text:
    Joseph G. D. Bailer, Conservator of Person and Estate of Rosina Schaefer, Incompetent Person, Appellant, v. Joseph McCarthy et al., Appellees.
    Gen. No. 41,924.

      Opinion filed December 30, 1942.
    Rehearing denied January 20, 1943.
    Leon Lecour Drolet and Charles J. Reed, both of Chicago, for appellant.
    George R. Fitzmaurice, of Chicago, for certain appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a decree which denied the relief sought by plaintiff, Joseph G. D. Bailer, conservator of the person and of the estate of Rosina Schaefer, an incompetent person, against Joseph McCarthy, the principal defendant (hereinafter for convenience sometimes referred to as the defendant). Certain other parties were made nominal defendants. The decree approved the report and recommendation of the master in chancery to whom the cause had been referred.

Plaintiff’s complaint charges that his ward, Eosina Schaefer, was insane on December 10, 1936, when Joseph M. McCarthy, Jr., defendant’s son and agent, induced her to sell or exchange a $7,500 note which she owned and which was secured by a first mortgage on defendant’s property, for notes aggregating $1,000 which were signed by his father; that she is still insane ; and that she was fraudulently overreached in the transaction.

The complaint concluded with the prayer that the entire transaction of December 10,1936 through which defendant secured Eosina Schaefer’s $7,500 mortgage note be declared void and that she be restored to her full and complete rights under said note and an extension agreement of July 18, 1931 between herself and the defendant and his wife.

Plaintiff’s theory as stated in his brief is that “defendant unlawfully procured from his ward a secured note for $7,500 upon which the defendant was liable. That the said defendant gave plaintiff’s ward unsecured notes aggregating $1,000 in attempted satisfaction of principal note for $7,500 which consideration is grossly inadequate and unjust and that because of the unsoundness of mind of plaintiff’s ward on the date of the alleged contract, December 10,1936, she was imposed upon and was overreached by - the defendant, and the contract, if any, is invalid, and ought to be set aside.”

The theory of the defendant is that “Eosina Schaefer, though admitting she was a woman advanced in years, was able and did manage her own affairs and was not of unsound mind on December 10, 1936, and that the transaction complained of considering the value of the property in question was fair and reasonable and that no fraud entered into the transaction as complained of by the conservator, and that at no time was there a fiduciary relationship existing between them and the only relationship that ever existed between them was that of debtor and creditor or mortgagor and mortgagee.”

The master reported as follows pertaining to the issues: “While the pleadings present two principal questions, namely: First, Was Rosina Schaefer incompetent on December 10th, 1936, the date when she delivered up the Seventy-five Hundred . . . Dollar principal note and mortgage in exchange for the notes aggregating One Thousand . . . Dollars and interest, and second, Was the transaction of such character that-the court is justified in finding that Rosina Schaefer was overreached by the defendant and that the entire transaction should be rescinded and set aside and the parties restored to their original position as of prior to December 10th, 1936, eviden.ee was introduced by the plaintiff in support of the first proposition only.” (Italics ours.)

On the question as to the mental condition of Rosina Schaefer the master found “that plaintiff has failed to prove by a preponderance of the evidence that said Rosina Schaefer was insane at and prior to December, 1936 and the master further finds from all of the evidence that said Rosina Schaefer was not insane in December 1936 or prior thereto, but that she was capable of transacting her own business affairs.”

On the question as to whether Rosina Schaefer had been fraudulently overreached the master found “there is no evidence in the record supporting the second proposition raised by the pleadings, namely, whether or not Mrs. Schaefer had been overreached in the transaction whereby the Seventy-five Hundred . . . Dollar note and mortgage securing same were delivered up by her in exchange for the twenty . . . Fifty . . . Dollar notes of Joseph McCarthy, Sr., and the right given Mrs. Schaefer to reside in the premises during the remainder of her life.”

It is necessary to set forth the evidence heard by the master bearing upon the mental condition of Rosina Schaefer somewhat fully. Plaintiff, Joseph Gr. D. Bailer, testified that he was a nephew of Eosina Schaefer ; that he was chief master mechanic at the Wisconsin Steel Works; that Mrs. Schaefer was for many years an alert, active and very exacting business woman; that beginning about July 1, 1933 he visited her three or four times a year and noticed that her memory was not as good as it had been theretofore and that she talked about “things in the past”; that she told him about visits from her husband notwithstanding that the latter died in 1915; that she was confused about when and where her sisters had died although she had attended their funerals; that in September, October, November and December 1936 he visited Eosina Schaefer and noticed that she was getting weaker, was less responsible and that she was confused; that he called upon her on December 11 or 12, 1936, at which time she said to him: “Something has happened to me but I don’t know what it is, Mr. McCarthy was here to see me and he took some papers and he' gave me some papers.”

Martin Bailer who was also a nephew of Eosina Schaefer testified that he was a boiler shop foreman; that he visited her regularly “through the years”; that in the last 10 or 12 years he visited her every couple of weeks; that in July 1936, he noticed that she was very much agitated; that in conversation with her her mind would wander; that she would say “you know, my mother was to see me last night, she was just alongside of the bed. I could just reach out and touch her”; that her mother had been dead for many years prior to that time; that when he visited Eosina Schaefer around Christmas 1936 she was very irrational ; and that upon one occasion Mrs. Schaefer told him that defendant’s son brought her down to the Continental National Bank where she had her safety deposit box and that after she produced her keys to said box and same was delivered to her McCarthy took her mortgage papers out of the box and put them in his pocket.

Laura McHugh, a grandniece of Bosina Schaefer, testified that she was a housewife; that she had known Mrs. Schaefer all. her life and visited her regularly twice a month for the last 10 years; that in July and August 1936 Mrs. Schaefer talked about visits from her husband, Adolph, who was dead and that she also talked about other things that happened in the past; that on December 12, 1936 she visited Mrs. Schaefer and the latter was very nervous and acted “funny”; and that Mrs. Schaefer told her on that occasion that Mr. McCarthy had taken her to the bank and after giving her a note took two other papers from her safety deposit box.

Frank Fennel testified that he was a coal man; that he knew Bosina Schaefer for 15 years and had visited her twice a month when he delivered coal; that on the occasion of each of his visits he engaged in conversation with her and that among other things she told him about visits from her deceased husband arid how he advised her on business problems.

Winifred Bowman testified that she had known Bosina Schaefer since June 1936 and that she had lived with her since November 4,1936; that from June to November 1936 she lived in an adjoining flat and had occasion to see and talk with Mrs. Schaefer every day • during that period; that “she acted very dull, and acted as if her mind had left her”; that she talked repeatedly about interest due her from the defendant and that “it wasn’t coming”; that she saw Mrs. Schaefer one hot day in July 1936 when she was unconscious in her kitchen with a fire burning in her stove; that Mrs. Schaefer was up all night looking for some papers on the night of December 12,-1936; that this was after defendant’s son had taken her to her safety deposit box; and that on that night after they were in bed Mrs. Schaefer kept saying that her husband was right at her ear talking to her; and that “Adolph was whispering right in my ear. ’ ’

The foregoing witnesses testified in plaintiff’s behalf. With the exception of Winifred Bowman, they all testified, after relating numerous conversations with Mrs. Schaefer and facts concerning her conduct, as well as the many opportunities afforded them to observe same, that in their respective opinions she was not of sound mind subsequent to the year 1933. Winifred Bowman first became acquainted with Mrs. Schaefer in June 1936. She was with her every day thereafter and since November 1936, she lived with and took care of her. She stated that from her conversations with and observation of Mrs. Schaefer it was her opinion that the latter was not of sound mind since June 1936. It should be stated at this point that, although Joseph M. McCarthy, Jr., testified that in his opinion Mrs. Schaefer was of sound mind on and prior to December 10, 1936, he corroborated plaintiff’s witnesses in respect to delusions suffered by her. He testified that she told him “lots of times . . . she told me years back” that she had visits from her husband Adolph; and that ‘1 she said he had come at night and that he would hold her hand and advise her on different problems she had.” In Orchardson v. Cofield, 171 Ill. 14, in defining an insane delusion the court said at p. 35: “An insane delusion is a fixed and settled belief in facts not existing, which no rational person would believe.” Mrs. Schaefer’s delusions and hallucinations as testified to by the witnesses constitute a most important element in the determination of her mental condition on and prior to December 10, 1936.

In addition to his son defendant presented the following witnesses to testify as to Mrs. Schaefer’s mental condition.

Anna Bushea testified that she lived in the same building in which Mrs. Schaefer lived and that she had seen Mrs. Schaefer three, four or a dozen times but was unable to fix any definite dates or periods as a basis for observation of Mrs. Schaefer’s mental condition. She was unable to relate the details of any conversation with her. Over plaintiff’s objection she was permitted to testify that in her opinion Eosina Schaefer was sane in 1936,1937 and 1938.

Edward M. Flavin testified that he was in the business of “liquidating foreclosed banks, making collections, etc.”; and that in 1931 he notarized Mrs. Schaefer’s signature to an extension agreement and again had occasion to see her in August 1937, at which time he did not enter into any conversation with her but was merely present with McCarthy, Jr., at the latter’s request to “just listen to what was going on.” His visit in August 1937 occurred after this suit was filed. Over plaintiff’s objection that this visit did not afford Flavin any opportunity to form an opinion as to Mrs. Schaefer’s mental condition on and prior to December 10, 1936 he was permitted to testify that in his opinion “she was mentally fit in 1937.”

Carl Giske testified that he had been employed by defendant as a plumber for 11 years; that he had conversations with Eosina Schaefer in 1935, 1936, 1937, 1938 and 1939. This witness was indefinite in his testimony as to the dates of his visits with Mrs. Schaefer and was unable to relate the subject matter of any conversation with her. Over plaintiff’s objection he was permitted to testify that “my opinion is that she had a clear mind. She was always the same that last year [1939] as she was when I first met her [1928].”

Arthur Pazzalli testified that he was a newsboy; that he had delivered the “Abendpost” to Mrs. Schaefer from September 1934 to September 1938; that he saw her on Saturdays when he made collections for the paper and she was able to make change; and that although he had conversations with her he could not tell exactly what they talked about. He gave no opinion as to the soundness or unsoundness of mind of Mrs. Schaefer but he did state that she always appeared to him to be the same.

A careful examination and analysis of the testimony of defendant’s witnesses who stated that in their opinion Mrs. Schaefer was of sound mind during the period subsequent to 1935 discloses that these witnesses did not detail conversations, incidents, facts and circumstances sufficient to warrant the assertion of their respective opinions upon the soundness or unsoundness of her mind. In Ginsberg v. Ginsberg, 361 Ill. 499, the court said at p. 507:

■“ . . . that unless the witness details conversations, incidents, facts and circumstances sufficient to impress the mind of a man of common experience that such witness has a knowledge of the testator’s mental condition, and that his opinion is not a guess, supposition or speculation, his opinion should not be received in evidence, citing Hettick v. Searcy, 278 Ill. 116, and other cases. (See also, Britt v. Darnell, 315 Ill. 385, 400.)”

The medical experts called as witnesses by both sides concurred in the opinion that Mrs. Schaefer was suffering from senile and arteriosclerotic dementia.

Dr. Thomas L. Fentress testified in plaintiff’s behalf that he examined Mrs. Schaefer on April 15, 1937, which was about four months after the transaction in question, and that as a result of such examination his diagnosis “was that she was suffering from a senile and arteriosclerotic dementia.” He further testified that “very commonly an arteriosclerosis involving the brain would result in dementia by insufficient circulation to the brain . . . insufficient blood to the brain cells, and it would result in damage to the brain cells proper”; and that' the “dementia features” of her condition as he found them on the day he examined her 11 are very insidious, they develop very slowly, and it could easily be ten years or more.”

In answer to a hypothetical question which assumed all the material facts in evidence Dr. Fentress testified that in his opinion the woman described in such hypothetical question “was of unsound mind [on December 10, 1936] ... I would arrive at that opinion by the evidence that you gave that this woman had a definite disturbance in her memory, in the first place. In addition to that, it was stated that she had hallucinations. In addition to that it would seem that there was a defect in the patient’s judgment. All of those points would indicate a definite mental .disturbance, that she was of unsound mind as you said in that question.” In answer to a further hypothetical question the witness stated that in his opinion the woman mentioned in such question did not have ‘ ‘ sufficient mental ability to transact ordinary business on December 10, 1936.”

Dr. Alfred P. Solomon testified as a medical expert in defendant’s behalf. Defendant’s counsel propounded to him a hypothetical question which failed to assume many of the material facts in evidence. In answer to such question the witness testified that in his opinion “the hypothetical person was not suffering from arteriosclerotic dementia from the evidence that I have to consider.” On cross-examination when he was asked a hypothetical question which assumed in addition to the facts assumed in defendant’s counsel’s question all the other material facts in evidence bearing upon Mrs. Schaefer’s mental condition, in stating his opinion, Dr. Solomon said that “at the time of this examination [by Dr. Fentress] this woman was showing the type of mistakes in judgment and actual anxiety about her weakness which I would thoroughly agree with Doctor Fentress, and from your hypothetical person I would have no question but that she was a senile arteriosclerotic dement.”

The rule governing our consideration of the facts herein and our determination as to whether the findings of fact which were made by the master and upon which the decree was based were proper is stated in Chechik v. Koletsky, 311 Ill. 433, where the court said at pp. 438 and 439:

“In a chancery case the facts are found by the court, and the master’s report, while prima facie correct, is of an advisory nature, only. All the facts are open for the consideration, in the first instance, of the trial court, and in case of an appeal, by the reviewing court. Without regard to the finding of the master upon any particular question of fact, the ultimate and final question in this court is, Was the decree rendered by the chancellor the proper one under the law and the evidence ? Corbly.v. Corbly, 280 Ill. 278; Kelly v. Fahrney, 242 id. 240; Fairbury Agricultural Board v. Holly, 169 id. 9.”

In our opinion the evidence shows clearly that Mrs. Schaefer was mentally incompetent on December 10, 1936, the date of the transaction in question and for some years prior thereto and that she is still in that condition.

As heretofore shown the master found that there was no evidence in the record to support plaintiff’s charge that Bosina Schaefer was overreached in the transaction of December 10, 1936.

The bare facts of that transaction as shown by the documentary evidence relating to same are sufficient in themselves to show that she was overreached. The gross inadequacy of the consideration given Mrs. Schaefer is alone sufficient to brand the transaction as unconscionable. This is not a case where the debtor had become insolvent and the creditor was endeavoring to retrieve as much as possible from one who was in financial distress. In so far as the record discloses the defendant was solvent and there is no good reason suggested as to why Mrs. Schaefer, if she was of sound mind, would consider accepting in payment of the $7,500 that he owed her on her secured note anything less than that amount. That a sane person would accept unsecured promissory notes aggregating $1,000, which did not even contain a power of attorney to confess judgment thereon and which were signed by defendant, in payment of the $7,500 secured note which defendant was also obligated to pay, is too ridiculous a proposition to merit serious consideration.

We come now to the testimony of" defendant’s son pertaining to the transaction and it should be borne in mind in considering same that he knew that Mrs. Schaefer’s condition precluded her from denying or contradicting anything he said. It should also be borne in mind that during his purported negotiations with her nobody but he and Mrs. Schaefer were present.

Joseph M. McCarthy, Jr., testified that about July 20, 1936, as agent for his father, he called upon Mrs. Schaefer at her home to discuss with her a settlement of her $7,500 mortgage; that he told her that he and his father would either give her a deed to the property or that they would buy her $7,500 mortgage for $1,000; that Mrs. Schaefer told him that she would think it over and let him know; that when he again called upon Mrs. Schaefer in August 1936 she had not made up her mind; that when he called in September, she agreed to accept $1,000 for her $7,500 mortgage but suggested that she preferred that payment of that amount be made to her in notes instead of cash; that he again called upon her in September to negotiate the exchange of her $7,500 note for notes aggregating $1,000; that on that occasion Mrs. Schaefer told him that she was not ready to go ahead with the deal and that she asked him to call later; that he next called upon her in October and because it was late in the day and the bank vault where her papers were kept was closed, he told her that he would come again; that he finally took Rosina Schaefer to the Continental Illinois Bank; that they went to the vault in said bank and that she took the “mortgage papers” out of her safety deposit box and gave them to him; and that he in turn gave her the twenty notes for fifty dollars each which were dated December 10,1936 and signed by his father.

It will be noted that defendant’s son testified that on July 20, 1936, which was about a week after the maturity of the $7,500 note, he offered Mrs. Schaefer in payment of same either a deed to the property or $1,000 in cash. A real estate expert who testified in defendant’s behalf stated that in December 1936 the market value of defendant’s property, including land and building, was about $2,700 or $2,800; and that the building was in poor condition and its “life expectancy is probably five years.” Taxes against the property had been permitted to become delinquent to the extent of $2,856.66 during the period from 1929 to 1936. Thus in proposing to Mrs. Schaefer that she accept a deed to the property in exchange for her $7,500 note defendant’s son was offering her something that he knew was worthless since the delinquent taxes exceeded the value of the property.

The testimony of defendant’s son that Mrs. Schaefer insisted upon receiving in payment of her $7,500 note, a series of notes aggregating $1,000 rather than $1,000 in cash is not only highly improbable but unbelievable. We cannot believe that she ever agreed to accept $1,000 in any form in payment of her $7,500 mortgage note.

It will also be noted that defendant’s son testified that Mrs. Schaefer was to be given her rent free as long as she lived as additional consideration for the sale of her $7,500 note. In our opinion his testimony in this regard is purely an afterthought. Nowhere in his testimony does it appear that he ever mentioned free rent to Mrs. Schaefer or that he entered into either an oral or written agreement with her that she would be permitted to occupy her apartment rent free for the. rest of her life. He did not testify that he agreed with her that she would not be required thereafter to pay rent but his testimony was to the effect that he and his father out of sheer generosity decided among themselves that they would permit her to occupy her apartment rent free “as long as she lived.” The injection of the matter of free rent could only have1 been intended to make the transaction, which must have had the appearance even to defendant and his son of being fraudulent on its face, appear a little less fraudulent. All that was given Mrs. Schaefer for her $7,500 note were the notes aggregating $1,000 heretofore referred to. This left a balance of $6,500 of the face value of her note for which no consideration was given. Even though it be assumed that as part of the transaction defendant’s son entered into an agreement with Mrs. Schaefer that she would be permitted to occupy her apartment “rent free as long as she lived,” which as we have shown was not the fact, she would have to live until she is more than 140 years old before her free rental would equal in amount the aforesaid balance of $6,500 of the.face value of her note, not including interest thereon. Then again how could defendant make a binding agreement with Mrs. Schaefer for “free rent as long as she lived” when there was no certainty that he would continue to own the property even for a short time or that it would be fit for occupancy. It must be remembered that the building had a “life expectancy” of only five years. The master was misled into finding that defendant agreed with Mrs. Schaefer to allow her “free rent” as additional consideration for the purchase of her $7,500 note and mortgage.

While Koch v. Streuter, 232 Ill. 594, involved an action for specific performance of a contract, we think that the language used by the court in that case is peculiarly applicable to the situation presented in the instant case. There the court said at p. 605:

“If, then, the contract itself is unfair, one-sided, unjust, unconscionable or affected by any other inequitable feature, or if its enforcement would be oppressive or hard on the defendant or would prevent his enjoyment of his own rights or would work any injustice, or if the plaintiff has obtained it hy sharp and unscrupulous practices, by overreaching, by trickery, by taking undue advantage of his position, by nondisclosure of material facts, or by any other unconscientious means, then a specific performance will be refused.”

We are mindful of the rule that a contract will not be declared void merely because of the advanced age of one of the parties thereto and of the further rule that mere inadequacy of consideration does not furnish sufficient ground for declaring a contract void. However, neither of these rules is applicable to this case. Here the bare facts of the transaction stamp it as fraudulent and the conclusion is irresistible that defendant’s son could not have perpetrated this fraud upon Mrs. Schaefer were it not for the fact that she was mentally incompetent. It would be difficult to conceive of a more irrational act than that of Bosina Schaefer in turning over her secured note for $7,500 and accepting in exchange therefor or payment thereof twenty unsecured notes for fifty dollars each, the maker of which was the same person who was obligated to pay her $7,500 note and who, in so far as the record discloses, was solvent and able to pay the $7,500 note.

As has been seen the property in which Mrs. Schaefer lived and upon which she held a first mortgage as security for her $7,500 note had no actual value. Defendant was delinquent as to the payment of said note. He certainly was not apprehensive about the possible loss of the property through foreclosure proceedings since as already shown it had no real value but it is fair to assume that he was apprehensive that a deficiency judgment would in all likelihood be entered against him if Mrs. Schaefer instituted proceedings to foreclose the mortgage securing her note or that judgment would be entered against him in an action brought by her on the $7,500 note itself. Therefore it is readily apparent why defendant through his son proceeded to procure' the $7,500 note from Mrs. Schaefer by unfair means.

This case presents a rather sordid picture when it is considered that Mrs. Schaefer was 86 years old, physically weak and with her mentality impaired and that defendant’s son and agent pursued her until he accomplished his purpose by procuring her note, which was the only resource or means of support that she had in the world, for the grossly inadequate consideration heretofore shown. No other conclusion is possible under the facts and circumstances shown by the evidence than that defendant and his son were actuated by ulterior motives.

We are not only of opinion that the findings of the' master as contained in his report and the findings of the decree based on said report are manifestly against the weight of the evidence but it is our further opinion that the decree of the chancellor was not proper under the law and the evidence.

For the reasons stated herein the decree of the circuit court of Cook county is reversed and the cause remanded with directions to enter a decree vacating and setting aside the entire transaction of December 10, 1936 as void. The decree entered by the trial court in conformity with, the views herein expressed shall contain appropriate findings and directions for the restoration of Mrs. Schaefer to her full and complete rights under her $7,500 note, the trust deed securing same and the extension agreement of July 19, 1931 entered into between her and defendant and his wife, Roseanna McCarthy. Such further proceedings may be had as are necessary to fully comply with the foregoing directions.

Decree reversed and cause remanded with directions.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Sullivan

license: Public Domain

text:
    Bella Tesk, Appellee, v. C. G. Sagerstrom et al., Appellants.
    Gen. No. 42,388.
    Opinion filed December 30, 1942.
    Eugene R. Ward and Charles B. Collins, both of Chicago, for appellants; James B. McKeon, of Chicago, of counsel.

      Irving S. Abrams, of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a decree which directed the secretary-treasurer of defendant union to pay $500 from the funds of said union as a death benefit to plaintiff, Bella Tesk, dependent widow of Jake Tesk, a deceased member of the union.

The complaint alleged in substance that Jake Tesk was a member in good standing of the Ice Men’s Union, Local No. 702, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America (hereinafter for convenience referred to as the union) from May 16,1919 to July 24,1941 and that he died on the latter date; that by virtue of certain paragraphs of the by-laws of union plaintiff, Bella Tesk, as the dependent widow of said Jake Tesk was entitled to receive $500 as and for a death benefit from the union; that the dues of Jake Tesk for the months of April, May, June and July of 1941 were paid on June 25, 1941; that “said deceased had been in the habit of paying his dues at such irregular times, the payments covering periods of from two to six months” and that the union by its officers ‘1 accepted such payments and by its acceptance and conduct has waived the forfeiture provisions contained in said by-laws ’ ’; and that plaintiff made demand upon the union and the secretary-treasurer thereof for the $500 death benefit but the defendants have refused to pay same. The defendant union’s by-laws pertaining to death benefits were attached to and made a part of the complaint.

Defendants’ motion to strike plaintiff’s complaint was denied. Defendants then filed an answer, the pertinent and material portions of which are as follows:

“The defendants and each of them admit that the plaintiff is the widow of Jake Tesk but deny that Jake Tesk was at the time of his death, a beneficial member in good standing of the defendant union as defined by the by-laws of said Union and deny that as the widow of Jake Tesk the plaintiff is entitled to a death benefit of $500 and assert the fact to be that according to said by-laws only dependent beneficiaries of beneficial paid up members who for one year previous to their death were in good standing, as defined by said bylaws are entitled to a death benefit of $500.
“The defendants admit that on June 25, 1941, dues of Jake Tesk, for the months of April, May, June and July, 1941, were paid to the Ice Men’s Union Local No. 702, and admit at various times said deceased paid dues at irregular times covering periods from three to seven months, but deny that said, defendant union, by the acceptance of said payments and by the conduct of it's officers, it waived any of the provisions of said bylaws ; and further assert the facts to be that from and after May 1, 1939, in every month wherein Jake Tesk failed to pay dues to the defendant union on or before the 10th of each respective month, as per the provisions of the by-laws, he was notified in writing that he had allowed himself to be suspended from any claim to sick, accident or death benefits; that dues must be paid on or before the 10th of each current month in order to obtain benefits, that he was further notified at each of said times to read the by-laws as all payments of sick, accident or death claims are governed thereby; that on many other occasions when he was in default in payment of dues, he was notified verbally to the same effect.
“The defendants further deny that the acceptance of delinquent dues on June 25, 1941 or at any time previous thereto, or the conduct of the officers of said defendant union, after the notice herein referred to, constituted a waiver of the provisions of said by-laws. That said payments were accepted, only after service on said deceased of the aforesaid notices in writing. That said written notices were specific notices to the deceased that the provisions of the by-laws would not be waived and that said payments were accepted, subject to the provisions of said by-laws.”

Plaintiff’s motion to strike defendants’ answer was denied and the cause was heard upon plaintiff’s complaint, defendants’ answer thereto and the following stipulation of facts:

“1. That the plaintiff is the widow of Jake Tesk, deceased.
“2. That Jake Tesk died on the 24th day of July, A. D. 1941.
“3. That for some years previous to his death Jake Tesk was employed by the California Ice & Coal Company as a driver.
“4. That on the 6th day of May, A. D. 1919, Jake Tesk was initiated in the defendant organization and since that time paid dues to said organization in various amount's and at various times up to and including dues for the month of July, A. D. 1941.
“.5. That the Icemen’s Union .Local No. 702 is an unincorporated association of individuals affiliated with the American Federation of Labor.
“6. That its membership is limited to persons working in the ice business and to persons who do not own or operate more than two yearly running wagons.
“7. That said Union was organized for the purpose of protecting the persons constituting its membership in their line of employment, and for the improvement of working conditions, wages and hours of employment of its members.
“8. That during the Year 1941 and the month of July, 1941, the membership of .said Union never exceeded 2,000.
“9. That the printed copy of the death benefit bylaws incorporated in the answer filed by the defendants contains the true and correct by-laws of the defendant organization in reference to death benefits in force and effect from and after May 1, 1939, and in force and effect at the time of the death of Jake Tesk.
“10. That dues as per the terms of the by-laws in force and effect after May 1, 1939, the date of the last revision of the by-laws of said organization, were Three Dollars ($3.00) per month, payable monthly on or before the 10th day of each current month.
“11. That monthly dues of Jake Tesk for the period from March [May] 1,1939, up to and including the month of July, 1941, their amount, their due date and the date paid, are as per the following schedule:
“12. That on each occasion since May 1, 1939, that Jake Tesk failed to pay his dues to said defendant organization on or before the 10th day of each current month, as provided by the by-laws of said organization, a notice substantially in form as follows [was mailed to him] :
“Ice Men’s Union, Local No. 702.
June 19, 1939
Official Notification
Book No. 1874
Mr. Jake Tesk
Dear Sir and Brother
I beg to call your attention to the fact that you are in arrears for dues to Local No. 702 for the sum of $6.00 including this month.
Your present standing indicates that You Have Allowed Yourself to Become Suspended from any ' claim to Sick, Accident or Death Benefits.
Dues must be paid on or before the 10th day of each current month in order to obtain benefits.
-Pay Up Now-Keep Paid Up in the Future
Bead the By-Laws, as All Payments of Sick, Accident or Death Benefit Claims Are Governed Thereby.
C. G. Sagerstrom,
S ecretary-Treasurer. ’ ’

The pertinent portions of the by-laws of the defendant union pertaining to death benefits are as follows:

“1. Death benefits, as hereinafter outlined, will be paid to dependent beneficiaries of deceased members under the following provisions and qualifications, which are established, not as an insurance company, but as a contribution from a voluntary association, not organized for profit.
“2. Dues shall be $3.00 per month, payable monthly, on or before the 10th day of each current month.
“3. In accordance with Section 2 of this Article, a member in good standing entitled to death benefits, is one who has paid each current month’s dues on or before the 10th day of each current month for a continuous period as specified in Section 4.
“4. To dependent beneficiaries of good standing beneficial members who die under the above provisions and qualifications, the Union will pay as follows:
“ (1) No member shall be entitled to death benefits until he has been a member for six (6) months after Initiation, acceptance of Transfer Card, Withdrawal Card or by Reinstatement through payment of back dues.
(2) To beneficial paid-up members who have been continuously in good standing for from six (6) months to one (1) year prior to death, a death benefit of $250.00 will be paid.
“ (3) To beneficial paid-up members who have been continuously in good standing for one (1) year previous to death, a death benefit of $500.00 will be paid.
£ £
“7. No death benefit shall he paid if member dies while a nonbeneficial member. A nonbeneficial member, who is not in good standing at time of death, cannot have delinquent dues paid for him so as to entitle beneficiary to -death benefits. The payment and acceptance of delinquent dues from a nonbeneficial member shall not operate as a waiver of any of the provisions of these By-Laws, but shall be a warranty that he is in good health at the time of such payment.
Í £
“9. No death benefits can be claimed on due books which are classed as nonbeneficial and are so recorded upon the ledger and due book.”

The material findings of the decree are as follows:

“That the plaintiff, Bella Tesk, as widow of Jake Tesk, said deceased member of said Local Union #702, was and now is entitled to the sum of $500.00 as and for death benefits accruing and payable to her in accordance with the provisions of the By-Laws of the Ice Men’s Union, Local #702.
“That the continued acceptance of dues by the said Ice Men’s Union, Local #702 from the said Jake Tesk at irregular and intermittent intervals of his lifetime, constituted a waiver of said Ice Men’s Union, Local #702 of the strict provisions of the By-Laws requiring the payment of dues by members on or before the 10th day of each month as they accrued and denying sick or death benefit to any member unless his dues shall be paid oil or before the 10th day of each month as they accrued. ’ ’

The real question presented for determination is whether the conduct of the defendant union and its officers, under the facts and circumstances as shown by the evidence, constituted a waiver of the provisions of the by-laws which defendants assert bar plaintiff from recovery.

It is conceded at the outset that the by-laws of the defendant union were a part of the contract between it and Tesk and it is agreed that Tesk did not comply strictly with the terms of said by-laws in respect to the payment of his dues. Therefore, unless the facts and circumstances in evidence show that the defendant union waived compliance by Tesk with the provisions of its by-laws pertaining to the payment of monthly dues, plaintiff is barred under such provisions from recovery of the $500 death benefit.

Jake Tesk was a member of the union for 22 years and his dues had been paid in full from the time he joined the union May 6, 1919 until he died July 24, 1941. However, as shown by the schedule heretofore set forth, his dues were paid irregularly and not “on or before” the 10th day of each month for practically all of the months from May, 1939 to July, 1941.

Defendants insist that plaintiff is not entitled to recover since Tesk was not a beneficial member of the union in good standing at the time of his death because he had not “paid each current months dues on or before the 10th day of each month for a continuous period” of at least one year prior to his death and because he had not been “continuously in good standing for . . . one . . . year previous to his death” as provided in the by-laws. There is a further provision in the by-laws that “no death benefit shall be paid if member dies while a non-beneficial member.” Plaintiff asserts that defendant union waived compliance with these provisions of the by-laws by reason of its acceptance of Tesk’s dues as and when they were paid and by reason of its practice in so doing.

Defendants admit in their brief that “on many occasions courts have held that the receipt of assessments after default in payment is a common form of waiver,” but contend that whether such acceptance constitutes a waiver depends altogether on the facts and circumstances of each individual case.

It has been repeatedly held that neither an insurance company nor a mutual or fraternal benefit association will be permitted to treat an insurance policy or a benefit certificate as alive and in full force and accept premiums or assessments from the insured over a period of years in violation of suspension and forfeiture provisions of the contract of insurance until death occurs, and then for the first time seek to avoid the insurance policy or benefit certificate and escape its liability. It is also the established rule that insurance companies and mutual benefit associations will not be permitted to escape liability by reason of conditions in their insurance policies or benefit certificates which provide for forfeiture for nonpayment of premiums or assessments when due, where their course of dealing with their members has led them to believe that the provisions for forfeiture would not be relied upon.

In Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194, the court said, at p. 200:

" Where the practice of the company, and its course of dealing with the insured, and others known to the - insured, has been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief. ’ ’

(To the same effect are Harris v. Sovereign Camp, Woodmen of the World, 374 Ill. 47; Dromgold v. Royal Neighbors of America, 261 Ill. 60; Metropolitan Safety Fund Accident Ass’n v. Windover, 137 Ill. 417; Routa v. Royal League, 274 Ill. App. 152; and Tecumseh Mut. Life Ass’n v. Woodman, 99 Ill. App. 546.)

It has frequently been held that the foregoing principles of law applicable to insurance companies and mutual and fraternal benefit associations are equally applicable to labor unions under whose constitutions or by-laws death benefits are payable. In Riddle v. General Union of International Brotherhood of Blacksmiths, Drop Forgers & Helpers, 309 Ill. App. 163, the constitution of the defendant union provided for the payment of death benefits for those members who were in good standing at the time of their death and for at least six months prior thereto. The constitution also provided that the dues of the members were payable in advance prior to the first day of each month but it appeared that the dues of the deceased member therein had been accepted by the union although never paid in advance. In affirming the judgment in that case in favor of the beneficiary the court said at pp. 165 and 166:

“Appellant claims that the deceased at the time of his death was not in good standing because the December and January dues had not been paid in advance. The receipts showing payment show clearly and conclusively that appellant adopted a different system of payment from that which it claimed, — that is, in advance; that it accepted the dues of the deceased almost as he wished to pay them, — never in advance, always in arrears, and when he paid 2 months at a time instead of 1 it still left him in arrears. Notwithstanding this the appellant accepted his money and kept him as a member in good standing of its union, and continued to accept the money time and time again under this different system, which apparently met the convenience of the deceased.

“We have so often held that this course of conduct waives the payment prescribed in insurance policies and other like obligations that it seems futile to repeat it here. In Benoist v. Business Men’s Assur. Co. of America, 299 Ill. App. 571, we said :

“ ‘These 12 quarterly payments which were paid by the insured and accepted by the defendant appellant would make a period of about 3 years. Running over that length of time, and accepting the payments when they were past due without any apparent objection and without any word to the insured looking towards forfeiture, or any steps in that direction, seems to us by consent and agreément and practice to establish a different system of payment than that provided in the policy. We are, therefore, of the opinion that the defendant waived the payments as provided in the policy and consented to a different system of payment which would estop it from saying now that the policies were not in continuous force. This conclusion finds support in the case of Illinois Life Ass’n v. Wells, 200 Ill. 445, 65 N. E. 1072, 1075, in which it was said “If payment was actually made, even though not according to the terms of the policy, the company could certainly not thereafter insist upon a forfeiture for a failure to pay promptly. ’ ”

“Practically this same thing was reiterated by us in Harris v. Sovereign Camp of Woodmen of the World, Inc., 302 Ill. App. 310, and Bayci v. Rango, 304 Ill. App. 203. In Harris v. Sovereign Camp of Woodmen of the World, 374 Ill. 47, our Supreme Court said: “ ‘We approve of the judgment of the Appellate Court on the only question which we have power to review. In Dromgold v. Royal Neighbors of America, 261 Ill. 60, we held that a subordinate lodge or council is the agent of the supreme lodge, notwithstanding the declaration of any by-law to the contrary; that where a member is required to pay dues to the local lodge, the local lodge, in that matter, is the agent of the supreme lodge, and is the authority with whom members must deal, and upon whose actions, within the scope of its authority, the members may rely; that if a benefit society permits a subordinate lodge and its officers to act in such a manner in receiving dues that the member is justified in believing that the reasons for forfeiture specified in the by-laws have been waived, the society cannot set up such a forfeiture nor rely thereon as a defense to a suit on the benefit certificate. This case is so close to that one on the facts that we might quote much of the opinion here, but deem it unnecessary.’ “These decisions, together with many others that might be cited would seem to have settled once and for all the question of waiver of payment in such cases.”

(Bayci v. Bango, 304 Ill. App. 203 and Olszewshi v. Fitchie, 287 Ill. App. 452, are cases which involve labor unions and they are to the same effect.)

It will be noted that the facts in the Biddle case are very similar to the facts here and we think that case is squarely in point as to the situation presented in the instant case.

Defendant union argues that the rules enunciated in the foregoing cases are not applicable to this case because of the character of its organization, the nature of its by-laws and its course of dealing with Tesk. It is claimed that because its by-laws specifically state that “death benefits . . . will be paid . . . not as an insurance company, but as a contribution from a voluntary association,” the defendant union is not governed by said rules. In other words that death benefits payable by it are in the nature of a reward for the prompt payment of dues. In every case cited it was the intention and purpose of the organization involved to encourage and persuade its members to pay their dues promptly. In our opinion no matter how the ‘ ‘ death benefits ’ ’ are characterized they are in the nature of insurance and are considered as such by the ordinary member of a labor union. As has been seen the rules under consideration are applicable alike to labor unions, mutual benefit associations and insurance companies.

While there is no provision in the by-laws pertaining to death benefits for the suspension or expulsion of a member for failure to pay his dues promptly, there is a provision which indicates that a delinquent member may be reinstated merely “through payment of back dues.” There is no question but that Tesk was reinstated as a member of the union and that he was in good standing at the time of his death. But the defendant union urges that it required more than membership in the union and payment of dues to entitle a dependent beneficiary of a member to the payment of a death benefit. It asserts that in addition it must be shown that Tesk paid his dues in accordance with the by-laws on or before the 10th day of each month continuously for one year or more to entitle his beneficiary to the payment of the death benefit claimed in this case. While the provisions of the by-laws heretofore set forth, which relate to the payment of dues and which classify the members as beneficial or nonbeneficial, are not strictly speaking provisions for forfeiture, they are such in effect and it is conceded that they may be waived in a proper case. Considered in their entirety said by-laws are directed to the same end as áre the forfeiture provisions of insurance policies and mutual benefit certificates. They are intended to deprive the beneficiaries of members of the union of death benefits because of the failure of such members to pay their dues promptly. That such provisions for prompt payment, regardless of how stringent they may be, may be waived by the union by its consenting to a different system of payment is unquestionably the law of this State.

Defendants stress the importance of the notice sent to Tesk on each occasion when he did not pay his dues on or before the 10th day of the month as indicating “an intention on the part of the association to enforce the by-laws and to accept past dues subject to all the conditions and limitations therein contained.” These notices stated that Tesk was in arrears; that “your present standing indicates that You Have Allowed Yourself to Become Suspended from any claim to Sick, Accident or Death Benefits”; “Keep Paid Up in the Future”; “Bead the By-Laws, as All Payments of Sick, Accident or Death Benefit Claims Are Governed Thereby.” Fairly construed, the most that can be said of the foregoing statements contained in the notices is that they were intended as reminders of the bylaws relating to the payment of dues. In spite of such reminders Tesk’s dues were accepted as and when he paid them. There is no evidence in the record that.he was ever told when he paid delinquent dues and same were accepted by the union that he was a non-beneficial rather than a beneficial member. As was said in Benoist v. Business Men’s Assur. Co. of America, supra,'“accepting the payments when they were past due without any apparent objection and without any word to the insured looking towards forfeiture, or any steps in that direction, seems to us by consent and agreement and practice to establish a different system of payment than that provided in the policy.” It will be noted that these notices also included the admonition "Pay Up Now.” This admonition which almost immediately followed the statement in the notices that Tesk had allowed himself "to become suspended” from any claim to “Death Benefits” because he was in arrears in his dues may well have caused him to believe that if he paid his back dues the provisions of the by-laws as to the prompt payment of dues would be waived. In any event his back dues were accepted over a period of more than two years prior to his death and the method of payment provided in the by-laws was thereby waived.

The defendant union claims and one of its by-laws provides that if a member became delinquent by reason of his failure to pay even one month’s dues on or before the 10th day of that month his status immediately became that of a non-beneficial member and that such status continued until the delinquent dues were paid and dues were thereafter paid on or before the 10th day of each month for at least six months or as in the instant case for at least one year and that only by complying with such provision could a member be restored to the status of beneficial membership. The dues were the same, three dollars a month, whether the membership was beneficial or non-beneficial. According to defendants the rights of a non-beneficial member consisted of protection in his employment and improved working conditions, increased wages and decreased hours of employment, enjoyed by him as the result of his membership in the union, and the beneficial member enjoyed these same rights and in addition thereto the right to have his beneficiary receive a death benefit. It would serve no useful purpose to discuss at length defendants’ contention in regard to the by-law just above referred to, since we have already held that its provisions could be and were waived. In passing upon a similar contention in Olszewski v. Fitchie, 287 Ill. App. 452, the court said at p. 457:

“From the by-laws as we have them before us it is impossible to separate the rights of a member of the union from the benefits to be derived by reason of the sick and death benefit. It may be true that membership in the union carries with it the right to take advantage of the collective bargaining forces of the union relating to wage scales and conditions of employment, still when a member joined there was held out to him that by the terms of the by-laws, certain sick and death benefits were payable as such upon the conditions provided therein.”

Neither of the parties discuss or even mention in their briefs section 9 of the by-laws pertaining to death benefits, which section we think is highly significant. It provides:

“No "death benefits can be claimed on due books which are classed as non-beneficial and are so recorded upon the ledger and due book.”

It is apparent that the defendant union failed to comply with this by-law. If it had so complied its secretary-treasurer would have indicated in writing in Tesk’s due book that he was classified as a non-beneficial member because of his failure to pay his dues promptly and the secretary-treasurer would also have made a record in the ledger of the union that Tesk was classified as a non-beneficial member. In so far as the record discloses Tesk was not classified as a non-beneficial member either in his due book or in the union’s ledger and it is fair to assume that if he was so classified in said due book or ledger such books would have been presented in evidence by the union. In the absence of such a showing it is also fair to assume that Tesk was considered by the union a beneficial member until the time of his death. The union’s failure to observe this by-law is another factor, which considered with the union’s acceptance of Tesk’s dues in the manner heretofore indicated and contrary to the method of payment prescribed in its by-laws, shows conclusively that as to Tesk the union waived the provisions of its by-laws pertaining to the payment of his monthly dues on or before the 10th day of each month. The union could not recognize Tesk as a beneficial member until he died and then set up as a defense to his beneficiary’s claim for his death benefit that he was a non-beneficial member. As was said in Riddle v. Brotherhood of Blacksmiths, supra: “The facts in this case show to our mind that if deceased had lived and sent in his payment at the date he died, instead of dying, the appellant would have willingly received it. It was only when ‘pay-day’ came that it fell back upon its strict adherence to the rule that dues must be paid in advance.” Regardless of how clear and explicit the provisions of the by-laws of the defendant union are as to the manner in which a member’s dues must be paid in order to retain or re-establish such member’s status as a beneficial member, the law is firmly established that said provisions may be waived by the conduct of the union and its officers. We are impelled to hold that by its conduct the defendant union waived the strict provisions of its by-laws as to the manner in which Tesk’s dues were payable and that his dues having been paid in full at the time of his death plaintiff beneficiary is entitled to recover his death benefit.

For the reasons stated herein the decree of the circuit court of Cook county is affirmed.

Affirmed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Lucille S. Kos, Minor, by Michael Kos, Her Father and Next Friend, and Michael Kos, Plaintiffs, v. Catholic Bishop of Chicago et al., Defendants. Lucille S. Kos, Minor, by Michael Kos, Her Father and Next Friend, and Michael Kos, Appellants, v. Catholic Bishop of Chicago and Theodore Czastka, Appellees.
    Gen. No. 41,572.
    Opinion filed December 30, 1942.
    Samuel A. Harper, Walter Sczudlo, Gustave J. Blasi and Thomas S. Stearns, all of Chicago, for appellants.
    Heth, Lister & Flynn, of Chicago, for appellees; Thomas E. Griffin, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs appeal from an order of the superior court allowing the motion of the Catholic Bishop of Chicago, a corporation sole, and Theodore Czastka, its agent, to strike the amended complaint, and dismissing the suit as to them, allowing the action to stand only as to Robert Sliwa and Leonard G-urtowski, two minors, the remaining defendants.

The amended complaint -consists of three counts, the first of which alleged that plaintiff Lucille S. Kos, age six and one-half years, at the solicitation and invitation of the Catholic Bishop, was enrolled as a student at St. Wenceslaus Parochial School in Chicago, owned and operated by the Catholic Bishop through its agent, Theodore Czastka; that there was set apart for the convenience of the students a classroom in which they might eat the lunches which they brought with them; that the defendants knew said room contained heavy and dirty objects, including a handbrush used for cleaning the floor, and also knew generally, or could have known, that the older boy pupils, particularly defendants Robert Sliwa and Leonard Gurtowski, while on and about the school premises, habitually fought, quarreled and “rough-housed” with each other and carelessly and negligently threw objects at each other and at other pupils, and knew, or by the exercise of prudence should have known, that it was dangerous and unsafe for plaintiff Lucille S. Kos to eat her lunch in said room with these older pupils unless it was constantly supervised; that they failed and refused to supervise the room and permitted the handbrush to lie loose and unconfined in the room; that Lucille and the two boys had gone to the room on the day of the accident to eat their lunches and while there defendant Robert Sliwa threw the handbrush ■ at defendant Leonard Gurtowski, hitting plaintiff Lucille S. Kos, and causing injury to her right eye.

Count 2, alleging substantially the same facts, is directed against the Catholic Bishop alone, and alleges that a contract existed between him and plaintiffs by the terms of which the Catholic Bishop agreed, for a con:"deration, to furnish reasonably safe premises to Lucille, and to look after her morals, health and safety while in and about the school; that Lucille promised and agreed to abide by the rules and regulations of the school, and complied with her undertaking, but by reason of the facts stated, the Catholic Bishop breached the agreement.

Count 3, which is not the subject matter of this appeal, alleges negligence on the part of the two defendants, Robert Sliwa and Leonard Gurtowski, against whom plaintiffs’ cause of action is still pending.

Plaintiffs take the position that count 1 of the amended complaint states a good cause of action against the Catholic Bishop and its agent because it was actionable negligence (1) to permit the brush to remain in the lunchroom where it could be thrown by a mischievous boy, and (2) to permit the pupils to eat their lunches without supervision; and their counsel say that because Illinois has followed the doctrine that a school operated as a charitable institution is not liable for its torts, and a public school, partaking of the immunity of the sovereign State, is also not liable, they have been unable to find in this State any decision discussing specifically the duty to his pupils of a person who owns, maintains or operates a school. Defendants’ counsel add that they likewise have been unable to find any such authority. However, plaintiffs cite, without discussion, numerous cases in other jurisdictions wherein the subject of supervision of school children is considered. Most of these cases involve inherently dangerous instrumentalities or attractive nuisances against which the authorities failed to provide protection, and the courts considered the necessity for supervision in the light of specific dangers which had been brought directly to the attention of the school authorities. Thus in Buzzard v. East Lake School Dist., 34 Cal. App. (2d) 316, 93 P. (2d) 233, brought under a California statute, the instructor of a class in physical education had a group of girls on the school premises, engaged in a game called “kick-the-can.” Two boys rode their bicycles in and out among the girls in the presence of the instructor, who did nothing about it, and ultimately one of the boys ran into and injured the plaintiff. With respect to these circumstances, the court pointed out that the boys had been in the habit of riding their bicycles among the girls for several months prior to the time of the accident, with the full knowledge of the instructor, and that no effort had been made to stop that dangerous practice, and then proceeded to distinguish the facts in that case from those in which the school authorities had no knowledge of the dangerous practice, and said: “Each of the cases relied on by the appellant were properly determined upon the particular facts involved therein. They may be readily distinguished from the circumstances upon which the present case was decided. Most of the last cited cases were founded on claims for injuries sustained by pupils on account of the conduct of other students engaged in playing games on the school premises, over which the supervisors of sports had no control, and which acts could not have been reasonably anticipated.”

In Jackson v. County Council and Chappell, 28 T. L. R. 359, aff’g 28 T. L. R. 66, another case cited by plaintiffs, a contractor allowed a truck, loaded with a mixture of sand and lime, to remain in the corner of a school playground. The master of the school, considering it dangerous, had given instructions to the caretaker to have it removed, but his instructions were not obeyed. On trial the master admitted that he considered the materials left in the playground as dangerous to the pupils, and for that reason had ordered them removed, and it was on his admission that the court of appeals in England affirmed a finding for plaintiff, saying that the defendant admitted that the thing that caused the injury was a dangerous instrument. In that respect it was obviously different from the handbrush in the case at bar.

In Thompson v. Board of Education of City of New York, 280 N. Y. 92, 19 N. E. (2d) 796, a mischievous boy, who was running down a stairway during class dismissal and while the teacher was in another part of the building, injured plaintiff, and finding the issues for defendant, the court observed that “Appellant could not personally attend to each class at the same time, nor was any such duty imposed upon him.”

In Weldy v. Oakland High School Dist. of Alameda County, 19 Cal. App. (2d) 429, 65 P. (2d) 851, a student was injured by a glass bottle thrown by another student sitting behind him in the football stands. Plaintiff there charged that the football game was under the direction and management of defendant school, that the students sitting behind plaintiff had been engaged in rowdyism and were throwing various objects at those seated below; that the school district negligently and carelessly failed to exercise supervision over the conduct of the students, and as a result thereof, plaintiff was injured. The court held that the complaint failed to state a cause of action because it did not allege that the school authorities had knowledge of this specific rowdyism, and having such knowledge, failed to stop it, and held that the law does not make school authorities insurers of the safety of pupils at play or elsewhere.

Also in California, in Whiteford v. Yuba City Union High School Dist., 117 Cal. App. 462, 4 P. (2d) 266, a pupil deliberately threw an orange at plaintiff, injuring him. The court held that the school was not liable; that oranges and such missiles could doubtless be found on any school ground; and that defendant was not liable because plaintiff’s injury was the result of the deliberate act of one of its pupils.

In the case at bar the amended complaint merely avers that the brush in question was “a heavy, dirty object, to-wit: a hand brush used for cleaning the floor”; it does not state where the brush was kept, whether on the floor, the window sill, in a cupboard or on a desk, and it may therefore fairly be assumed that the brush was of the ordinary type, kept in a place where it would be available for use in cleaning the floors after the lunch period. No cases are cited imposing upon the school authorities the duty of removing objects regularly used and necessary in maintaining the school premises, and as defendants’ counsel point out, if such duty were imposed by law, then inkwells, erasers, pens, books, bottles and other objects could never be left in a schoolroom, but would all have to be removed on the theory that some mischievous boy might convert them into harmful objects by throwing them at other pupils. The brush in question was inherently a harmless object, necessarily used for cleaning the floors, and we fail to conceive how its mere presence in the lunchroom could be held to render the room unsafe or constitute negligence on the part of defendants.

The contention that defendants are rendered liable because of their failure to exercise supervision over the pupils at the time they were eating their lunches is likewise untenable, and no cases are cited holding that such a duty exists. If school authorities were obliged to stand guard over children on the school premises at all times to protect them against the possible acts of mischievous pupils, it would be fairly impossible to conduct schools without peril to the authorities who maintain and operate them.

Moreover, as defendants’ counsel argue, the failure of defendants to remove the brush in question or to provide supervision of the pupils during the lunch hour was not the proximate cause of plaintiff Lucille Kos’s injury; it was brought about through the intervening act of Robert Sliwa, who is alleged to have deliberately thrown the brush. Cases cited by defendants sustain this contention. In Malmberg v. Bartos, 83 Ill. App. 481, defendant, a storekeeper, had unloaded ice from a wagon in front of Ms store and was using an ax to chop the ice before carrying it in. He left the ax lying on the sidewalk between trips. Plaintiff, a girl seven years old, was attracted to the scene, along with a crowd of children, and wanted a small piece of chipped ice. Defendant’s son ordered her not to take it. Plaintiff persisted, however, and defendant’s son picked up the ax and chopped off her finger. Plaintiff there made contentions similar to those urged in the case at bar, but the court in affirming a directed verdict for defendant, held that although an ax may be a dangerous instrument in the hands of a child, it would not necessarily follow that the defendant was guilty of negligence, or if he was, that his negligence was the proximate cause of the injury; that the presence of the ax itself did not serve to create any danger to children or to passers-by, and the mere act of leaving it temporarily upon the sidewalk was not negligence in and of itself; and concluded that the cause of the injury was not that the ax was in reach of the boy, but that it was his wilful intention to injure the plaintiff for trying to pick up a piece of ice. We think that decision is applicable in principle to the circumstances of the case at bar. Taylor v. Kelvin, 121 N. J. L. 142,1 A. (2d) 433; Hartnett v. Boston Store of Chicago, 185 Ill. App. 332, and Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, are to the same effect. From these circumstances we conclude that count 1 of the amended complaint stated no cause of action against these defendants.

Under count 2 plaintiffs contend that the corporation defendant undertook, inter alia, to furnish reasonably safe premises and thereby incurred a contractual duty; that it breached the contract by failing to remove from the lunchroom the brush in question, and by failing to provide supervision of the pupils during the lunch hour; that it thereby became liable for all damages which naturally arose from a breach of the agreement which the parties could be presumed to have contemplated as naturally arising from such breach; and that it was for the jury and not the court to determine whether the pleaded facts constitute a breach of its contractual obligation by defendant corporation. In Armstrong v. Wesley Hospital, 170 Ill. App. 81, which is one of three cases relied upon by plaintiffs in support of these contentions, the court held that a charitable institution, although exempt from tort liability, might be held for a breach of its contract, and it approved the difference noted in Ward v. St. Vincent’s Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784 (another case cited by plaintiffs), between the rule in an action to recover for personal injuries occasioned by the negligence of an employee of a charitable institution, and an action to recover for the breach of an agreement. The question involved in the Ward case was whether the court might determine, as a matter of law, if the alleged facts constituted a breach of contract. The issue was whether or not the breach had been proved, and the court held that to be a question for the jury.

The law is too well settled to require the citation of authority that a court may determine whether or not, as a matter of law, the facts alleged in a complaint constitute a breach of an agreement. We think that plaintiffs’ second count fails to state a cause of action because the intervening deliberate act of Robert Sliwa, and not the breach of defendants ’ contract to provide reasonably safe premises, was the proximate cause of Lucille Kos’s injury. In these circumstances the court had the right to determine, as a matter of law, whether or not the facts alleged in the amended complaint constituted a breach of contract and thus stated a cause of action against defendants. The court determined this question adversely to plaintiffs. The judgment is affirmed. Judgment affirmed.

Sullivan, P. J., and Scanlan, J., concur.


text:
    Fidelity and Casualty Company of New York, Appellee, v. Heitman Trust Company, Appellant.
    Gen. No. 41,992.

      Opinion filed December 30, 1942.
    Rehearing denied January 20, 1943.
    Hershenson & Hershenson and James B. McKeon, all of Chicago, for appellant.
    William Shapiro and Malcolm Mecartney, both of Chicago, for appellee; James J. Kilgallon, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the ' court.

Heitman Trust Company appeals from a decree of the superior court which required it to pay the Fidelity & Casualty Company of New York, as surety on a guardian’s bond, the sum of $23,114.59, representing principal and interest paid by plaintiff as subrogee to the rights of the ward for losses incurred through the sale by defendant to the guardian’s estate of defaulted bonds, which were held to constitute a participation by defendant in a breach of trust and a fraud upon the probate court, and to accept from plaintiff, upon payment of said sum, the bonds which had been purchased from defendant by the guardian of the estate.

There is substantially no dispute as to the salient facts alleged in the pleadings and disclosed upon the hearing before the master, to whom the cause had been generally referred. Anna C. Loker, who died December 1, 1924, by will directed that Elizabeth Kilbert be appointed guardian of the person and estate of Mrs. Loker’s daughter, Wilma E. Kinney, who was then a minor. As such guardian, Elizabeth Kilbert executed a bond, with plaintiff as surety, and took possession of the assets constituting the minor’s estate, which consisted principally of various secured notes aggregating some $35,000. Upon retirement of matured securities and in fulfilment of her duties as guardian to reinvest the moneys accumulated in the estate, Elizabeth Kilbert purchased from Heitman Trust Company numerous first mortgage bonds, issued and underwritten by defendant on various apartment buildings in Chicago. From the time she qualified as guardian on January 12, 1925, until she was discharged March 25, 1933, she dealt with and reinvested the moneys of the estate with the Heitman Trust Company, acting through its principal officers Fred P. Heitman and Philip C. Lindgren, both of whom knew that the investments of the guardian were made with the estate funds for the purpose of the estate and as part of the duties of the guardian. In making these purchases she presented to the probate court from time to time a series of petitions alleging that she had on hand various sums belonging to the minor and asking leave to invest the available amounts in bonds of specified apartment buildings on which the Heitman Trust Company had underwritten the entire issue.. All these petitions, although ostensibly presented by the guardian, were prepared in .the office of Heitman Trust Company from information furnished by one of its officers, and filed by one of its representatives in the names of various attorneys whose names appeared on the petitions and orders, without their knowledge or consent. In each instance the petition, signed and sworn to by the guardian, purported to allege the then value of the apartment building in question, its outstanding indebtedness and the annual rental thereof, and representations were made that the property was ample security for the loan outstanding and that such loan did not exceed one half the value of the real estate securing it. By means of these petitions the guardian had leave to invest in securities aggregating $24,000.

Wilma E. Kinney attained her majority November 23, 1932, and March 24, 1933, the guardian presented and filed her final account in the probate court, which was duly approved. After being discharged from her official duties, she turned over to her ward the assets of the estate, consisting of the various bonds purchased from Heitman Trust Company, for which the ward gave the guardian a written receipt. On the following day the ward executed a power of attorney to her former guardian, which was prepared and executed in the office of the Heitman Trust Company, giving her power to collect principal and interest on said bonds while the former ward was away at school. That power of attorney was revoked April 10, 1934, and notice of the revocation was communicated to Heitman Trust Company by letter of that date.

Following the approval of the guardian’s final account and while Elizabeth Kilbert was acting under the power of attorney executed by her former ward after she attained her majority, the guardian and ward executed some seven forbearance agreements addressed to Heitman Trust Company, substantially in the same form, all written on the letterheads of Heitman Trust Company and prepared and signed in its office, extending the maturity of payments due under various bond issues. The master and the decree found that the bonds mentioned in the forbearance agreements were in default at the time the agreements were made, but that Wilma E. Kinney had no knowledge of such defaults, and the record sustains these conclusions.

After the ward had attained her majority, Heitman Trust Company made certain payment of principal or interest, or both, on bonds which had previously been turned over to her as part of the securities to which she was entitled and which had been purchased by her guardian, while she was still a minor. Those payments were evidenced by checks of Heitman Trust Company in various amounts, payable to the order of Elizabeth Kilbert, indorsed by her and Wilma E. Kinney and the proceeds paid to the latter as income.

Following these various transactions, Wilma E. Kinney on December 20, 1933 filed her complaint in the superior court against Elizabeth Kilbert, Fidelity & Casualty Company of New York and Heitman Trust Company (hereinafter referred to as suit No. 591291), claiming that the petitions presented by her former guardian to the probate court for leave to purchase bonds from Heitman Trust Company, containing allegations as to the examination of the improved property by the guardian and the value of each parcel covering the particular bond issue purchased, were not true and were made for the purpose of deceiving the court in obtaining leave to purchase said bonds from Heitman Trust Company, thereby causing great losses to the minor’s estate. Heitman Trust Company, Elizabeth Kilbert and the surety filed answers denying liability, and issue being joined the cause was referred to a master in chancery, before whom some testimony was taken. However, before the hearing was concluded, the surety company, responding to its liability as surety for losses sustained by the minor’s estate through hazardous investments by the guardian, made a settlement with Wilma E. Kinney for $24,000, paid the master $500 as fees, and received from Wilma E. Kinney all the bonds and mortgages which had been turned over to her by her guardian. Plaintiff’s solicitor thereupon moved for leave to dismiss the suit, and such order was entered accordingly. Shortly thereafter, January 29, 1935, and before the suit at bar was filed, the surety company made a tender to Heitman Trust Company of all the bonds and mortgages which it had received from Wilma E. Kinney as part of the settlement, with a demand that Heitman pay it the sum of $24,500. The demand and tender were refused and this suit followed.

Following dismissal of that proceeding, Wilma E. Kinney on January 24, 1935 filed her complaint in the superior court of Cook county against Philip C. Lindgren, Fred P. Heitman and Heitman Trust Company, alleging breach of trust on their part with respect to certain trust agreements, and claiming specifically that Heitman Trust Company had sold bonds to Lindgren and Heitman, who were trustees for Wilma E. Kinney, which were already in default and with knowledge that said acts constituted breaches of trust. By way of defense, Heitman Trust Company took the position that after Wilma E. Kinney had attained her majority she executed and delivered to Elizabeth Kilbert, her aunt and former guardian, the power of attorney hereinbefore mentioned, and thereafter, by accepting principal and interest payments on certain securities and agreeing to extensions as to others, confirmed all the transactions entered into by her guardian with defendants. That cause was also referred to a master in chancery, and thereafter on November 12, 1937 a decree was entered in favor of Wilma E. Kinney against Heitman Trust Company and others. An appeal was taken to the Appellate Court (Kinney v. Lindgren, 296 Ill. App. 635 (Abst.), which reversed the decree in June 1938 and remanded the cause to the superior court. The reversing order was predicated upon the execution of the power of attorney given her aunt by Wilma E. Kinney, the signing of seven separate letters or documents characterized as “forbearance” agreements, and the acceptance of principal and interest payments by Wilma E. Kinney from defendants, all of which were held to constitute acts of ratification. Upon remandment, the superior court refused to set the cause down for hearing, and entered a decree against Wilma E. Kinney, who perfected a second appeal to the Appellate Court (Kinney v. Lindgren, 300 Ill. App. 610 (Abst.). The court considered itself bound by its first opinion and affirmed the decree, except for the item of trustees ’ fees, which were waived. Wilma E. Kinney thereupon had leave to appeal to the Supreme Court, where an opinion was filed in February 1940, reversing the Appellate Court and holding in effect that the signing of receipts did not amount to a ratification of the trustees ’ acts, since she could make no ratification until she attained her majority, and thereafter a full disclosure of the facts, with knowledge of her rights, would have to be shown. The court also affirmed the well established doctrine that a trustee stands in a fiduciary relation, and in the absence of express authority he can neither sell trust property to himself nor buy property for the trust estate from himself or from a company in which he has a substantial or controlling interest or in which he is a principal officer, the consideration paid and his good faith being immaterial, and that the transaction will be set aside even though it would have been upheld if the dealings had been at arm’s length with a third person. (Kinney v. Lindgren, 373 Ill. 415.)

In the instant proceeding,- although the master’s findings of fact support the allegations of the complaint with respect to breaches of trust and fraud practiced in the procurement of the probate court’s consent to purchase bonds for the estate, he recommended dismissal of the suit on the legal theory, that it was the guardian’s duty to make her own investigation relative to the value and desirability of the bonds as investments, because no fiduciary relationship existed between her, the TIeitman Trust Company and its officers; and that the receipt of principal and interest payments and the execution of forbearance agreements by the ward after she had attained her majority, constituted a ratification by her of all purchases made by the guardian. These legal theories were not accepted by the chancellor, however, who sustained all of plaintiff’s exceptions to the master’s report except those with respect to the Benjamin F. Lewis mortgage, which is not the subject of controversy here. As .to that mortgage, the decree ordered that the amount of $7,000 paid by the guardian to Heitman Trust Company be deducted from the $24,500 paid by the surety to Wilma E. Kinney, but allowed plaintiff to recover the sum of $17,500, with interest at 5 per cent from January 29, 1935, the date of the tender, to the date of the decree, making a total of $23,114.59, and ordered that plaintiff surrender to Heitman Trust Company all the bonds listed in the decree in the total principal sum of $23,300, upon payment to plaintiff of the sums found to be due it from defendant, and that in default thereof execution issue therefor.

An examination of the record leaves no substantial doubt that all the investments of the estate funds made by the guardian, were in securities purchased from Heitman Trust Company, which was the house of issue and also trustee under the trust deeds securing most of the bond issues; that when certain of the bonds were sold to the guardian, defaults had occurred in payment of principal, interest and taxes; that authorization for the purchase of all the bonds was had by means of petitions prepared by defendant from information furnished by its officers and presented to the court by its representative on behalf of the guardian, through use of the names of attorneys who had no knowledge thereof; that the petitions contained misrepresentations as to the values of the properties, the margins of securities and rentals thereof. Obviously the probate court would not have authorized the investments made if the true facts had been presented. Defendant does not seriously challenge any of these conclusions, but its defense is predicated partly on the legal theories adopted by the master and on certain other legal propositions which are argued extensively, to the exclusion of any substantial defense as to its fraudulent conduct.

Whatever doubt may have existed as to whether Wilma E. Kinney ratified the purchases made for her estate from the Heitman Trust Company, is effectively dispelled by the opinion in Kinney v. Lindgren, 373 Ill. 415, wherein defendant likewise contended that plaintiff had ratified the acts of her guardian, and for similar reasons. The court cited White v. Sherman, 168 Ill. 589, wherein the principles pertaining to ratification are aptly and forcibly stated, and held that “Appellant [Wilma E. Kinney] could make no ratification until she attained her majority, and even then a full and complete disclosure of the facts to her, with knowledge of her rights, would be necessary.” The facts in the Lindgren case were far more favorable to the Heitman Trust Company than in the suit at bar, because when payments of interest in that proceeding were made to Wilma E. Kinney as beneficiary or to her mother as settlor, the receipts for income signed by them purported to approve all acts of the trustees. Nevertheless, the court said: “The signing of receipts by the appellant and the settlor for income which purported to approve all acts of the trustees would not, alone, be sufficient. ’ ’ It was held in White v. Sherman, that “In order to bind a cestui que trust by acquiescence in a breach of trust by the trustee, it must appear that the cestui que trust knew all the facts, and was apprised of his legal rights, and was under no disability to assert them”; that proof of knowledge on the part of the cestui que trust of all the facts, and the appraisal of his legal rights “must be full and satisfactory”; that “The cestui que trust must be shown, in such case, to have acted freely, deliberately and advisedly, with the intention of confirming a transaction which he knew, or might or ought, with reasonable or proper diligence, to have known to be impeachable”; that£ £ His acquiescence amounts to nothing if his right to impeach is concealed from him, or if a free disclosure is not made to him of every circumstance which it is material for him to know”; and that “The trustee setting up the acquiescence of the cestui que trust must prove such acquiescence. ’ ’ In the case at bar, Heitman Trust Company .makes no pretext that it or anyone else made a ‘1 full and complete disclosure.” The court in its decree expressly found that Wilma E. Kinney had no knowledge that the bond issues were in default at the time defendant sold the bonds to her guardian, or that any disclosure was made to her after she attained her majority; nor did she have knowledge with respect to the untrue representations by her guardian in petitions prepared and filed by the Heitman Trust Company in the probate court. In an effort to overcome the effect of these findings, defendant relies on certain testimony of Elizabeth Kilbert wherein she stated on cross-examination that before her discharge as guardian, she had told her ward that the bonds were in default. The record discloses that she was not referring to the defaults in the bond issues which existed at the time the Heitman Trust Company sold to her as guardian, in 1929 to 1932, bonds of such defaulted issues, but rather to defaults which occurred during the year 1932, when certain bonds matured, were not paid and remained in default. It is incredible that she knew of the defaults when she purchased the bonds, because, as defendant states, she also admitted that ‘ ‘ she had personally bought bonds from the Heitman Trust Company of the same issues all of the time that she was buying bonds for the minor’s estate, and even as late as March, 1933,” and that “she certainly and selfishly would not invest her own moneys as well as a minor’s moneys in bonds which she thought were unsafe.” The reasonable conclusion is that even the guardian had no knowledge of the fraudulent acts of defendant and therefore could not have imparted any to her ward. Aside from this testimony, there is no evidence in the record that Elizabeth Kilbert ever had knowledge that the issues of bonds which she purchased as guardian were actually in default at the time of such purchases. Upon the whole record, the conclusion is inescapable that the findings of the decree with respect to the breaches of trust and the lack of knowledge on the part of Wilma E. Kinney are amply sustained by the evidence; and without knowledge and full apprisal of her .legal rights, Wilma E. Kinney could not have ratified the acts of her guardian.

That Wilma E. Kinney had the right to sue the Heitman Trust Company alone for participating in a breach of'trust by her guardian is clearly established by the authorities. In American Bonding Co. v. National Mechanics’ Bank, 97 Md. 598, quoting with approval Duckett v. National Mechanics’ Bank, 86 Md. 400, the court said that “ ‘all persons who knowingly participate or aid in committing a breach of trust are responsible for the money and may be compelled to replace the fund which they have been instrumental in diverting. . . . There is in such instances no

primary or secondary liability as respects the parties guilty of or participating in the breach of trust, because all are equally amenable.’ ” In Empire State Surety Co. v. Cohen, 93 Misc. Rep. 299, 156 N. S. 935, it was held that the diversion of an “infant’s property from its lawful use by the fiduciary renders the third party receiving it with knowledge or notice equally culpable as the trustee, and equally liable to the infant for any resulting loss, even though such diversion was intended to benefit the trust estate.” Plaintiff’s suit at bar is predicated on the theory that defendant participated in a breach of trust and fraud on the probate court which rendered defendant liable to Wilma E. Kinney, and that by reason of plaintiff’s settlement with her and the assignment to it of any rights she might have had against the Heitman Trust Company, it became subrogated to her rights. But defendant argues that the party seeking subrogation must act fairly and equitably and be free from fraud, and it is urged that because the surety had a joint control agreement with the guardian, which provided that no check, draft or order for the payment of money drawn by the fiduciary should be honored by the bank unless it was countersigned or approved in writing by one of the surety’s representatives, and also because it had joint control of the contents of a safety deposit box rented by the guardian, plaintiff placed itself in' the same position as the guardian, and assumed the responsibility of investigating the value and security of the bonds purchased; and its counsel say that if the guardian was negligent, so was the surety. No cases are cited to support this proposition, and we know of none so holding. Joint control agreements are usually required by the surety for its own protection, but they do not cast upon the surety any such responsibility as is here urged.

It is argued at length that the dismissal of superior court case No. 591291 by Wilma E. Kinney in consideration of the payment to her of the sum of $24,500 was res adjudicata. Most of the securities in which her guardian had reinvested funds of the estate had become worthless, and Wilma E. Kinney joined the surety, which was clearly liable under its contract, together with her guardian and the Heitman Trust Company, which was also liable, as defendants. Although some testimony had been adduced before the master, the case was still pending when settled, and was dismissed on motion of plaintiff’s solicitor before any report was made or order entered affecting the merits of the cause. The rule is well settled that a judgment, to be a bar, must have been rendered upon its merits (People v. Harrison, 253 Ill. 625; Marie M. E. Church of Chicago v. Trinity M. E. Church of Chicago, 253 Ill. 21), and where a bill is dismissed without any consideration of the merits and before decree, as was done in this instance, “even though the order of dismissal does not contain the words, ‘without prejudice,’ the judgment or decree of dismissal is not res judicata, and constitutes no bar to a new proceeding for the same cause of action between the same parties.” Bates v. Skidmore, 170 Ill. 233. It is urged, however, that under section 52 of the Practice Act (ch. 110, Smith-Hurd’s Ann. Stats. 1935), a plaintiff may dismiss his action after trial or the beginning of hearing only (1) upon filing a stipulation to that effect signed by the defendant or (2) on order of the court made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit, and defendant’s counsel say that since no such showing was made, the dismissal of the suit, based on a settlement, amounted to a disposition of the case on the merits. In spite of defendant’s assertion to the contrary, there were no cross-issues between the various defendants. Prior to the passage of section 52 of the Civil Practice Act the complainant had an absolute right to have the cause dismissed at his costs and without prejudice at any time before final decree, where no cross bill had been filed. Schatter v. Huse, 330 Ill. 345. This right was absolute, and even where the chancellor hearing the cause had orally indicated what his decision would be and had ordered a decree to be prepared dismissing the bill for want of equity, the complainant was not deprived of his right to dismiss his bill without prejudice before the decree was filed. Benjamin v. Manufacturers Terminal Co., 246 Ill. App. 590. This right was frequently abused, and it was to remedy the existing evil that section 52 was enacted. The obvious purpose of that section was to prevent a voluntary dismissal by a plaintiff where it would be unfair or unjust to the defendant to permit it. Accordingly, under the present statute, the plaintiff, before hearing, may dismiss his suit as of right, but after the hearing begins, he is required either to secure a stipulation from defendant or file a special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit. The “ground for such dismissal” contemplated by the act simply refers to the reasons therefor. Menard v. Bowman Dairy Co., 296 Ill. App. 323. Complainant’s counsel did neither, but simply followed the old practice of serving notice on defendants of his intended motion to dismiss the suit, and the order of dismissal was entered upon the motion without objection. If Heitman Trust Company had appeared, as it had the right to do, and objected to the dismissal for the reason that section 52 had not been complied with, the court would have undoubtedly refused to enter an order until complainant had either filed a stipulation or a special motion supported by affidavit. Such irregularities are waived by the failure of a party to object. It was so held in People ex rel. Abraham v. Allman, 299 Ill. App. 189, wherein it was argued that the motion on which the court acted was unsupported by an affidavit as contemplated by section 48 of the Civil Practice Act, which contains procedural requirements similar to section 52 of the statute. As in the case at bar, defendant interposed no objection, and the court held that “even though a proper affidavit were not attached, such failure ... to object amounted to a waiver of the point.” It would be otherwise, of course, if defendant had duly objected and saved such question for review. Under such circumstances we held it to be reversible error for the court to dismiss a case “over defendant’s objection, except upon plaintiff’s compliance with the terms of the act.” Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462. In any event, the failure of plaintiff to comply with the procedural provision of the act, could not have the effect of making the order of dismissal upon complainant’s motion a final adjudication of that cause on its merits.

The remaining contention advanced by defendant is that the demand and tender were for an excessive amount, and therefore the court should not have allowed interest, except from the date the decree was entered. This contention is predicated upon the inclusion in the settlement, of $500 as master’s fees and of the $7,000 Lewis mortgage. The law does not require a tender and demand to be made in equity where it appears that the same would he unavailing. In its amended complaint plaintiff offered to turn over to defendant the securities which it had sold to Elizabeth Kilbert upon an account being’ taken by the court, but defendant evidently did not see fit to accede to the request. The fact that it has litigated matters with Wilma E. Kinney arising out of the same or similar subject matter which have been the subject of four appeals, is a fair indication that defendant had no intention of making restitution for the losses incurred. The inclusion of interest was justified under the rule in equity “to allow interest where warranted by equitable considerations,” and to refuse it where it does not comport with justice. McKey v. McCoid, 298 Ill. 566. This is a case where equity clearly demands that interest be allowed. Plaintiff accepted the findings of the master and the decree of the court with respect to the Lewis mortgage and assigned no cross errors as to that item. With respect to the $500 paid to the master, it is obvious that plaintiff did not seek in this suit to collect that sum as costs in the proceeding which was dismissed, but rather as part of the sum which it had agreed to pay, and did pay, in settlement of its liability to Wilma E. Kinney, as surety. This sum, being the total loss suffered by plaintiff, limited its claim as subrogee to the amount paid, even though the claim of Wilma E. Kinney against Heitman Trust Company substantially exceeded that sum, since the bonds and mortgages sold to her guardian from 1929 to 1932 amounted to a total of $30,300.

Other points are raised, but in the light of these conclusions, they need not be discussed. We are of opinion that the decree of the superior court was proper, and it is therefore affirmed.

Decree affirmed.

Sullivan, P. J., and Scanlan, J., concur.