, in such form as the owner may prescribe and with such sureties as he may approve.” (Italics ours.) The condition of the bond in that case was that “if the above bounden E. J. Merkle• . . . shall in all things stand to and abide by and well and truly keep and perform each and every of the covenants, conditions and agreements on the part of the said principal to be kept and performed, within the time and in the manner and form as in said contract entered into . . . , then the above obligation to be void; otherwise, to remain in full force and effect.” The surety company filed a general demurrer to the declaration which was sustained, and in passing upon the right of a third person to recover on a contract to which he is not a party, the court pointed out that in each case in which a recovery was allowed, the language of the obligation required the contractor, “to pay all persons,” who have contracts with the principal, or supply the principal with labor or materials, and that a contractor’s bond which merely requires him to furnish and pay for materials is not a contract on which a third person can maintain a suit, either directly or in the name of the obligee for bis use.

Carson, Pirie Scott & Co. v. Parrett, 346 Ill. 252, decided in 1931, is one of the cases cited by plaintiffs to sustain their position that the language of the bond executed by defendant in this proceeding, read in connection with the contract between Good Construction Company and the owners of the property, was sufficient to disclose an intent "that the protection of the bond should inure to the benefit of third persons furnishing to the contractor labor and material necessary to comply with the agreement. That case involved a contract by which certain defendants agreed to pay for furnishings and equipment if the Danville Hotel Company did not do so. The furnishings and equipment referred to were mentioned in the contract with the names of the persons from whom they were purchased, and among the list was the following, “Linens — Carson Pirie Scott Company, Marshall Field Company, $6,763.25,” and immediately following the list of furnishings and equipment the contract contained the following provision: ‘1 The parties of the first part will promptly pay for the above characters of furnishings and equipment when payments are due, if the Hotel Company does not do so, so that the installation of same promptly and free of lien is assured.” The court held that Carson Pirie Scott & Company could maintain a suit upon that contract because it was expressly named therein, with the amount of the obligation specifically stated, and that there was a direct promise by the obligors to pay it if the hotel company did not do so, and in discussing the legal principle involved, affirmed the rule laid down in Searles v. City of Flora, supra, as follows: “The rule is settled in this State that if a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; if incidental he has no right of recovery thereon. This rule has been announced without variation in numerous cases decided by this court.” (Citing Kinnan v. Hurst Co., 317 Ill. 251; Vial v. Norwich Union Fire Ins. Society, 257 Ill. 355; Searles v. City of Flora, 225 Ill. 167; and various other Illinois decisions.

Plaintiffs also cite and rely upon Merchants Loan & Trust Co. v. Ummach, 228 Ill. App. 67; Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252; Danville Hotel Co. v. Benson, Inc., 262 Ill. App. 288; Board of Education for use of Weil v. Chicago Bonding & Surety Co., 218 Ill. App. 20, and Board of Education v. Aetna Indemnity Co., 159 Ill. App. 319. The first two of these cases involved contracts other than construction contracts or bonds, and in those two cases the third person beneficiaries of the contracts were specifically named, together with the amount of the debt due the third person which was set forth in the contracts, and in each instance the contract contained an express obligation to pay such named person. In the three remaining cases, the suits were upon construction bonds in which the obligation was in each instance to pay or make payment “to all persons” supplying labor or materials.

Plaintiffs’ counsel argue that the omission of the words “to all persons” does not preclude a recovery, because they say that the language employed in the bond should be construed as an intention of the parties thereto to protect, not only the rights of the owners of the property but also third persons who in good faith furnished the material and labor to enable the contractor to perform its contract with the owners. It is argued that the words “satisfy all claims and demands incurred for the same” must necessarily have referred to claims and demands incurred by the contractor with third persons who furnished materials and labor to enable the contractor to carry out its agreement with the owners. However, language of similar import was employed in the Searles v. City of Flora, supra, and other cases cited and discussed hereinabove, and the Supreme and Appellate Courts of this State have consistently held that to entitle a third person to recover upon a contract made by others there must not only be an intent to secure some benefit to such third person, but the contract must have been" made and entered into directly and primarily for his benefit, and that the test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. In view of these decisions we are constrained to hold that the law in this State is well settled and that the language employed in the agreement and bond was properly construed by the court adversely to plaintiffs’ herein.

It is urged by plaintiffs that the case should not have been decided on the motion to strike, but should have been resolved on the merits, -inasmuch as the in- , tention of the parties could only be ascertained from the language of the bond in the light of the surrounding facts and circumstances, and that evidence should have been permitted to disclose the intention. The rule is well settled that intention must and can only be sought in the language employed in the instrument itself and from the ordinary or popular meaning of the words themselves, unless it is apparent they are used in a technical or particular sense. (Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502.) In the Merkle case, 269 Ill. App. 449, the court pointed out that (p. 455) “While it is true that bonds given by the surety company to secure the performance of a contract by the principal are to be strictly construed against the company in case of an ambiguity, if there is no ambiguity, there is no room for construction of the contract of surety. (Citing Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502.)” The contract and bond in this proceeding contain no such technical language as would justify the admission of extraneous evidence and circumstances to explain the plain language employed in these instruments.

We are of the opinion that the court properly sustained defendant’s motion to strike plaintiffs’ complaint as amended. The judgment of the circuit court ‘is therefore affirmed.

Judgment affirmed.

Scanlan and Sullivan, JJ., concur.


text:
    J. A. Anderson, Appellant, v. Pettigrew Foundry Company et al., Appellees.
    Gen. No. 39,902.

      Heard in the second division of this court for the first district at the December term, 1937.
    Opinion filed October 18, 1938.
    Rehearing denied November 1, 1938.
    Harold I. Chayes, George Gillette and Edmund J. Reynolds, all of Chicago, for appellant.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellees; Joseph M. Taussig, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

J. A. Anderson, plaintiff herein, seeks to reverse a decree of the superior court which found the complaint as amended insufficient in law and dismissed the suit for want of equity. No testimony was adduced upon the hearing and the sole question presented is whether the complaint, as amended, was erroneously dismissed.

The material allegations of the complaint may be summarized briefly as follows: In February, 1928, the Pettigrew Foundry Company of Harvey, Illinois, owned three parcels of real estate, described by metes and bounds, which were incumbered by a first mortgage for $14,000 and a second for $18,500, owned by Frederick B. DeYoung, deceased, and the Bank of Harvey, respectively. Subsequent to February, 1928, the foundry company agreed with the Bank of Harvey, The First National Bank of Dolton and Frederick B. DeYoung to refinance the total indebtedness of $32,500 by issuing $30,000 in bonds secured by trust deed which would constitute a first lien upon the same property and by paying the balance of the indebtedness in cash. In compliance with this agreement the foundry company executed the new bonds and trust deed, the notes secured by the first and second mortgages then outstanding were canceled and surrendered to the foundry company by the Bank of Harvey and Frederick B. DeYoung in exchange for new bonds and the trust deed securing the said notes was released. At the time of the release of the first and second trust deeds, the cancellation and surrender of the notes secured thereby, and the acceptance of the new bonds, the Bank of Harvey, the First National Bank of Dolton and Frederick B. DeYoung, as well as the foundry company, are alleged to have believed that the new bonds to be secured by the trust deed constituted a first lien on all the property of the foundry company.

It is alleged that the $30,000 in new bonds and the trust deed securing them contained a description which, by mutual mistake of fact, instead of covering all the property of the foundry company which the parties intended should be conveyed to secure said bonds covered only one of the three contiguous parcels then owned by the foundry company, being a vacant strip of land immediately adjoining the parcel on which the foundry buildings were erected, and which vacant lot had a value of only about $1,000; that after the delivery of said new bonds and trust deed all the parties to the transaction and all persons thereafter dealing with said bonds, trust deed and the three parcels of real estate, treated the real estate, the bond issue and trust deed securing it as if the description contained in the trust deed and the bonds were the proper description of all the property of the foundry company, being said three parcels of real estate formerly described in the two mortgages for $14,000 and $18,500 respectively; that certain of said bonds were sold to various purchasers, including plaintiff, upon the representation and with the understanding that they were secured by trust deed conveying all the foundry company’s property, and that plaintiff paid over $5,000 for the bonds he now owns.

It appears from the record that plaintiff had originally filed a complaint in the usual form to foreclose a mortgage predicated upon his ownership of $5,000 of the new bonds, and it is alleged in the complaint, as amended, that when the error in description was first discovered by him in October, 1936, he immediately filed an amended bill to reform the description of the real estate contained in the trust deed conveyance, as well as to foreclose because of certain alleged defaults in payment of principal, interest and taxes.

The complaint as amended asks that the description of the real estate contained in the trust deed be reformed or in the alternative that plaintiff be subrogated to the liens of the original first and second mortgages; that the cancellation of the notes surrendered in exchange for the new bonds be set aside; that the release deeds, purporting to release the liens of the original first and second mortgages, be canceled; and for the foreclosure of the equity of redemption from the new trust deed as reformed, or in the alternative from the original trust deeds.

Laura Mueller, one of the defendants, filed a motion to strike the amended and supplemental complaint, specifying some seventeen separate grounds therefor, which may be summarized as follows: That with respect to the right of reformation plaintiff is not entitled to. the relief sought because it does not affirmatively appear from the complaint that others do not claim the property in question; that it does not affirmatively appear that plaintiff, who seeks reformation, was free from negligence; that the complaint does not set forth when the bonds were acquired by plaintiff, nor the consideration paid for them; that no showing is made whether the Pettigrew Foundry Company’s agreement with the Bank of Harvey, the First National Bank of Dolton, and Frederick B. DeYoung was oral or in writing, and in any event was not binding on Laura Mueller; that the complaint fails to show that any of the parties suffered damages by reason of the alleged mistake, and especially the Bank of Harvey and the First Natibnal Bank of Dolton, since the bonds were sold to various parties and they and Frederick B. DeYoung were paid in full therefor; that subsequent purchasers had no right to rely upon the representation, when that portion of the property which was included in the mortgage was a matter of public record; and that the plaintiff is precluded from maintaining his complaint because of laches.

The interest of defendant Laura Mueller arises out of a quitclaim deed to her recorded January 18, 1937, during the pendency of this suit and more than two months after the filing November 12, 1936, of the amended and supplemental complaint to reform and foreclose.

Defendants’ brief and argument refers at length to facts set up in an affidavit filed by one of their attorneys in support of the motion to dismiss, and to stipulations of fact which are said to have been entered into by counsel when the motion to dismiss was argued. In presenting their argument showing the interest of Laura Mueller, and her status as a party to the proceeding, reference is made by defendants’ counsel to the averments of this affidavit and the stipulations. An examination of the record, however, discloses that these matters were not properly before the court and should not be considered on appeal, for the following reasons: To the amended and supplemental complaint filed November 12, 1936, Laura Mueller filed a motion to dismiss to which she attached a rather lengthy affidavit made by one of her attorneys, the averments of which are interwoven in the argument as to the legal sufficiency of the amended complaint. It appears that subsequently, June 3," 1937, Laura Mueller obtained an order of court allowing her to withdraw her motion to dismiss and the affidavit in support thereof and granting her leave to file on or before June 14, 1937, “an amended motion to dismiss and strike the amended and supplemental complaint herein and such affidavits in support thereof as counsel for Laura Mueller consider proper and are in compliance with the practice act and rules of court.” No further or other affidavits were thereafter filed by Laura Mueller or her counsel. Shortly after the entry of the above order, plaintiff on June 10, 1937, by leave of court filed the amended and supplemental complaint which with the short amendment thereto constitutes the pleadings here under consideration. Thereafter defendant filed her motion to dismiss the amended and supplemental complaint, and the only affidavit filed in connection with this motion was the usual affidavit averring that the motion was well founded in point of law and not interposed for delay. We are therefore constrained to disregard the facts set forth in the affidavit or used in connection with the argument seeking to support the court’s order and dismissing the complaint on grounds of insufficiency, and limit our consideration to the sufficiency of the complaint, as amended, to the allegations therein contained.

The motion to strike takes the place of a demurrer under the old practice and admits the following material facts stated in the amended cdmplaint: The foundry company in March, 1928, owned three contiguous parcels of real estate which it had acquired for over $55,000 at different times. It then entered into an agreement with Frederick B. DeYoung and the two banks to secure an issue of $30,000 of its bonds by a first lien on all such real estate. Pursuant to this agreement bonds were issued and the trust deed sought to be reformed and foreclosed was executed, containing a description which under the averments of the amended complaint all parties believed was a description of all the real estate, but which actually was a description of only a small and worthless part thereof. The motion to strike further admits that the three parcels of real estate owned by the foundry company consisted of one tract, which was part of Block G in a subdivision known as Harvey; that two parts of said Block Gr were not owned by the foundry company, one directly east of the tract owned and one directly west thereof; that in order to properly describe the tract owned it was necessary to exclude the parts of Block Gr not owned by the foundry company, and in drafting the description to be inserted in the trust deed it was the intention of the parties to exclude these two parts not owned by the foundry company; that in the description used the clause excepting the part on the west was correct, but the language used erroneously excluded, not only the property on the east not owned by the foundry company, but also excluded the principal part of the tract, which the foundry company did own and on which the foundry buildings were located, which, with the fixtures, machinery and equipment therein, were particularly intended to be the security for the $30,000 bond issue. The amended complaint specifically describes the erroneous part of the description contained in the trust deed, as well as that part of Block Gr which the parties intended to exclude, and also a description of parcels one and two, owned by the foundry company, which were intended to be included in the property conveyed by the trust deed. The motion to dismiss likewise admits that some of these bonds secured by the trust deed containing this erroneous description were sold to the public, and between the time of the execution of the trust deed in 1928 and the discovery of the mistake by plaintiff in 1936 everyone dealing with the property or the bonds, including the purchasers thereof, as well as the two banks and Frederick R. DeYoung, treated the trust deed as a lien on all the foundry company’s real estate.

It appears also from the amended complaint that after the execution of this trust deed but before the mistake was discovered the foundry company was adjudged bankrupt; that during the bankruptcy proceeding all the property of the bankrupt was treated by both the parties to the bankruptcy proceeding and by the federal court as being subject to the lien, of a trust deed, and that although the trust deed actually only described one, a vacant lot, the federal court by its order entered November 21, 1932, adjudged that the trust deed not only covered the land and buildings, but also that most of the machinery and equipment in the buildings were fixtures covered by the trust deed; and that the above order was entered upon the petition of Otto F. Reich, as trustee in the trust deed sought to be reformed; that subsequently the U. S. District Court sold the three parcels of real estate which had cost the bankrupt over $55,000, subject to the lien of this trust deed for $1,400, a price which evidently made allowance for the $30,000 principal and interest due on the bonds secured by the trust deed and a $20,000 junior mortgage issued later containing the same incomplete description.

The instant proceeding was brought June 4, 1936, by certain bondholders as a complaint to foreclose a mortgage. After the complaint was filed the then plaintiffs sold their bonds to J. A. Anderson, the present plaintiff, for some $5,000. This sale occurred prior to October 1, 1936. Anderson was then substituted as plaintiff herein, and while he was prosecuting the foreclosure, his counsel discovered the mistake in the description contained in the trust deed and bonds, and thereupon, November 12, 1936, filed an amended and supplemental complaint to reform the instrument and for foreclosure. This was the first" discovery of the error, and it appears from the allegations of the amended complaint that all persons dealing with the bonds or real estate prior thereto treated them as a first hen on all three parcels and the real estate as all subject to the lien of the trust deed.

The law is well settled that equity has power to reform "and correct a mortgage which in consequence of mistake fails to embody the contract actually intended by the parties to be made; and this relief may be granted in an action for the foreclosure of the mortgage; that is, the bill may pray for reformation of the mortgage and for its foreclosure as reformed, and the court in a proper case may decree accordingly. (Black on Mortgages, 1st Ed., par. 75, p. 102; Citizen’s Nat. Bank v. Dayton, 116 Ill. 257.) The circumstances necessary to make a proper case for the action of a court of equity in this behalf are well stated in Gassert v. Black, 11 Mont. 185, 195, as follows : “In order that a written instrument may be reformed in equity for mistake, it must appear that the parties agreed upon a certain contract; that they executed a contract, the one sought to be reformed; that the contract executed was not the one agreed upon; that the variance between the contract agreed upon and the one executed occurred by mistake; in what the mistake consisted; and that the mistake was mutual. ’ ’

This doctrine was affirmed in our own State in Skelly v. Ersch, 305 Ill. 126, and in Pearce v. Osterman, 343 Ill. 175, wherein the Supreme Court held that equity will reform a deed or other instrument of writing upon the ground of mistake, where the mistake was one of fact and not of law, the proof clearly and convincingly showing that a mistake was made and that it was mutual and common to both parties to the instrument. Counsel for defendants concede this fundamental proposition of law, but they say that reformation cannot be allowed under the allegations of the amended complaint in this proceeding, for three principal reasons: (1) the party seeking reformation is guilty of negligence; (2) laches preclude plaintiff from obtaining the relief sought; and (3) it would be inequitable to allow reformation as against defendant Laura Mueller, because it is not averred that when she acquired her deed to the property she had notice of the error and is therefore in the position of an innocent purchaser for value.

Considering first the question of negligence, the law seems to be well established that negligence to bar the reformation of a deed in case of mutual mistake, must be so gross as to amount to the violation of a positive legal duty, and estoppel does not arise where the act of the party sought to be estopped was due to ignorance by reason of an innocent mistake. (Pearce v. Osterman, 343 Ill. 175.) The courts have pointed out that in a sense every mistake involves some negligence, and in Columbian Nat. Life Ins. Co. v. Black, 35 F. (2d) 571, it was said to be obvious that negligence in itself is not a defense in a suit for reformation, because there would be no ground for reformation because of mutual mistake inasmuch as mistakes nearly always presuppose negligence. In Skelly v. Ersch, 305 Ill. 126; Federal Land Bank v. Kenshalo, 258 Ill. App. 1; Citizens Nat. Bank v. Dayton, 116 Ill. 257; Milmine v. Burnham, 76 Ill. 362; Omicron Co. v. Linge, 189 Wash. 157, and various other decisions cited in plaintiff’s brief, mistakes occurred in the description of real estate, and the assignees, who might also have discovered the mistake before purchasing the security, were held to be entitled to reformation. It appears reasonably clear from the allegations of the amended complaint in the instant proceeding that both the Pettigrew Foundry Company, the banks and Frederick B. DeYoung intended to pledge the real estate and buildings of the Pettigrew Foundry Company as security for the $30,000 bond issue, to take the place of the two mortgages which were immediately released upon the execution of the new security. The parties had agreed upon a contract to issue $30,000 of bonds of the Pettigrew Foundry Company, secured by a first mortgage on all its real estate, and the banks and Frederick B. DeYoung had agreed to accept bonds so secured. This contract was executed and the bonds issued in pursuance of the agreement. The amended complaint clearly states that the contract executed was not the one agreed upon, and that the bonds and trust deed described only a small part of the foundry company’s real estate, not including the parcel upon which its buildings were located. Undoubtedly the variance between the contract executed and the one agreed upon occurred by mistake, the mistake consisting, according to the complaint, of a failure to describe all of the parcels of land owned by the foundry company. This mistake was mutual, all the parties, as well as the trustee, believing that the bonds and trust deed contained a description of all the foundry company’s property. Under the decisions hereinbefore referred to, all of the elements necessary to afford reformation in equity are present and sufficiently alleged in the amended complaint, and the negligence which is assigned as one of the grounds for the insufficiency of the bill amounted to no more than such negligence as is necessarily implied by the mistake itself and not such as would constitute a bar to plaintiff’s right for relief.

Nor does it seem to us that the doctrine of laches is applicable to this proceeding. It is an inherent element of laches, not only that a considerable, period of time elapse and that the one charging it be prejudiced, but that the party sought to be charged therefor have knowledge of the facts. (Federal Land Bank v. Kenshalo, 258 Ill. App. 1; Peabody v. Burri, 255 Ill. 592.) The amended complaint in this proceeding clearly shows that the mistake was not discovered by anyone until 1936, when plaintiff’s counsel, after first filing a complaint for foreclosure, discovered the error in description, and according to the complaint plaintiff amended his bill immediately thereafter. Manifestly plaintiff was unaware of the mistake until checking up the description with the survey, and under the circumstances he cannot be charged with lack of diligence, because his complaint was immediately thereafter amended.

The remaining ground assigned by Laura Mueller in her motion to strike the amended complaint is that it does not allege that -she had notice of the mistake, and that she was in the position of an innocent purchaser for value. We think it a sufficient answer to this contention that she acquired her interest Us pendens. The record discloses that the ,first complaint to reform the trust deed was filed November 12, 1936, and became effective as Us pendens from and after that date. It is alleged that defendant’s deed from Adolph Becker was recorded January 18, 1937, more than two months after the amended complaint to reform was filed. Par. 53, sec. 1, p. 250, ch. 22, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 106.18], provides “that, every suit in equity, . . . affecting or involving real property shall, from the time of the filing of the complaint or petition, be constructive notice to every person subsequently acquiring an interest in or a lien on the property affected thereby, and every such person and every person acquiring an interest or lien as aforesaid, not in possession of said property and whose interest or lien is not shown of record at the time of filing such complaint or petition, shall, for the purposes of this Act, be deemed ■ a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he were a party thereto. . . .” It therefore appears that Laura Mueller took whatever interest she acquired in the real estate by her quitclaim deed from Adolph Becker lis pendens, and under the foregoing statute she is deemed to be a subsequent purchaser and not an innocent purchaser for value.

The amended complaint making Laura Mueller defendant alleges that she ‘1 claims to have some interest in the mortgaged premises, including said parcel No. 1, by reason of a certain quitclaim deed . . . from Adolph Becker purporting to have been executed and delivered ... on the 18th day of January, 1937, and filed for record with the Recorder of Deeds of Cook county as document No. 11937389 and recorded in book 33423, on page 200.” When the matter is again heard in the superior court, and Laura Mueller sets up her chain of title by answer, plaintiff will be entitled to show that his rights are superior to those of defendants, and the question of her status as an innocent purchaser can then be determined.

The mutual mistake of fact relied upon in this case is not uncommon, as shown by a great number of cases in which reformation has been decreed, and the amended complaint sets forth a cause of action which under the great weight of authority conforms to circumstances under which courts of equity have invariably granted the relief sought.

We are therefore of the opinion that the chancellor erred in dismissing the amended complaint, and the decree is therefore reversed and the cause remanded with directions that defendants be required to answer the complaint and that such further proceedings be had as shall not be inconsistent with the views herein •expressed.

Reversed and remanded with directions.

Scanlan and Sullivan, JJ., concur.


author: Mr. Justice John J. Sullivan

text:
    Mabel Bernero, Appellee, v. The Retirement Board of the Firemen’s Annuity and Benefit Fund of the City of Chicago, Appellant.
    Gen. No. 39,805.

      Heard in the second division of this court for the first district at the October term, 1937.
    Opinion filed October 18, 1938.
    Barnet Hodes, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant.
    Joseph W. Cox, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

John D. Bernero was a member of the fire department of the city of Chicago from March 1, 1907, to April 24, 1928, on which latter date he retired on a pension. He was married to Mabel Bernero (the petitioner in this proceeding, who will hereafter be referred to as plaintiff) on May 15, 1912, and procured a divorce from her on June 30, 1927, on substituted service. He subsequently married one Ada Steiner Foss, who died in December, 1932. Bernero died in May, 1933. On February 7, 1934, plaintiff procured a decree setting aside the decree of divorce theretofore granted to John D. Bernero. Plaintiff’s decree was entered pursuant to a bill in the nature of a bill of review filed by her on July 25, 1933, in which she alleged inter alia that Bernero in his affidavit for service by publication in his divorce proceeding fraudulently stated her last known place of residence incorrectly.

February 8, 1934, the day after her husband’s divorce decree was vacated, plaintiff filed with respondent, The Retirement Board of the Firemen’s Annuity and Benefit Fund of the City of Chicago (hereinafter for convenience sometimes referred to as the board) an application for a pension as the widow of John D. Bernero. On March 1, 1934, the respondent board filed a motion for leave to intervene in the Bernero divorce proceeding and to have set aside the order entered therein on February 7, 1934, which vacated the decree of divorce theretofore granted to Bernero. An order was entered by the trial court in that cause on June 29,1934, denying respondent’s motion to intervene, which order was affirmed by this court on June 26, 1935, and the judgment of this court was affirmed by the Supreme Court on April 24,1936. On August 3, 1936, plaintiff’s attorney addressed a letter to the respondent requesting action on her application theretofore filed on February 8, 1934, for a pension as the widow of John D. Bernero and hearings were had in the matter on September 23, October 20, November 18, and December 22,1936. On the latter date the application of plaintiff for a widow’s annuity was denied by the respondent board.

March 9, 1937, a petition for certiorari was filed by plaintiff in the circuit court of Cook county seeking a review by that court of the action of respondent in denying her application for pension. A writ of certiorari was ordered to issue and on April 5, 1937, respondent’s return was filed. May 17, 1937, judgment was entered by the trial court quashing the board’s return and ordering and directing respondent to pay a pension to plaintiff in accordance with and pursuant to her application therefor. It is to review this judgment that this appeal is prosecuted.

The respondent board contends that “the order entered by the nisi prius court in this case was contrary to law because at the time plaintiff’s application for annuity came before the defendant board for its consideration, the act creating the firemen’s annuity and benefit fund and governing the administration of that fund provided as follows: (Ill. Rev. Stat. 1937, ch. 24, sec. 944.38 [Jones Ill. Stats. Ann. 100.323].)

“The following described wives or widows of firemen shall not have any right to annuity from the annuity and benefit fund herein provided for:

t Í

“(e) The divorced wife or widow of any fireman who has a decree of divorce from her fireman husband annulled, vacated or set aside by any proceedings in court subsequent to the death of such fireman, unless such court proceedings are filed within five (5) years after the date of the divorce and within one year after the death of such fireman and unless the retirement board of this fund is made a party to said proceedings.”

Plaintiff’s theory is that “she has done everything required of her to entitle her to a pension as a fireman’s widow”; that “her right to receive a pension was not affected by the amendment of 1935 to the statute governing pensions to firemen and their widows”; and that “the amendment of 1935 to the statute in question not being retroactive, and defendant’s return under the writ of certiorari not disclosing any reason to the contrary, plaintiff should be allowed her pension.”

The real question presented is whether under the undisputed facts disclosed by its return to the writ of certiorari, the respondent board denied plaintiff’s application for pension because of its mistaken view of the law. Can it be seriously urged that plaintiff’s right to a pension must be determined in accordance with the provisions of the above quoted amendment, which did not become effective until July 1,1935? It is true that the board failed to act on plaintiff’s application until December, 1936, when it denied same, but it is also true that plaintiff’s right to the pension accrued when it was established by decree of court on February 7, 1934, that she was the lawful widow of Bernero. Her status having been so fixed and her application for a pension having been filed the very next day, February 8, 1934, it was incumbent upon respondent to determine her right to a pension as of the date of the accrual of such right. It is preposterous to argue that respondent could delay considering plaintiff’s application for pension, as it did for more than two and a half years, and then interpose as a reason for not granting same an amendment to the pension act which was not enacted until nearly a year and a half after her right to the pension had accrued and she had filed an application therefor.

There is no question in this case of the power or the right of the legislature to pass the aforesaid amendment nor is there any question that, if the subject matter of the amendment had been incorporated in the pension act, under which plaintiff makes her claim, prior to the time her right to the pension accrued, she would not be entitled to a pension. Regardless, however, of the suspicions that may have been or are now entertained by the members of the respondent board as to plaintiff’s right to have the court vacate the decree of divorce procured from her by her husband almost six years prior to his death and regardless of respondent’s challenge of plaintiff’s right to a pension on moral grounds, the fact remains that the decree of court of February 7, 1934, vacating the decree of divorce theretofore granted to her husband, fixed her status as his lawful widow.

Therefore her status as the widow of Bernero having been legally established on February 7, 1934, and her application for a pension as his widow having been filed February 8, 1934, plaintiff was clearly entitled to have such application granted unless it must be held that the legislature intended that the amendment of July 1,1935, heretofore set forth, to the firemen’s pension act should have a retroactive effect.

Sec. 4, par. 4, ch. 131, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 27.16], provides in part as follows:

“No new laws shall be construed to repeal a former law whether such former law is expressly repealed or not as to . . . any right accrued, or claim arising under the former law, or in any way whatever to affect any such . . . right accrued or claim arising before the new law takes effect, save only that the proceedings, thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.”

In discussing the matter of the construction of statutes dealing with substantive rights in White Sewing Machine Co. v. Harris, 252 Ill. 361, the court said at p. 367:

“The general rule to be applied in the construction of statutes is, that they should be given a prospective rather than a retrospective or retroactive operation unless there is language found in the statute which is so clear that it will admit of no other than the' retroactive construction. (People v. Lower, 236 Ill. 608, and cases cited; 2 Lewis’ Sutherland on Stat. Const. — 2d Ed. —, sec. 642.)”

Miner v. Stafford, 326 Ill. 204, is a case clearly in point on the question of the inapplicability of the amendment of 1935 to the uncontroverted facts in the instant case. There one Edward Miner, a policeman and the husband of the petitioner, Phoebe Miner, had been killed in 1922 in the line of duty and she thereby became entitled to and was allowed and paid a pension of $50 a month. In 1923 the pension act under consideration in that cause was amended by increasing the maximum amount of pension allowable under said act to $1,250 a year instead of $600, as theretofore provided (Laws 1923, p. 253, sec. 6, Smith-Hurd Stats., ch. 24, sec. 897, note [Jones Ill. Stats. Ann. 100.262]). The petitioner then claimed a pension of $60 a month instead of $50, which she was entitled to receive under the old law, because her husband at the time of his death was receiving $120 a month salary. In that case the court said at p. 207: ‘ ‘ The only question in the case is the application of the amendment of 1923 to pensions for loss of life while in the performance of duty before that date. The language of the amendment of 1923 does not indicate any intention on the part of the legislature that it should have any retrospective effect. It refers not to cases where any member of the police force has lost his life while in the performance of his duty leaving a widow who was dependent upon him, but to cases where a member of the police force shall lose his life leaving a widow who is dependent on him. The language refers to the future and not to the past. The amendment indicates no intention to increase pensions, the right to which has already accrued before the passage of the law.

“It is a well settled rule of statutory construction that a statute will not be given a retrospective effect unless the intention of the legislature to give it such effect is clearly shown. (People v. Chicago and Alton Railway Co., 289 Ill. 282; People v. Deutsche Gemeinde, 249 id. 132.)”

Respondent cites and relies upon McCann v. Retirement Board, 331 Ill. 193, and Beutel v. Foreman, 288 Ill. 106, as authority for its position that, inasmuch as the respondent board conformed its decision in denying plaintiff’s application for a pension to the law as it existed when the decision of said board was made, it performed its legal duty, inasmuch as plaintiff did not institute the proceeding to vacate the decree of divorce theretofore procured by her husband within five years of the date of its procurement, as provided by the amendment of 1935. These cases are readily distinguishable from the case at bar since they both hold merely that the amendments to the pension acts considered therein, fairly construed and read in connection with the other sections of said acts, were clearly intended by the legislature to be retroactive.

The mere reading of the amendment of 1935 and a fair construction of the language employed therein, leads inevitably to the conclusion that the legislature intended such amendment to operate prospectively rather than retroactively.

It clearly appearing from the return of the respondent board that said board denied plaintiff’s application for pension under an erroneous and mistaken view of the law, the trial court properly quashed such return.

As heretofore shown, the trial court in addition to quashing the board’s return “ordered and directed” the respondent “to pay a pension to Mabel Bernero, the petitioner herein, in accordance with and pursuant to her application therefor.” Respondent contends that “this judgment order is erroneous and void because the nisi prius court has no power to enter any order in a certiorari proceeding excepting an order to quash the writ or quash the return,” and that “when the court proceeds further than this and not only quashes the return but enters an order requiring certain specific action on the part of the respondent in certiorari, the court exceeds its power and jurisdiction under the common law writ of certiorari and its order becomes an extra-judicial and void order. ’ ’

In passing upon a similar contention in People ex rel. Maloney v. Lindblom, 182 Ill. 241, the court said at p. 244: “The only office of the writ of certiorari is to bring before the court the record of the proceedings of the inferior tribunal for inspection, and the only judgment to be rendered is that the writ be quashed or that the record of the proceedings be quashed. Chicago and Rock Island Railroad Co. v. Fell, 22 Ill. 333.” (To the same effect are Cass v. Duncan, 260 Ill. 228 and Hopkins v. Ames, 344 Ill. 527.)

The case of People ex rel. Byrnes v. Retirement Board, 272 Ill. App. 59, which was decided by this court and in which certiorari was denied by the Supreme Court, is cited as supporting plaintiff’s view that the trial court, in addition to quashing respondent’s return, properly included in its order the direction to the respondent board to grant plaintiff’s application for pension. It is true that in the Byrnes case, which was also a proceeding by common law writ of certiorari against the board administering the firemen’s pension fund, the trial court besides quashing the return in that case ordered such board to allow the pension applied for. However, in that case the propriety of such order was not questioned on review.

Since the law is as set forth in the Lindblom case, supra, that the only judgment that can be rendered in a certiorari proceeding “is that the writ.be quashed or that the record of the proceedings be quashed,” we are impelled to hold that the trial court was without jurisdiction to include in.its judgment order,a mandate that the respondent board grant plaintiff’s application for a pension. Since the record of the proceedings, wherein and whereby the board denied plaintiff’s application-, has been quashed, she is now in a position to again present her application, and, in our opinion, a pension should be allowed her unless other and different facts are disclosed than those contained in the record now before us.

For the reasons indicated herein that portion of the judgment of the circuit court quashing the return of the respondent board is affirmed and the portion of the judgment directing the respondent board of the Firemen’s Annuity and Benefit Fund of the City of Chicago to grant plaintiff’s application for a pension is reversed with directions to the trial court to modify its order by omitting therefrom the mandate to the respondent board.

Affirmed in part; reversed in part and remanded with directions.

Friend, P. J., and S candan, J., concur.


text:
    Carrie Haw, Appellee, v. 1933 Grill, Inc., Appellant.
    Gen. No. 40,209.

      Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed October 18, 1938.
    Ekern & Meyers, of Chicago, for appellant; Donald L. Thompson, of Chicago, and Vernon A. Forsberg, of counsel.
    James F. McNicholas, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment for $403.68 entered upon the verdict of a jury against defendant, 1933 Grill, Inc., in an action brought by plaintiff, Carrie Haw, under the Dramshop Act (sec. 14, § 135, ch. 43, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.042]) for damages for loss of property and loss of her .husband’s support.

Plaintiff’s complaint alleged in- substance that on March 13, 1935, defendant, 1933 Grill, Inc., with the knowledge and consent of the Hamilton Club of Chicago, conducted a tavern in premises owned by said Hamilton Club at 24 South Dearborn street, Chicago, where it sold and gave away alcoholic liquors; that “at the place and time aforesaid the servants and agents of said defendant, 1933 Grill, Inc., at said premises known as 24 South Dearborn street, sold or gave to one Fred J. Haw, Sr., the husband of this plaintiff, intoxicating liquors, and then and there by said selling or giving said alcoholic liquors as aforesaid did cause the intoxication of said Fred J. Haw, Sr., and that while so intoxicated and in consequence of such intoxication at the time and place aforesaid said Fred J. Haw, Sr., then and there without using the care a reasonably prudent person under the same or similar circumstances would have used, engaged in physical combat with Fred Belmont, one of the managers of said 1933 Grill, Inc.”; that “as a result of said physical altercation said Fred J. Haw, Sr., received a severe injury to his right eye, which necessitated considerable hospitalization and medical care, and resulted in the loss of about twenty weeks employment by Haw”; that “Fred J. Haw, Sr., was without funds or property with which to pay for medical care and attention, and that plaintiff herein, as the wife of said Fred J. Haw, Sr., was able to and was legally obliged to pay for the necessary medical care and attention to the injury to the eye of said Fred J. Haw, Sr., . . . and to expend large sums of money in repairing said injury”; that “from March 13, 1935, to and including July 31, 1935, she was deprived of the support usually given her by said Fred J. Haw, Sr., and to which she was entitled, because of his total incapacity arising from said intoxication” ; and that “there was at the time and place aforesaid in full force and effect a certain statute of the General Assembly of Illinois, entitled, 'An Act Relating to Alcoholic Liquors,’ approved January 31, 1934, and by reason of the provisions of said statute the defendants complained of herein were and are liable for the damage sustained by plaintiff ... by reason of the intoxication of said Fred J. Haw, Sr., whereby said plaintiff suffered a loss of property and a loss of support as aforesaid. ’ ’

The suit was originally instituted against the Hamilton Club, the owner of the premises, and 1933 Grill, Inc., which conducted the tavern in question. Both answered admitting that the latter operated its tavern for the sale of alcoholic beverages in the premises owned by the former and with said owner’s knowledge and permission but denied or otherwise put in issue all other allegations of the complaint. During the trial plaintiff took a voluntary nonsuit as to the defendant Hamilton Club.

The evidence disclosed that plaintiff’s husband with a friend visited the 1933 Grill, Inc. (hereinafter referred to as the defendant) on the evening of March 13, 1935, where he purchased or at least was served with whisky, the amount of which was testified to variously as being from 5 to 15 drinks, which he consumed and which caused him to become intoxicated;' that after he became intoxicated, Haw conducted himself in a boisterous manner and used profane language; that Fred Belmont, one of defendant’s floor managers, remonstrated with Haw several times and admonished him that he would be removed from the premises unless he behaved properly; and that thereafter Belmont either punched plaintiff’s husband in the eye or put his arms around him, presumably to put him out of the tavern. Belmont testified that in the altercation or scuffle, which ensued after he put his arms around Haw, he probably struck him in the eye with his elbow or some other part of his body “because he has a pretty good hold and I swung away ... he had his arms around me and I tried to break away from him. ’’ Haw received a serious injury to his right eye, which necessitated medical treatment over a considerable period and resulted in the loss of his employment for many weeks. Since he had no funds to pay for the medical services rendered him, plaintiff paid for such services and also suffered the loss of his support for the period he was out of employment as the result of his injury. No question is raised as to the reasonableness of the damages awarded.

Defendant’s theory is that the injuries suffered by plaintiff’s husband “were not the result of intoxication, but of an independent intervening cause, which, according to plaintiff’s testimony, was a malicious assault by a non-intoxicated or sober person, Fred Belmont. ’ ’

Plaintiff’s theory as stated in her brief is that “the injury sustained by plaintiff’s husband was caused in the course of his attempted eviction, that his attempted eviction was brought about because of his intoxicated condition; that the necessity for maintaining quiet and order in the tavern in question is a normal incident in the conduct of such business, and the necessity for the eviction of intoxicated customers is one that is foreseen by the operator of such tavern.”

Defendant’s major contention is that the trial court erred in denying its motion for a directed verdict at the close of all the evidence and its motion for judgment notwithstanding the verdict of the jury because it claims no liability under the statute was shown. It insists that (1) “in order to create a liability under the Illinois Dram Shop Act, the plaintiff must show that the sale of alcoholic liquor was the proximate cause of the injury complained of,” and that (2) “an injury to a drunken person due to a malicious assault by a third person who is not intoxicated creates no liability under the Dram Shop Act.”

The section of “The Act relating to alcoholic liquors” (this act is substantially the same as the old Dramshop Act, the only difference being that the words ‘ alcoholic liquors ’ ’ are substituted in the present act for the words “intoxicating liquors” used in the former act), under which this action is brought, is in part as follows:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person. ’ ’ It will be noted that the quoted portion of the act affords a right of action to one injured in person or property, or means of support (1) “by any intoxicated person” or (2) “in consequence of the intoxication, habitual or otherwise of any person.” In the first instance the action is for a direct injury inflicted by an “intoxicated person” and in the second instance it is for such injury as may be suffered in consequence of the intoxication of any person.

In Whiteside v. O’Connor, 162 Ill. App. 108, in discussing the former Dramshop Act, the court said at pp. 112 and 113:

“In King v. Haley, 86 Ill. 106, the injury for which damages were sought to be recovered were directly inflicted by one Koffman, while intoxicated, and the court in construing the ninth section of the act entitled Dram-Shops, held that it provided for two separate and distinct causes of action — one for the direct injury inflicted by ‘an intoxicated person,’ and the other for such damages as might arise ‘in consequence’ of such intoxication. It was there further held that the theory adopted by the trial court that there could be no recovery except for injuries that resulted to the plaintiff in ‘ consequence of the intoxication’ of the person who inflicted the injury was erroneous and arose out of a mistaken view of the law. . . . When the distinction between the two grounds of action provided for by the statute is clearly recognized much of the uncertainty arising from the apparent indiscriminate application and reference to the doctrine of proximate cause in the adjudicated cases will disappear. When the action is for an injury resulting from the direct, affirmative act of an intoxicated person the doctrine of proximate cause has no application, and a liability accrues upon proof of that fact, but where the action is for an injury resulting ‘in consequence of intoxication habitual or otherwise, ’ it is incumbent upon the plaintiff to show that such intoxication was the proximate cause of the injury. ’ ’

• The following statement as to the construction generally given to statutes such as ours governing the gift or sale of intoxicating liquor appears in 15 R. C. L., par. 206, pp. 435, 436:

“Whether injury or damage remotely as well as proximately due to the intoxication may be recovered under a civil damage act depends usually upon the phraseology of the statute.' The type of act frequently used provides for recovery for injury to person, property or means of support ‘by an intoxicated person, or in consequence of the intoxication of any person’ (the second phrase sometimes reading ‘by reason of’). Where, under such a law an action is brought for an injury inflicted by the affirmative act of an intoxicated person, and is therefore based on the clause ‘by an intoxicated person,’ the courts are practically unanimous in holding that it is not necessary that the intoxication be the proximate cause of the injury, and the fact that the plaintiff himself was also intoxicated has no bearing upon the case, except upon the weight to be given to his testimony. For the purpose of applying this rule, the injury was regarded as having been inflicted by an intoxicated person, not only where the plaintiff himself was injured by the act of an intoxicated person, or such person killed the plaintiff’s means of support, that is, her husband, but also where the loss of support resulted from the suicide during intoxication of the plaintiff’s husband or father. Where, on the other hand, the injuries were not inflicted by the act of the intoxicated person and the plaintiff’s right to recover must be based upon the clause giving a right of action for injuries ‘in consequence of the intoxication,’ or its equivalent, it is usually held that there can be no recovery unless the intoxication was the proximate cause of the injury.”

Defendant insists and we agree that since plaintiff’s action is for an injury which she claims resulted in consequence of her husband’s intoxication, it was incumbent upon her to show that such intoxication was the or at least a contributing proximate cause of the injury. It is also urged that plaintiff is precluded from recovery because the injury to her husband did not result from his intoxication or from anything consequent upon that intoxication but from the independent act of a third person, which was the direct and immediate cause of his disability, and that she is further barred from recovery because the defendant might not reasonably have anticipated and foreseen that as a consequence of Haw’s intoxication he would get into an altercation and be injured.

Both plaintiff and defendant cite numerous authorities which they claim support their respective theories and contentions. We have carefully read and considered the cases cited but think that it would serve no useful purpose to discuss same at length since the facts in each distinguish them from the case at bar.

Whether or not Haw’s intoxication was the or a contributing proximate cause of the injury he received at the hands of defendant’s agent, Belmont, or whether or not the defendant might reasonably have anticipated and foreseen that in consequence of the intoxication of plaintiff’s husband it would become necessary to subdue or eject him because of his boisterous conduct and use of loud and profane language, must necessarily be determined from the evidence presented in this cause.

The occurrences in defendant’s tavern on the evening in question viewed in the light of Belmont’s testimony that “after he [Haw] had been there about half an hour he started getting noisy as he had always been before, two or three different occasions” present a chain or logical sequence of events that resulted in Haw’s injury. Defendant had knowledge that when Haw became intoxicated he got noisy. Yet one of defendant’s agents sold and served him sufficient whisky to intoxicate him. Haw then did get noisy. Defendant did not tolerate boisterous patrons in its tavern. Another of defendant’s agents in attempting to eject Haw from its premises injured his eye and it is immaterial whether such injury was caused deliberately and willfully or accidentally and unintentionally. By reason of defendant’s previous experiences with Haw it might reasonably have anticipated and foreseen the result of its sale of whisky to him and the law is that one does not have to foresee the actual result of his conduct, but it is sufficient that such a result might reasonably occur.

In our opinion the situation presented here does not bring this case within the rule that where an injury results, not from the intoxication nor from anything consequent upon the intoxication, but from the independent act of a third party, which is the direct and immediate cause of the disability, there can be no recovery against the dramshop keeper. While we have a third party, defendant’s floor manager, inflicting the injury in this case, the defendant must be presumed to have foreseen that its act of selling the liquor to Haw might have produced or been followed by the altercation in which he was injured. In view of the natural and logical sequence of the events leading up to Haw’s injury and the fact that Belmont would not have struck him except for the manner in which he conducted himself as a result of his intoxicated condition, in our opinion such intoxication was a contributing factor and at least a proximate cause of the injury.

A clear statement of the correct principle of law applicable to the facts in this case appears in Jones v. Keilbach, 295 Ill. App. 598, where the court said at p. 602:

“If the injury to Joe Shipley was directly attributable to his intoxicated condition and there was no other agency intervened sufficient of itself to stand as the cause of the injury, then the intoxicated condition would be considered the proximate cause of the injury, but if he received the injury while intoxicated, through the agency of an outside force but such intervening cause could not and would not have reasonably been brought into action except by reason of the intoxicated condition then in such case the intoxication would be a contributing factor and would be within the provisions of the statute.”

We are impelled to hold that Haw’s intoxication was a direct contributing factor to his injury, that defendant might reasonably have anticipated such a consequence as Haw’s injury as a result of his intoxication, and that plaintiff’s action is within the contemplation of the section of the Dramshop Act heretofore set forth.

Inasmuch as there was ample evidence to justify the verdict and judgment, it follows that the action of the trial court was proper in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

Defendant complains that the trial court erred in failing to give to the jury at its request the following instruction:

“If you believe from the evidence that the injury sustained, if any, by Fred J. Haw, Sr., was occasioned to the said Fred J. Haw, Sr., by the wanton and malicious act of Fred Belmont, then you should find the defendant not guilty regardless as to whether or not you further find that Fred J. Haw, Sr., was intoxicated at the time and place in question.” It is sufficient to say as to this instruction that since it does not correctly state the law applicable to the facts and circumstances in evidence, the court properly refused to give it.

For the reasons indicated herein the judgment of the municipal court is affirmed.

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.