text:
    Jacob G. Grossberg and Albert E. Icely, Appellees, v. Sadie J. Knight, Appellant.
    Gen. No. 35,749.

      Opinion filed April 25, 1932.
    Hume & Kennedy, for appellant.
    Jacob G. Grossberg and Albert E. Icely, pro se.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

A decree was entered in favor of Jacob G. Gross-berg and Albert E. Icely, the petitioners, practicing lawyers at the Chicago bar, decreeing them an attorney’s lien of $3,000 on a deposit belonging to the defendant in a Chicago bank, and the defendant appeals.

The record discloses, in substance, that John Knight, Sr., his son, John Knight, Jr., and his daughter, Sadie J. Knight, the defendant, had a deposit of $22,000 in a Chicago bank. It was what counsel designate as a survivorship account, and on March 25, 1929, the father died and his son, John, Jr., was appointed executor of his estate. Afterward certain of his heirs filed a petition in the probate court of Cook county, seeking to compel the executor to inventory the $22,000 deposit as assets of the estate of John Knight, Sr., deceased. John Knight, Jr., retained the petitioner Albert E. Icely to represent him, and later Jacob G. Grossberg became associated with Icely and both represented John Knight, Jr., individually and contended that the $22,000 was not an asset of the estate, but that it was a survivorship account belonging to John, Jr., and Sadie, his sister, the defendant. This case was tried in the probate court of Cook county and the petition of the heirs was dismissed, and on appeal to the circuit court of Cook county there was a trial de novo, with the same result. Subsequently there was an appeal to this court but it seems the appeal was dismissed. Afterward John Knight, Jr., died; and it is conceded that his sister is entitled to the $22,000, now increased to $24,000.

February 13, 1931, Grossberg and Icely filed their petition in the circuit court of Cook county praying that they be decreed to have a lien on the money deposited in the bank for the amount of their fees, $3,000. Their right to this was contested and on a hearing the court decreed in favor of the complainants.

The defendant contends that the decree was wrong and should be reversed because in no view of the case are the petitioners entitled to an attorney’s lien, under the statute. Section 1, par. 13, p. 157, Cahill’s 1931 Statutes, provides: ‘1 That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action. Provided, hotvever, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of services of the aforesaid notice.”

The question for decision calls for the meaning of the statute just quoted. It will be noted that the statute gives attorneys a lien for services rendered by them to their clients “upon all claims, demands and causes of action, . . . which may be placed in their hands by their clients for suit or collection, . . . such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action.”

We think it clear in the instant case that the defendant, even if it be assumed she was a client of the petitioning attorneys, did not place in the attorneys ’ hands any claims, demands or causes of action for suit or collection. The most that can be said under the above assumption is that she retained the attorneys to defend a claim made against her by the heirs in the probate and circuit courts; and we are further of the opinion that when the attorneys defeated the claim it cannot be said that they “recovered” any “property or money” for the defendant. The statute gives the attorneys a lien “to any money or property . . . recovered, on account of such suits, claims, demands or causes of action.” We think it obvious there was no recovery within the meaning of the statute in the instant case.

Sustaining this conclusion are the cases of Bremer v. Lake Erie and Western R. Co., 317 Ill. 590; Wilson v. House, 10 Bush (73 Ky.) 406; Atchison v. City of Owensboro, 114 Ky. 706.

In the Bremer case a locomotive fireman was killed in a railroad wreck in Vermilion county, Illinois. At that time he was a resident of Indiana; he had never been a resident of Illinois. The public administrator of Vermilion county filed a petition in the probate court of that county asking that an administrator of the deceased be appointed for his estate, consisting of the cause of action against the railroad company, and letters of administration were issued. The administrator then obtained authority from the probate court to employ counsel to institute suit against the railroad company. His counsel then served notice on the railroad company of their employment and that they claimed a lien under the statute. An administrator was appointed in Indiana by the courts of that State, where the deceased resided at the time of his death, and he settled with the railroad company. The attorneys then filed a petition in the Vermilion county case to enforce their lien. The Supreme Court, in holding that they had no lien, after referring to the statute said (p. 583): “This statute gives attorneys at law a lien upon all claims, demands and causes of action, including claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon between such attorneys and their clients, or in the absence of such agreement, for a reasonable fee, which lien shall attach to any verdict, judgment or .decree entered, and to any money or property which may be ‘recovered on account of such suits, claims, demands or causes of action, from and after the time of the service of the notice of their lien.’

“Whatever else may be said of this claim, it is evident that appellants are not entitled to recover under the Attorneys’ Lien act. In the first place, the lien is made by the statute to attach to a verdict, judgment or decree entered, or to any money or property which may be recovered on account of the suit, claim or demand. . . .No hearing has been had on the suit filed by them in Vermilion county.”

In the Wilson case (73 Ky. 406), the statute giving the attorneys a lien provided “a lien upon any chose in action, account, or other claim put into their hands for suit or collection, and upon judgments in actions prosecuted by them to recovery where the judgment is for money. ’ ’ And the Supreme Court of Kentucky held that the statute did not give the attorneys a lien “because there was no chose in action or other claim put into appellee’s . . . hands for collection, and no judgment for money was recovered.” The court there cited a later act of the statute which provided that when an attorney was employed by either plaintiff or defendant in any action “which is prosecuted by him to recovery he shall have a lien upon any property, either personal or real, which may be recovered in such action for the amount of his fee.” And the court held that the attorney had no lien because no property, real or personal, was recovered; that all the attorney did was to resist the confirmation of the sale of property.

And in the Atchison case (114 Ky. 706), a proceeding was instituted by the tax collector to compel banks of that city to pay taxes. Later the banks obtained an injunction, litigation followed, and the city, through the efforts of its counsel, was successful and the tax collected. The city attorney claimed a percentage of the amount of the tax collected, under a statute which provided that in addition to his salary he should be paid 10 per cent “upon all sums recovered and collected by him for the city.” It was held that the attorney’s services were rendered in defending the injunction suits brought by the banks and therefore there was no recovery within the meaning of the statute. The court there said (p. 714): “The term ‘recover’ has a well-defined meaning in the law, and this meaning has been the matter of adjudication by this court prior to the adoption of the present statutes. Under the statute giving an attorney a lien for money or property, which may be recovered in an action prosecuted by him, it was held that the defendant’s attorney, who merely defeated a judgment sought against his client, had no lien on the fund which was in controversy. Wilson v. House, 73 Ky. 406.”

The petitioners cite a number of authorities which they contend sustain the decree of the court awarding them their lien for their fees. Some of these cases are Mackall v. Willoughby, 167 U. S. 681; Borg v. Kawin & Co., 190 Ill. App. 62; Chicago Junction Ry. Co. v. Leitch, 215 Ill. App. 67; Hatfield v. Richmond, 177 Ky. 183.

The Mackall case (167 U. S. 681), involved the construction of a contract between a client and his attorney by which the attorney was to be paid a certain fee for services to be rendered. The litigation involved some real estate in Washington, D. C. A party was in possession of the property, and through the litigation conducted by counsel he was required to remove from part of the property and the client thereby regained possession of it. And it was held that this was a “recovery” of property within the meaning of the contract. The court there said (p. 687): “We think the word ‘recovered’ should not be so restricted in its meaning. There is no reason why the agreement should not be liberally construed. Its object was to give Willoughby a lien on the property which might be recovered — that is to say, secured or realized —by and through the litigation conducted by him, offensive and defensive. . . . Having as a matter of fact, through success . . . settled the title to a very valuable part of the lot, and enabled Mackall (the client) to retake peaceable possession thereof without further litigation ... we think his lien attached thereto,” While the wording of the contract there involved and our statute is not the same, yet we are of the opinion that in the Mackall ease there was in effect a recovery of part of a lot from which Mackall had prior to the litigation been excluded.

In the Borg case (190 Ill. App. 62), an attorney was awarded a lien and the amount ordered to be paid into court. It was contended that the order should not have required the amount paid into court, and the court said that they were unable to see how this affected the defendant in that case. We think it clear that this case is no authority for the petitioners’ contention.

In the Leitch case (215 Ill. App. 67), the court allowed an attorney who defended in a condemnation suit a lien. There, a railroad company had brought a condemnation suit and the owner employed counsel to defend. Afterward the railroad company dismissed its suit and under section 10 of the Eminent Domain Act, Cahill’s St. ch. 47, tí 30, was required to pay the defendants costs and reasonable attorneys’ fees and this fee was paid into court. Counsel was given a lien upon that money, We think it equally obvious that this case is not in point. The money was there paid by the plaintiff into court. There are no such facts in the instant case. The petition filed by the heirs seeking to have the money in the bank inventoried was dismissed.

In the Hatfield case (177 Ky. 183), an attorney was given a lien for $150 on a tract of land which was awarded to the attorney’s client on his client’s counterclaim. The court there said (p. 185): “It will thus be seen that Hatfield, although a defendant in the action of Richmond, was seeking by counterclaim to be adjudged the owner of all the land in dispute. . . . We perceive no difference between the right of an attorney to his statutory lien who represents a defendant who successfully asserts title to the property by way of counterclaim and the right of an attorney to a statutory lien who successfully represents the plaintiff who is seeking to recover property on his petition.” We think it clear that the facts in the Hatfield case are in no way analogous to the facts in the case before us.

We hold it was error to decree a lien on the money in the bank.

We are further of the opinion that all the evidence shows that counsel were not retained by the defendant but by her brother John Knight, Jr., representing him alone, and that he was to pay them their fee for the services which they performed.

Icely, one of - the petitioners, testified that John Knight, Jr., had been a client of his for some years prior to the time in question; that the petitioner Gross-berg became associated with Icely in attending to a number of legal matters for John Knight Jr., and that Knight asked the witness “what I would charge him to represent him in defending his interest in that fund ... I told him I would charge him 25 per cent of whatever interest he had in that fund as fees to represent him, ’ ’ and that afterward on a number of occasions Knight stated that the fee of $3,000 was satisfactory to him.

Grossberg testified that he had conferences in the probate court room with John Knight and the defendant Sadie Knight, in reference to the probate court matter; that he thought she was in his office but once; that he did not talk about the fee to anyone but left it to Mr. Icely. It further appears that in reply to a letter from the defendant in which she stated that he had never represented her, the witness replied that “while technically speaking this is true,” that he only represented her brother John, yet his work was for the personal benefit of herself as well as her brother.

The record further shows that when the case was called in the probate court the witness, in response to a question put to him by the court as to whom he represented, replied that he represented Mr. Knight individually. It will be noted that neither of the petitioners makes any reference to being retained by the defendant, Sadie Knight.

But the petitioners further contend that since the services performed by them were for the benefit not only of John Knight, but of his sister, the defendant, Sadie Knight, she is liable for the services in protesting and safeguarding the funds in the bank “even if she had not expressly authorized, approved and ratified the services rendered by the petitioners.” We think this contention is unsound under the facts in this case. The evidence shows that John Knight retained the petitioners to represent him and that he agreed to pay them for their services. The fact that the services they performed inured to the benefit of the defendant, Sadie Knight, would not make her liable because she had a right to retain any counsel or none at all, as she saw fit.

The decree of the circuit court of Cook county is reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded with directions.

MoSurely and Matchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    North West Cab Company for the Use of Ethel Chamberlain, Appellee, v. Central Mutual Insurance Company, Appellant.
    Gen. No. 35,764.

      Opinion filed April 25, 1932.
    Rehearing denied May 9, 1932.
    William Levine, for appellant.
    Finn & Miller, for appellee; Robert S. Cook, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment of $2,500 entered on the finding of the court in an action of debt on an insurance policy issued by the defendant.

August 28, 1928, Ethel Chamberlain, hereafter called plaintiff, while a passenger in a taxicab of the North West Cab Company, was injured in an accident. She brought suit, alleging that the negligence of the driver caused the accident and upon trial had a judgment against the cab company for $6,500. Alleging that this judgment was in full force and unsatisfied, she brought the present suit upon the policy of insurance issued by the defendant to the North West Cab Company, pursuant to section 42a of the Motor Vehicle Act, ch. 95a (Cahill’s 1929 St.). This statute is in part as follows:

“Sec. 42a. It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State, having a population of one hundred thousand or more, for the carriage of passengers for hire, indiscriminately accepting and discharging all such persons as may offer themselves for transportation, unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, at all times during which such motor vehicle is being driven or operated, either (1) a bond, ... or (2) A policy of insurance in a solvent and responsible company, authorized to do business in the State of Illinois, insuring said owner of said motor vehicle against liability for any injury to or death of any person resulting from the negligence of such owner or his agent, in the operation of such motor vehicle . ; said policy of insurance shall provide for payment and satisfaction of any final judgment rendered against the owner of said motor vehicle for such injury or death, and shall provide that suit may be brought in any court of competent jurisdiction upon such insurance policy by the owner of any such judgment. Said insurance policy shall contain a description of each motor vehicle, giving the manufacturer’s name and number and State license number. . . . ”

Defendant first argues that the declaration states no cause of action in that it fails to allege (1) that the motor vehicle at the time of the accident was operated for carriage of passengers for hire in an incorporated town, city or village in Illinois having a population of 100,000 or more; and (2) in failing to allege that the judgment obtained by Ethel Chamberlain against the North West Cab Company was recovered because of injuries caused by the negligence of the owner of the vehicle.

The declaration alleged that the defendant issued its policy insuring the North West Cab Company against liability resulting from its negligence, which policy was issued pursuant to the provisions of the Motor Vehicle Law; that the taxicab hi which plaintiff was injured was operated at the time of the accident under the provisions of this statute. This was a sufficient allegation, in the absence of a demurrer, that the motor vehicle at the time of the accident was operated in a city having a population of 100,000 or more.

The declaration alleges with reference to negligence that plaintiff received injuries by reason of the vehicle of the North West Cab Company colliding with another automobile, throwing her to the floor and injuring her, for which the North West Cab Company became liable for damages. It is not necessary to allege explicitly of a defendant that it is guilty of negligence. No special form of words is required to state the negligence upon which a cause of action is based. It is enough if the facts stated are sufficient to show a failure of a defendant to perform, with a resulting injury. Miller v. Kresge Co., 306 Ill. 104; Nall v. Taylor, 247 Ill. 580.

Even were the declaration insufficient in the particulars just mentioned, such defects could have been questioned by a demurrer. On defendant’s failure to demur such defects are cured by the finding of the court. Kelleher v. Chicago City Ry. Co., 256 Ill. 454, and many other cases.

The evidence sufficiently identified the taxicab which caused plaintiff’s injuries as the vehicle covered by defendant’s insurance policy; the policy covered a motor vehicle with the State license number 152119. A witness who was present at the time of the accident testified that the cab in which plaintiff was riding bore this same number and was the same make as the vehicle described in the policy. While witnesses on this point were cross-examined closely by defendant’s counsel, it introduced no evidence tending to show that its insurance policy did not cover the vehicle in which plaintiff was injured.

It is urged that before there can be a recovery upon such a policy, issued pursuant to the statute, it must be both alleged and proven that the accident happened within the limits of a city, town or village having a population of 100,000 or more; that the policy covers only accidents which occur within such city limits. The first answer to this is that evidence was adduced tending to show that the accident happened within the city limits of the City of Chicago. The declaration in the suit in which plaintiff obtained her judgment alleged that the cab company was a common carrier of pas-’ sengers for hire in the City of Chicago, county of Cook and State of Illinois, and that she was injured through the negligent operation of the taxicab in respect to speed in the City of Chicago, Illinois; that the place of the accident was a part of the resident portion of Chicago. Charles Egan, a police officer of Chicago, testified that he was present at the scene of the accident; that it took place in the 5400 block on the North West Highway; that he took a report of the accident to the station in the City of Chicago, where it was kept on record in the accident book; it was also shown that this report is in the police records of Chicago. The court could properly infer that the accident happened in Chicago. We will take judicial notice that Chicago is an incorporated city having a population of 100,000 or more.

Does the insurance policy cover accidents which occur outside of the city limits'? Defendant says it does not, citing Bartlett v. Lanphier, 94 Wash. 354, where, in construing the statute of that State it was held that the bond, required as a condition to carrying on the business of transporting passengers for hire in a motor propelled vehicle in any city of the first class, did not cover accidents happening beyond the city limits. However, we read the statute there considered as containing words limiting the accident covered to the confines of the city. There are no such words of limitation in our statute. Neither in the policy are there any words limiting the territorial liability of the insurance company. The policy provides: “that the Central Mutual Insurance Company shall and will pay and satisfy all final judgments rendered against said owner for such injuries or death, and suit may be brought in any court of competent jurisdiction upon this policy of insurance by the owner of any such judgment.” Words limiting its territorial liability could have easily been added to the policy had the defendant so desired. The statement that it is issued pursuant to the provisions of the Motor Vehicle Law means that the insured is permitted to operate its cabs within the city limits. The policy must be construed most strongly against the company issuing it, and, in case of doubt, favorably to the assured — the public in this case.

In Distefano v. Michiels, 158 La. 885, the surety disclaimed liability on a bond required by statute given to secure damages resulting from accidents happening outside of an incorporated city, on the ground that the accident occurred within the city (the converse of the instant case). The surety was held liable as there was nothing to indicate that the bond should not indemnify a person injured if the accident did not happen outside of a city, town or village. In Devlin v. Herr, 98 N. J. L. 324, where the vehicle in question was operated under a policy which stated that the insured proposed to operate “in Port Newark,” whereas the accident happened somewhat apart from that locality, it was argued that as soon as the vehicle was operated outside of the locality of “Port-Newark” the insurance policy ceased to be of any benefit to the traveling public. This contention was held to be without merit as disregarding the terms of the policy to the effect that it did not cover loss when the accident occurred outside the State of New Jersey. This was construed to mean that the policy covered any accident within the State. In Connell v. Commonwealth Casualty Co., 96 N. J. L. 510, the insurance policy covered a public motor vehicle giving service in three specified towns in New Jersey, “and vicinity.” The accident happened in Newark, not named in the policy. It was held that the policy covered the accident.

Having in mind the purpose of the statute, which is to protect the passenger public, we hold that even if the accident in question happened outside the limits of the City of Chicago, defendant is liable on its policy.

F#or the reasons indicated the judgment is affirmed.

Affirmed.

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


text:
    Sturgis National Bank, Appellant, v. Harris Trust & Savings Bank, Appellee.
    Gen. No. 35,821.
    Opinion filed April 25, 1932.
    Fisher, Boyden, Bell, Boyd & Marshall, for appellant.

      Chapman & Cutler, for appellee; Charles M. Thomson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This case involves the title to five First Mortgage Gold Bonds of the Central Mexico Light & Power Company of the par value of $1,000 each. Which of the parties to this suit has title depends upon whether or not the bonds are' negotiable. They were stolen from the plaintiff, passed through several hands and were eventually purchased by a Mr. Fisher in good faith, who instructed the New York brokers through whom he bought them to send them to the defendant in Chicago, which was done. Plaintiff, having located the bonds, demanded them from defendant, the demand was refused and this suit in trover followed. Defendant does not claim any property in the bonds but is holding them as custodian for the owner. If the bonds are negotiable defendant may retain them. The trial court so held and plaintiff appeals.

The only question presented is, Did the bonds contain an unconditional promise to pay a sum certain in money and hence are negotiable f The Uniform Negotiable Instruments Act, ch. 98, par. 21, Illinois (Cahill), provides that “Sec. 1 — An instrument payable in money, to be negotiated, must conform to the following requirements: 1. ... 2. .Must contain

an unconditional promise or order to pay a sum certain in money.” Whether the promise to pay is unconditional must be determined from the face of the writing itself. Equitable Trust Co. of New York v. Harger, 258 Ill. 615, and followed in numerous cases cited in Pflueger v. Broadway Trust & Savings Bank, 265 Ill. App. 569. These cases also hold that if in the bond anything appears requiring reference to another document to determine whether in fact the unconditional promise to pay a sum certain at a future date is modified or subject to some contingency, then the promise is no longer unconditional. The bond may refer to the transaction giving rise to the instrument, or it may refer to a trust deed or mortgage given as security without impairing its negotiability. It is not difficult to determine the law. The difficulty arises in applying the law to a particular case.

Turning then to the bonds before us to ascertain what words they contain which it is claimed modify the promise to pay, thus destroying their negotiable character, we find that it is provided that, for value received, the Central Mexico Light & Power Company promises to pay to bearer on a fixed day $1,000, at a specified place, with interest at six per cent per annum. This first- paragraph is rather long, and it is not contended that in itself it is otherwise than an unconditional promise to pay. The words said to create a contingency or condition with reference to payment are in the next paragraph, the first part of which reads:

“This bond is one of a series of bonds for the aggregate principal sum of two million five hundred thousand dollars ($2,500,000) . . . and is entitled to the benefits and subject to the provisions of a mortgage or deed of trust, dated January 3, 1910, made by the obligor company to City Trust Company, as Trustee.” The particular words said to impair the promise to pay are: “This bond . . . is entitled to the benefits and subject to the provisions of a mortgage or deed of trust.” Farther on in the bond is a provision that no stockholder, officer or director of the obligor company shall be liable and they are released from such liability “by the terms of the mortgage or deed of trust, subject to which this bond is issued.”

This court has had occasion in a number of cases to consider the effect of somewhat similar language. The latest is Pflueger v. Broadway Trust & Savings Bank, 265 Ill. App. 569, opinion filed October 19, 1931, the opinion in which contains an exhaustive investigation and study of this subject, with many citations of ' decided cases. In that case the debentures contained the provision that they were issued “under a certain trust agreement, ... to which trust agreement reference is hereby made for a statement of the terms under which the said debentures are issued.” We held these words did not impair the negotiability of the debenture bonds. It should be noted that the words “under which” in those debentures, and “subject to” in the bonds under consideration, are synonymously used.

In Batch v. English, 261 Ill. App. 29, after the unconditional promise to pay, the bonds contained a provision that the entire principal sum might become due and payable “upon the terms and under the conditions prescribed in the trust deed, ’ ’ and that the trust deed and bonds are parts of the same contract. In Weber v. Keith Railway Equipment Co., 248 Ill. App. 258, the certificate bonds referred to a contract of lease “under which said certificates are'issued.” In both of these cases it was held that unless such words make payment dependent or conditional upon some instrument to which they refer, they will not destroy the negotiable character of the note. Biegler v. Merchants’ Loan & Trust Co., 164 Ill. 197; National Bond Investment Co. v. Banners, 253 Ill. App. 262; and Atlas Coal & Coke Co. v. Kentucky River Coal Min. Co., 253 Ill. App. 475.

Other jurisdictions have almost universally held that courts should not modify an unconditional promise to pay by forced construction of the language of the instrument. Utah Lake Irr. Co. v. Allen, 64 Utah 511; Paepcke v. Paine, 253 Mich. 636; Bank of California v. National City Co., 138 Wash. 517; Bank of Calif or nia v. National City Co., 141 Wash. 243. In Enoch v. Brandon, 249 N. Y. 263, the court had under consideration the effect of the words in the bonds, that they were “all equally secured by and entitled to the benefits and subject to the provisions” of a trust mortgage. It was claimed this impaired the promise to pay and made the bonds non-negotiable. It will be noted that these are virtually the same words as are in the instruments before us. It was held that these did not modify the promise to pay; that they have to do with the trust mortgage given as security and refer to the rights conferred by it upon the bondholders and limit and explain those rights.

Counsel for plaintiff cite the recent case of People v. Gould, 347 Ill. 298, as sustaining its position. In that case the note, after reciting the promise of the obligor to pay $30 one year after date, says that it was given for interest due on a “principal trust deed note hereto attached and numbered 146-1. Payable according to the tenor of said principal note.” The alleged principal note was not set out in the indictment. These words were construed to be a direction as to the manner in which the note was to be paid; that the principal note “may have been an unconditional promise to pay or may not have been such a promise to pay.” For this reason the instrument was held to be nonnegotiable. That was a criminal case, in which stricter rules of construction obtain than in civil cases. By the express language of the instrument, payment was conditioned upon the terms of another instrument. Other cases cited by the plaintiff can be readily distinguished from the instant one. A typical case is Chicago Trust & Savings Bank v. Chicago Title & Trust Co., 190 Ill. 404. There the note held non-negotiable was, by its promise, payable after the completion of certain work, and it was held that this was “a contingency which may never happen, ’ ’

In the bonds before us the promise to pay is. explicit and unconditional. The second part of the bond, which contains the questioned words, refers to the security. No purchaser examining this would understand that the obligor was qualifying its promise to pay. It would never occur to him that anything contained in the trust deed or mortgage might make it impossible to collect the amount due him. He would' interpret the statement that the bonds were “entitled to the benefits and subject to the provisions of a mortgage or deed of trust,” as meaning that a foreclosure or other relief might be had thereon, subject to the provisions of such mortgage. As was aptly said in Enoch v. Brandon, supra, “such provision would mean to a purchaser that only by turning to the mortgage would he discover the precise nature of the lien he would obtain. He would see that the bonds to be issued were not only upon the credit of the corporation, but upon the faith of some collateral mortgage. To it he must go if further knowledge as to this security is desired.”

Such bonds should be construed most favorably to the purchasing public. Words and statements contained therein should not be twisted or distorted from their obvious meaning, especially when to do so would result in loss to many innocent purchasers and in serious confusion in the commercial world.

For the reasons indicated the judgment of the circuit court is affirmed.

Affirmed.

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


author: Me. Presiding Justice Niehaus

text:
    Isabelle W. Shumway, Plaintiff in Error, v. Hiram M. Shumway and Dorice D. Shumway, Defendants in Error.
    Gen. No. 8,546.
    Opinion filed April 27, 1932.
    W. B. McBride and Dryer & Brown, for plaintiff in error.
    Leal W. Reese, John E. Hogan and Harold S. Williams, for defendants in error.
   Me. Presiding Justice Niehaus

delivered the opinion of the court.

The record in this case discloses that the plaintiff in error Isabelle W. Shumway procured a judgment by confession to be entered in the circuit court of Christian county for the sum of $12,338.52. Thereafter the court entered an order that the judgment be opened, and gave the defendants in error leave to plead in defense; also ordered that the judgment stand as security. Thereafter the court sustained a demurrer to the declaration; and after that the court sustained a motion discharging the lien of the opened judgment.

The writ of error in this case is prosecuted for reversal of the order of the court sustaining the demurrer to the declaration, and for reversal of the order discharging the lien which the court retained as security in its order to open the judgment.

Neither of the orders from which the writ of error is prosecuted is a final order.

“A final order is such a judgment, order or decree as finally disposes of the merits of the case in such manner that no further proceedings can be had in the lower court.” Dowdall v. Hutchens, 347 Ill. 326.

Writs of error lie only from final orders of the circuit courts. Cahill’s St. ch. 110, 1i 91; sec. 91, ch. 110, Smith-Hurd Rev. Statutes.

An order sustaining a demurrer is not a final order; nor is the order discharging the lien of the judgment which the court had previously ordered to stand as security in connection with the opening of the judgment. The judgment which was entered by confession by virtue of the warrant of attorney attached to the notes in controversy was not thereby vacated nor set aside nor otherwise finally disposed of.

For the reasons stated it is evident that the writ of error was improvidently sued out; and it is therefore dismissed.

Dismissed.


author: Mr. Presiding Justice Niehaus

text:
    The People of the State of Illinois, Defendant in Error, v. John Rodeen, Plaintiff in Error.
    Gen. No. 8,550.

      Opinion filed April 27, 1932.
    Thompson & Marten sen and F. R. Baird, for plaintiff in error.
    G. M. Swanson, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

A writ of error is prosecuted in this case by the plaintiff in error, John Rodeen, from a judgment of conviction in the county court of Ford county for violation of an act of the General Assembly to regulate the manufacture and sale of substitutes for butter. The conviction is based upon an amended information filed against the plaintiff in error which is as follows:

“Now comes into court State’s attorney in name and by authority of People of State of Illinois, and prosecuting this suit on behalf of said People, gives Court to know that John Rodeen late of said county, on April 18, 1931 at and within said county did unlawfully sell imitation butter containing more than one per cent of water and fat and oil other than that derived from milk or cream, made in appearance and semblance of butter and said imitation butter then and there having been produced by combining animal fat and vegetable oil, neither derived from milk or cream, with milk and cream with the effect of imparting thereto a shade of yellow so that such substitute and imitation butter resembled a' shade of genuine butter contrary to the form of the statute in such case made and provided and against the peace and dignity of the same People.”

A motion was made by the plaintiff in error to quash the information which was overruled by the court. It is contended that the court erred in overruling the motion to quash because the information was insufficient in law; that it fails to allege a substantial element of the offense as defined by the statute. That part of paragraph 91 of the act under which the information was drawn provides as follows:

“No person shall combine any animal fat or vegetable oil or other substance with butter, or combine therewith or with animal fat or vegetable oil, or combination of the two, or with either one, any other substance or substances, for the purpose or with the effect of imparting thereto a yellow color or any shade of yellow so that such substitute shall resemble yellow or any shade of genuine yellow butter, nor introduce any such coloring matter or such substance or substances into any of the articles of which the same is composed.” Cahill’s St. eh. 56b, ff 91.

In People v. Martin, 314 Ill. 110, the Supreme Court, in passing upon the sufficiency of an indictment or information charging a statutory offense, said:

“An indictment or information charging an offense defined by statute should be as fully descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute.”

We are of opinion that the information in question meets the legal requirements defined in the Martin case.

After the overruling of the motion to quash the amended information, plaintiff in error pleaded not guilty and the case proceeded to trial. The jury returned a verdict finding the defendant guilty in manner and form as charged in the information and he was thereupon sentenced to pay a fine of $100 and costs.

Various errors are assigned and argued, but the main contention for reversal of the judgment of conviction is that the evidence is insufficient to show the guilt of the plaintiff in error of the offense charged.

It appears from the evidence that Arthur Stevenson, a resident of Ford county, went to the plaintiff in error’s store in Paxton and bought a package of imitation butter, a product known as “Oleomargarine.” He bought it not for his own use but to deliver to the. State’s attorney; and did thereafter deliver it to the State’s attorney, who had a part of this imitation butter product chemically analyzed by O. M. Shelley, the chemist for the Department of Agriculture of this State. This chemist made scientific tests to ascertain the combination of fats or oils that the imitation butter product referred to was composed of; and Shelley was called as a witness and testified at the trial that the product was “composed of some fat other than butter fat, or a mixture of fat”; that “the Eeichert Meissl test determination indicates that there is some butter fat”; but he did not make any determination as to what the other fat was but that it was not derived from milk or cream; that he did not determine whether it was an animal fat or a vegetable fat; that he did not determine whether there was any vegetable fat in the product; and that he could not say whether there was any vegetable fat in it or not; and that he could not say whether there was any animal fat in the product; that he did not know what kind of fat it was. Also that he did not find any artificial coloration in the product, like annatto.

The evidence shows that the imitation butter resembled genuine yellow butter. The testimony of the chemist, Shelley, referred to is the only evidence concerning the elements of fat or coloring matter contained in the product, and he positively stated that he did not know, and could not say, whether there is any animal or vegetable oil in the product, or coloring matter. There is no evidence that there was any milk or cream in the composition of the product. To sustain the charge in the information, it was legally necessary to show beyond reasonable doubt that the imitation butter product in question was composed of animal fat or vegetable oil and had been produced by a combining of animal fat and vegetable oil with milk and cream; and that the combination of fats referred to could or did have the effect of imparting the shade of yellow to the product, which is the gravamen of the offense. It is apparent therefore that the verdict of guilty is not supported by sufficient evidence. The judgment of conviction is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Perry E. White, Appellee, v. Sina White, Appellant.
    Gen. No. 8,567.

      Opinion filed April 27, 1932.
    Busch & Harrington, for appellant; C. E. Tate, of counsel.
    Little & Finfrock and J. M. Mitchem, for appellee; O. L. Finfrock and J. M. Mitchem, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

Perry E. White, the appellee, as complainant, filed a bill in the circuit court of Champaign county, Illinois, for specific performance, against his wife, Sina White, .the appellant, alleging that he and his wife are both residents of Champaign county, Illinois, and that on or about the 21st day of September, 1926, they were living separate and apart; and at that time entered into a written agreement, which is as follows:

“That the parties hereto are husband and wife, and are now and have been for some time last past living-separate and apart; and,

“Whereas, each of the said parties hereto are fully advised and informed of the property, estate and prospects of the other, and each of the said parties have been fully advised and informed by their respective solicitors of their respective rights and liabilities against and to the other and to and upon the property and estate of the other; and,

“Whereas, the parties hereto have reached an agreement as in this instrument set forth, in full settlement now and forever of each and all of their respective claims and demands upon and against the property and estate of the other, and of all claims and demands of the one against the other for maintenance, support, alimony, either temporary or permanent, and solicitors’ fees, which may or might be involved in any future suit or proceeding, either in law or in chancery, which may be hereafter instituted by the one against the other:

“Now, therefore, the party of the first part, in consideration of the releases, covenants and agreements on the part of the party of the second part herein contained, does hereby covenant and agree to pay to the said party of the second part the sum of six hundred fifty ($650.00) dollars cash, the receipt of which is hereby acknowledged. The said party of the first part further agrees to pay to the said party of the second part the sum of eight ($8.00) dollars per week for the support and maintenance of the said party of the second part; the first payment to be made on Saturday, September 25th, A. D. 1926; and eight ($8.00) dollars on each succeeding Saturday so long as the said party of the second part continues to be his wife; the said party of the first part further agrees to give and release his interest in the following described household goods to the said party of the second part, namely:

1 Bed

1 Dining room rug

Linoleum on kitchen floor

6 Dining room chairs

3 Rocking chairs

1 Kitchen table

1 Kitchen cabinet

1 Feather bed, which the said party of the second part made

Those dishes which were given to the said party of the second part, and those dishes which she received as prizes

Dresser scarfs

1 Sewing machine ■

1 Wardrobe

Certain pictures and books of the said party of the second part

Aluminum ware

1 Card table

One chiffonier

The party of the second part’s clothing Bed clothes (which belonged to the said party of the second part’s mother)

Glass cans.

“And, in Addition Thereto, the said party of the first part does by these presents remise, release and relinquish unto the said party of the second part, her heirs, devisees, legatees and personal representatives, all his right, title, claim and interest of every kind and character in and to all the property, both real and personal, of which the party of the second part is now seized, possessed or entitled, or of which she may hereafter become seized, possessed or entitled, and the said party of the first part further covenants and agrees to and with the said party of the second part, her heirs, devisees, legatees and personal representatives, that in the event he should survive the said party of the second part, he will not sue for, claim or demand any right, title or interest either as husband or heir of the said part}7 of the second part, in or to any of the property, either real or personal, of which the said party of the first part may die seized, possessed or entitled, either in possession, remainder, reversion or otherwise :

“And the said party of the second part, in consideration of the payment to her of the said six hundred fifty ($650.00) dollars cash, and the further sum of eight ($8.00) dollars per week for the support and maintenance of the said party of the second part, and further the property which the said party of the first part has released his interest in to her, and in the consideration of the releases, covenants and agreements herein contained on the part of the party of the first .part, does by these presents release, remise and relinquish unto the said party of the first part, his heirs, legatees and personal representatives, all her right, title, claim and interest of every kind and character in and to all property, both real and personal, of which the said party of the second part is now seized, possessed or entitled, or of which he may hereafter become seized, possessed or entitled, and the said party of the second part further covenants and agrees to and with the said party of the first part, his heirs, devisees and personal representatives, that in the event she should survive the said party of the first part, she will not sue for, claim or demand any right, title or interest, either as wife or heir of the said party of the first part, in or to any of the property, either real or personal, of which the said party of the first part may die seized, possessed or entitled, either in possession, remainder, reversion or otherwise, and the said party of the second part further covenants and agrees to and with the said party of the first part to release and does hereby release and completely discharge the party of the first part from any and all claims and demands which she may now have, or which she may hereafter present or assert in any suit or proceeding, either in law or in equity, or for alimony, either temporary or permanent, or for attorneys’ or solicitors’ fees.

“And each and both of the parties to this instrument hereby expressly covenant and agree to and with the other party hereto, and his or her heirs, legatees, devisees and personal representatives, that this instrument shall operate as a full, complete and final settlement, satisfaction, discharge and adjudication of any and all legal rights, claims or demands of either party against the other, for support, maintenance, alimony or solicitors’ fees, or by way of widow’s award, homestead, inheritance, dower or any other interest or money demand which might otherwise than for this instrument be asserted by either party hereto against the other party or the property or estate of such other party.

“It is expressly covenanted and agreed by each and both of the parties to this instrument that in the event either of the parties hereto shall at any time hereafter prosecute or institute any action at law, suit in equity or other proceeding in any court whatsoever, otherwise than for the strict enforcement of this instrument, ■ claiming or demanding the property or estate of the other, or any part or portion thereof, or for alimony, or for solicitors’ fees, that in such event that this instrument may be pleaded and offered in evidence by the defendant in any such action, suit or proceeding, and shall thereupon be and thereby operate as a complete legal and equitable bar to the further prosecution or maintenance of such action, suit or proceeding, or to any claim or demand for alimony or for solicitors’ fees.

“And each of the parties to this instrument hereby covenant and agree that no judgment or decree shall be entered in bar of the prosecution or maintenance of any action, suit or proceeding brought in any manner for the purpose of annulling, modifying, canceling or waiving any of the covenants, provisions and agreements by this instrument expressed and set forth; it being the express agreement of the parties hereto that this instrument and contract shall have the full force and effect of a judgment and decree finally and permanently settling, determining and adjudicating' all the respective mutual rights, obligations, interests and claims of either of the parties hereto against the other, or against the property or estate of the other, mentioned and recited in this instrument.

“And the said parties of the first and second parts do further mutually covenant and agree, each with the other, that during their joint lives they and each of them will, at any time, on request, join the other in the execution of any real estate of which he or she may be seized, or to which he or she may be entitled, in remainder, reversion or otherwise, and make a formal release and relinquishment of his or her contingent right or interest in the real estate of the other.

“In Witness Whereof, the parties hereto have hereunto attached their hands and seals to this instrument in duplicate the day and year first-.above written.

Perry E. White, (Seal)

The Party of the First Part.

Sina White, (Seal)

The Party of the Second Part.”

The bill further sets forth that the complainant had paid to the defendant, Sina White, the sum of $650 as provided in the agreement, and had regularly paid the $8 a week to the said Sina White up to that time, and performed all other conditions of the contract; that the complainant, Perry E. White, had borrowed certain sums of money from the Urbana Banking Company in order to make the payments on the contract; that after the execution of the contract the complainant acquired by inheritance from his father and by deeds from his mother and brothers, a fee-simple title to real estate described as: the west one-half (W%) of the northeast quarter (NE%) and the northeast quarter (NE%) of the northeast quarter (NEI4) of section two (2); all in township eighteen (18) North (N), range nine (9) east (E) of the third principal meridian, in Champaign county, State of Illinois; that complainant purchased six acres from his mother and seven acres from his brother; that complainant is indebted to his mother for the six acres, together with interest on the amount of said purchase.

That after the execution of the agreement Sina White filed a bill asking a decree of divorce against the complainant; and to have said contract set aside, and to procure an injunction restraining the complainant from disposing of the premises above described or any other property owned by the complainant, and enjoining him from incumbering the same, and procure an order to pay to the defendant, Sina White, certain solicitor’s fees in said proceeding; that in consequence of his borrowing, the complainant became indebted to the Urbana Banking Company on the 19th of August, 1929, in the amount of $3,025 with interest;, that on said date said bank closed its doors and a receiver was appointed to wind up the affairs of the bank, who has demanded payment of the amount owing by the complainant and has threatened to take judgment on the notes unless the indebtedness is paid; that the complainant since that- time has become indebted to Busey’s State Bank of Urbana, Illinois, in the amount of $785; that said bank is also demanding payment and threatening to take judgment; that the premises are in need of repairs; that the complainant has no trade or profession and has been a farmer all his life; that the land has yielded a small income during the past several years and the amount received therefrom has not been sufficient to meet his obligations and to provide funds for the maintenance of himself and his son and the payments to the defendant, Sina White; that the complainant has no other property out of ■ which to meet said indebtedness except that above described; that the premises are subject to a vendor’s lien in favor of Sina White and subject to the general taxes for the year 1930.

The bill then prays that an order be entered requiring the defendant, Sina White, to join with the complainant in the execution of a mortgage or trust deed to secure a loan of sufficient funds to meet the purposes above specified, and decree to the complainant and specific performance of the undertakings in said agreement.

The appellant, Sina White, filed her answer to the bill of complainant and thereafter upon the hearing of the cause the court entered a decree ordering the appellant to join with her husband in the execution of a mortgage or trust deed in accordance with the prayer of the bill. This appeal is prosecuted, on the decree of the court.

The . only question presented for review on the appeal is the validity and binding force of the contract herein set forth. It is true, as contended by the appellee, that “where a husband and wife .are living separate and apart ... an agreement between them, fairly and understandingly entered into, adjusting and settling their mutual rights in each other’s property, may be lawfully made, and a provision in such contract under such circumstances that the husband will pay to the wife a certain sum each month for her support is not void as against public policy.” VanKoten v. VanKoten, 323 Ill. 323. But the contract in this case is of an entirely different character than the one passed upon in the case referred to. The contract entered into in this case is not fair to the appellant; nor was it understandingly entered into by her. The appellant testified concerning some' of the features of the contract, as follows:

“I am the wife of Perry White. I separated from him in April, 1926. This contract was executed in September, 1926. At the time I was separated from Mr. White, we were living on this farm. Had lived on that farm eighteen years prior to that time — I mean this 107 acres that Mr. White inherited from his father. That was a portion of the 160 that we farmed at that time. At the time we separated one child wa.s living at home. He was 15 years old at that time. I worked in the field and we put what money we made back on the farm. We raised the house, made a foundation, put in a furnace, put the fences on partly, and I helped dig out for the basement, and I helped mix the cement and laid it. That was all before I signed this contract. I recall the occasion when I signed this contract. Mr. Carson sent me word, and Clyde Mathews, that they had the contract ready. I went up, they read it over, and I refused to sign it, and Mr. Mathews said, ‘Go ahead and sign it; it wont stand in court. If you feel like you are not satisfied with the $8.00, you can go ahead and sue and get separate maintenance for the boy. ’ ... At the time of signing the contract, Mr. White owed me $650.00, besides some other, that I didn’t keep account of, that I gave him at different times, off a little patch of land I had. We were married four years before I sold the land. He wanted to borrow the money and I loaned it to him, $650.00. That was the same $650.00 that was paid me on signing the contract. The household furniture listed in complainant’s Exhibit 1 all belonged to me. My mother came to live with us and when she left she left me some of this stuff and some she bought me when I was married. Outside of that, I bought silverware with my money which was given to me. What he and I bought together was left in the house — cook stove, and everything he sold at the sale. When he sold them I don’t know who got the money.”

From the appellant’s testimony it appears that the $650 mentioned in the contract which the appellee paid her, he owed her; and the household goods and personal effects therein specified were the property of the appellant; and that the only money which he paid her for her maintenance and support was the $8 per week. There was no division of property mutually owned involved in the transaction. But the appellant in order to secure the $8 per week for her maintenance • and support was asked to and did agree in the contract that the money which was due her and the household goods and effects which belonged to her should- constitute the full settlement now and forever of all her claims and demands upon and against the property and estate of the appellee and of all claims and demands against the appellee, which she might thereafter have for maintenance, support, alimony, either temporary or permanent, and solicitor’s fees, which might be involved in any future suit or proceedings, either in law or in chancery, which might thereafter be instituted by her against the appellee; and she further expressly covenanted and agreed in the contract that the contract should operate as a full, complete and final settlement, satisfaction, discharge and adjudication of any and all of her legal rights, claims or demands against the appellee for support, maintenance, alimony or solicitor’s fees, or by way of widow’s award, homestead, inheritance, dower or any other interest or money demand she might otherwise than for this instrument assert against the property or estate of the appellee; without having been advised as to what her rights were, or might be, in her husband’s estate, as his widow. And she also expressly covenanted and agreed in the instrument that if she should at any time thereafter prosecute or institute any action at law, suit in equity or other proceeding in any court whatsoever, claiming or demanding the property or estate of the other, or any part or portion thereof, or for alimony, or for solicitor’s fees, that in such event, the contract might be pleaded and offered in evidence by the appellee in any such action, suit or proceeding, and that it should thereupon be and operate as a complete legal and equitable bar to the further prosecution or maintenance of such action, suit or proceeding, or to any claim or demand for alimony or for solicitor’s fees. And the contract further provides that the contract shall have the full force and effect of a judgment and decree finally and permanently settling, determining and adjudicating, all the rights and obligations, interests and claims of the appellant against the appellee or against the property or estate of the appellee. And she also covenanted and agreed with the appellee that during their joint lives she would at any time, on request of the appellee, join him in the execution of any conveyance of any real estate of which he might be seized or to which he might be entitled in remainder, reversion, or otherwise, and make a formal release and relinquishment of her contingent right or interest in the real estate of the appellee. The effect of this contract, if it could be legally enforced, would be not only to deprive the appellant of solicitor’s fees and alimony in the divorce suit which the bill alleges she instituted against the appellee, which proceeding is different in character and effect covering the rights and property interests of the respective parties thereto and different in effecting the legal obligations of the appellee. Moreover, if the appellee should die which would end the obligation to pay her the $8 per week, having relinquished all her interests in his estate and property as heir and widow including the right which she would have under the law to a widow’s award intended for her support during the first year after her husband’s death, she might be bereft of any means of support and maintenance.

We conclude, therefore, that the contract is grossly unfair, inequitable and unjust and that the evidence shows that it was not under standingly entered into by the appellant. Morever, a contract between a husband and wife, one of the material provisions of which is that the husband shall be relieved of the obligations imposed upon him by law to support his wife, is illegal and void as against public policy. Lyons v. Schanbacher, 316 Ill. 569; VanKoten v. VanKoten, supra.

A contract which is intended to release the husband from payment of further support of his wife is invalid. Shankland v. Shankland, 301 Ill. 524; French v. French, 302 Ill. 152.

We are of opinion therefore that the contract in question is not enforceable in law or in equity and is void as against public policy. The decree is therefore reversed.

Reversed.


author: Mb. Presiding Justice Niehaus

text:
    First National Bank of Normal, Illinois et al., Appellants, v. George E. Blair et al., Appellees.
    Gen. No. 8,570.

      Opinion filed April 27, 1932.
    John F. Twomey and John M. Sullivan, for appellants.
    Mann & Coleman, for certain appellee.
   Mb. Presiding Justice Niehaus

delivered the opin-ion of the court.

In this case an appeal is prosecuted from a decree of the circuit court of Vermilion county holding that Nancy A. Blair was an accommodation signer on a note secured by a trust deed, and that her signature was procured without consideration.

We find on consideration of the case that the abstract filed by the appellants herein is insufficient; and that it does not comply with the requirements of Buie 4 of this court, the first requirement of which rule is that the abstract should be a complete abstract of the record. The abstract in file herein is not sufficiently complete to enable this court intelligently to consider and determine whether the errors assigned are well taken. This is a foreclosure proceeding to foreclose a mortgage or trust deed executed by the appellees, George ID. Blair, Clementine Blair and Nancy A. Blair. When the cause was at issue, it was referred to the master in chancery who heard the evidence and made a report to which objections were filed by the appellants; and afterwards also exceptions. The court rendered a decree confirming the report of the master but the decree is not abstracted. Most of the errors assigned relate to the findings of the court in this decree, namely: the court erred in not sustaining the exceptions to the master’s report. The exceptions, however, are not abstracted. Another error assigned is that the court erred in not holding that the trust deed was not a valid lien on the land of the appellee, Nancy A. Blair, and that it erred in holding that the trust deed was a lien only on the land of George E. Blair, but the trust deed referred to is not abstracted. Another assignment of error is that the court erred in holding that Nancy A. Blair was not liable on her note described in said trust deed; but the note referred to is not abstracted. Another assignment of error is that the court erred in holding that the equities were with Nancy A. Blair; also, that the court erred in holding that the trustee in the trust deed, prior to its execution, was agent for the holders of the notes secured thereby.

Another deficiency of the abstract is that it does not show that the evidence abstracted was all the evidence in the case. It is therefore apparent that the abstract is not complete; and that it does not contain matters which are vital and necessary in consideration of the assignments of error. In accordance with the settled practice in this State, it is proper therefore to affirm the decree appealed from. Chicago Record-Herald Co. v. Fred Bender Store Fixture Co., 207 Ill. App. 152.

The decree is therefore affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    Louis Clements, Trustee in Bankruptcy of Taylor-English Coal Company, Bankrupt, Appellee, v. Second National Bank of Danville, Illinois, Appellant.
    Gen. No. 8,578.
    Opinion filed April 27, 1932.

      Gunn, Penwell & Lindley, for appellant.
    J. R. Dean and Lewman & Carter, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Louis Clements, trustee in bankruptcy of Taylor-English Coal Company, a corporation, bankrupt, recovered a judgment against the Second National Bank of Danville, Illinois, in the circuit court of Vermilion county for the sum of $2,711.22. On this appeal the parties to the suit have been reversed and the cause has been docketed as Second National Bank of Danville, Illinois v. Louis Clements, etc. Under the rules of practice which have obtained for many years in this court a cause should be entitled the same as it was in the court below and the clerk is directed to redocket this cause in this court in its proper form.

A jury was waived and the cause submitted to the court for trial, at the conclusion of which, the record shows the court “finds for the plaintiff, in the sum of $2,711.22 to which finding the defendant excepts.” The court thereupon entered judgment for that amount. The record then shows that after the judgment was entered appellant made a motion for a new trial which was overruled and then made a motion in arrest of judgment which was overruled, whereupon appellants prayed an appeal which was allowed. In the bill of exceptions, however, it appears that the motions for a new trial and in arrest of judgment were made before the judgment was entered. Motions for a new trial and in arrest of judgment must be made before the judgment is entered. As these motions appear to have been made at the proper time by the bill of exceptions, in which it is necessary for them to be preserved, we assume that they were so made.

The original declaration consists of three counts, in the first count of which it is alleged, in substance, that, on the 27th day of December, 1930, the Taylor-English Coal Company was indebted to the Second National Bank of Danville, Illinois, in the amount of $26,000, and on said day the Coal Company executed and delivered its certain check drawn upon said Bank and payable to said Bank, in the amount of $5,531.76; that said Bank honored the check and cashed the same on the 30th day of December, 1930, and credited said amount of said check to the amount of the indebtedness aforesaid; that by such transfer said Bank was enabled to secure payment of a greater percentage of its debt than the other creditors of the Coal Company of the same class; that on the 17th day of January, 1931, an involuntary petition was filed by certain creditors of the Coal Company praying that the latter be adjudicated a bankrupt; that on the 7th day of February, 1931, said Coal Company was duly adjudicated a bankrupt; that said Coal Company was on December 27, 1930, insolvent; that said Bank knew it was insolvent at the time it accepted its aforesaid check and had reasonable cause to believe that by accepting such a transfer to it of such funds as aforesaid, an unlawful preference would result in its favor to the prejudice of other creditors of the same class; that by virtue of the unlawful transfer of said sum of $5,531.76 the Bank has come into possession of said sum of money which is unlawfully the property of the trustee and the money had by it for the use of said trustee; to the damage of the plaintiff" of $6,000, wherefore he brings his suit.

The second count, after setting out the preliminary facts alleged in the first count, also alleges that said Bank accepted said transfer of money to it when it had reasonable grounds to believe that by accepting such transfer of said funds it would thereby obtain the payment of a greater percentage of its debt than any other creditor of the same class; and that the money aforesaid had and received as aforesaid by said Bank is money had and received by it for the use of the trustee as aforesaid; to the damages of the plaintiff of $6,000, wherefore he brings his suit.

In the third count, in addition to the preliminary facts stated in the other counts, it is alleged that said Bank credited the sum of $5,531.76 toward the payment of the indebtedness of the Coal Company to it by way of reducing said indebtedness and thereby obtained by such transfer to it as aforesaid an unlawful preference; that at the time thereof and before said time, the Bank knew that the Coal Company was insolvent and it had reasonable cause to believe that the transfer to it of said sum of money would result in a preference and would enable it to receive payment of a greater percentage of its debt than any other creditor of the Coal Company of the same class, and that a preference would result in its favor to the prejudice of other creditors; that said transfer was made to the Bank within four months prior to the institution of bankruptcy proceedings against the Coal Company; that the trustee does not have sufficient assets on hand to pay any of the creditors any part of their indebtedness; that various claims of various creditors have been filed and allowed against the Coal Company; that the money so received by the Bank is money had and received for the use of said trustee; to the damage of the plaintiff of $6,000.

To this original declaration appellant filed a demurrer which, according to the record, was never passed upon, but to which appellant filed seven pleas.

It is apparent that the original declaration, consisting of the three counts mentioned, is based upon paragraph B, section 60 of the National Bankruptcy Act which is as follows: “If a bankrupt shall . . . have made a transfer of any of his property, and if at the time of the transfer . . . and being within four months before the filing of the petition in bankruptcy, or after the filing thereof and before the adjudication, the bankrupt be insolvent, and the judgment or transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such judgment or transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person.”

The counts in this declaration are inartificially drafted and do not conform to the common law form of declarations in assumpsit which prevails in this State. Where a declaration is based upon a cause of action granted by a statute, and which does not exist at common law, suitable reference should be made to such statute. In the case of Zellers v. White, 208 Ill. 518, the cause of action was based upon the statute providing for a recovery of money or property lost in gambling. The common counts only were filed. The court said: “The declaration is an ordinary declaration in assumpsit, and does not refer in apt language, as it should do, to the act of which said section is a part, for the purpose of showing that it counts thereon.” Nowhere in the declaration is there any reference to the statute, nor is there any allegation of any promise to pay, and, while an allegation of a promise to pay has been held to be not absolutely essential where the facts alleged raise an implied promise, yet it is the proper form of pleading. The demurrer to the original declaration, however, was abandoned by filing pleas thereto.

Appellee filed two additional counts, in the first of which it is alleged that on December 27, 1930, the Coal Company was indebted to the Bank in the sum of $26,000 and that said Bank held certain open accounts assigned to it by the Coal Company before said date to secure payment of said indebtedness; that on said date the Coal Company transferred and assigned to the Bank additional accounts payable to it in the amount of $7,000; that the Coal Company was adjudged a bankrupt on February 7, 1931, and, at the time of the transfer of the accounts mentioned, the Coal Company was insolvent and the Bank knew or had reason to know that it was insolvent and that it would thereby obtain a greater percentage of payment on its claim than any other creditor of the same class and had reasonable grounds to believe that such transfer would result in an unlawful preference in its favor over other.creditors, and that there was not then and is not now sufficient funds in the hands of the trustee to pay any other claims filed against the bankrupt estate; that by said transfer of said accounts the Bank had and received property which rightfully belongs to the trustee to the damage of the plaintiff of $6,000, wherefore he brings suit. This count is substantially a count in trover for the conversion of the accounts mentioned. In the second additional count it is averred that said accounts were transferred by the Coal Company to the Bank with jntent to hinder, delay and defraud its creditors, and, if it states any cause of action, it is one in an action on the case for fraud. Pleas were also filed to these counts.

Counts in assumpsit and in tort cannot be joined in the same cause of action. In Chitty on Pleadings (8th Ed. 205) it is said: “The consequences of a misjoinder are more important than the circumstances of a particular count being defective; for in the case of misjoinder, however perfect the counts may respectively be in themselves, the declaration will be bad on a general demurrer, or in arrest of judgment, or upon error; and if on a writ of error one of several counts in a declaration in assumpsit be bad, and the defendant below suffer judgment by default, and the damages be assessed generally on the whole declaration, such judgment must be reversed.” While it is true that one may, in certain cases, waive the tort and sue in assumpsit (City of Elgin v. Joslyn, 136 Ill. 525; Toledo, W. & W. Ry. Co. v. Chew, 67 Ill. 378; Ives v. Hartley, 51 Ill. 520) the declaration must sound in assumpsit and not in tort.

The finding of the court on which the judgment was entered is general and does not determine whether it is based on the assumpsit counts or the tort counts, and consequently it is impossible to review the judgment on the merits of the case for the reason stated.

As this judgment must be reversed upon the pleadings, we refrain from discussing the errors assigned on the evidence. The judgment of the circuit court is reversed and the cause remanded with directions to sustain the motion in arrest of judgment and to grant leave to plaintiff, if requested, to file an amended declaration.

B,eversed and remanded with directions.


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    The People of the State of Illinois, Appellee, v. C. N. Wirth, Appellant.
    Gen. No. 8,619.

      Opinion filed April 27, 1932.
    James H. Murphy and George G. Rinier, for appellant.
    Victor Hemphill, State’s Attorney, and M. F. Seyerit, Assistant State’s Attorney, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant was convicted under the fifth count of an information filed by the State’s attorney in the county court of Macoupin county and was sentenced to pay a fine of $100 and costs, whereupon he prayed an appeal to this court which was allowed. There is no statute in Illinois authorizing an appeal in a criminal case and the manner of reviewing such case is by writ of error. Gallagher v. People, 207 Ill. 247; French v. People, 77 Ill. 531; Mohler v. People, 24 Ill. 26. In the case at bar, however, no motion to dismiss the appeal was made by appellee but on the contrary briefs and arguments have been filed by the People in which the errors assigned by appellant are discussed. Under such a condition of the record this court may treat the attempted appeal as a writ of error. People v. Miner, 144 Ill. 308. In the case of Gallagher v. People and O’Donnell v. People, consolidated, 207 Ill. 247, an appeal to the Supreme Court was attempted in certain criminal cases and the People instead of filing briefs and arguments therein made motions to dismiss the appeals. The court held: “To give a defendant a right of appeal in a criminal case would be to confer upon him the right, at his own will, to supersede the execution of the sentence, which was never intended. That can only be done by order of the reviewing court, or a judge thereof, upon an inspection of the transcript, in cases where there is a reasonable doubt as to the guilt of the defendant. There have been cases of appeals where the People have appeared and joined in error and submitted the cause for decision upon the errors assigned, which have been treated as being in the court upon writs of error in preference to dismissing the appeal, but in these cases there has been neither appearance nor joinder in error, and we are called upon by this motion to recognize the right of appeal. We cannot consent to do that, and neither of the cases being in this court by any method prescribed by law, the motion is denied.” It was held in the case of Hertel v. People, 74 Ill. App. 304, that where an appeal is brought in a criminal case and the Attorney General files a brief for the State, the court may consider this a joinder in error and hear the case, but is not required to do so. We have concluded to treat this proceeding as a writ of error.

The fifth count of the information under which plaintiff in error was convicted is based upon section 24, paragraph 25, Cahill’s Rev. St. 1931, ch. 91, which provides: “If any person . . . shall maintain an office for examination or treatment of persons afflicted, or alleged or supposed to be afflicted, by any ailment; . . . and shall not then possess in full force and virtue a valid license issued by the authority of this State to practice the treatment of human ailments in any manner, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars, ’ ’ etc. The count is in the language of the above statute. A motion was made in the court below to quash this count because it is indefinite, uncertain, misleading and defective and not fairly apprising the defendant of the offense attempted to be charged. In the case of People v. Jiras, 260 Ill. App. 142, the count on which the defendant was convicted was substantially in the same words as that in the case at bar and a full discussion of the sufficiency of such a count was had, and we held that the reasoning applied in the case of People v. Brown, 336 Ill. 257, must be applied to a count of the character involved in this case. We there held: “In neither case does the indictment state or charge what act or acts was performed or intended to be performed as constituting the practice of a system or method of treating human ailments. The indictment in this case contains the same defect as that contained in People v. Brown, supra, and the motion to quash should have been sustained.” No arguments have been advanced in the present case which convince us that we were wrong in our decision in the Jiras case. In our opinion the motion to quash this count should have been sustained.

The judgment of the county court is reversed.

Reversed.


text:
    Town of Dry Grove, Defendant in Error, v. Robert Otto, Plaintiff in Error.
    Gen. No. 8,622.

      Opinion filed April 27, 1932.
    Bracken, Livingston & Murphy, for plaintiff in error.
    Whitmore & Whitmore, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

The Town of Dry Grove, McLean county, Illinois, defendant in error, in an action of assumpsit obtained a judgment in the circuit court against Robert Otto, plaintiff in error, in the sum of $500. A jury was waived and the issues submitted to the court for trial.

There is no dispute in regard to the facts. The suit is brought to recover $500 retained by plaintiff in. error as commissions on certain moneys paid out by him as ex officio treasurer of certain road funds. Plaintiff in error was supervisor of the Town of Dry Grove and as such was also ex officio treasurer of the road and bridge funds of said town. By virtue of his office as such ex officio treasurer there came into his hands the sum of $50,000 from the sale of bonds for the purpose of building hard roads in said town, which he disbursed upon proper orders for that purpose, the moneys so received being designated by the statute as a permanent road fund. As such ex officio treasurer he was also custodian of the taxes regularly levied and collected by the town for road and bridge purposes, which are designated as a common road and bridge fund. As ex officio treasurer of the permanent road fund, under the statute passed in 1917, he was entitled to receive one per cent on the amount of moneys of said fund paid out by him which would be $500. In making his reports to the town of the receipt and disbursements of these two funds he deducted his said commission of $500, to which he was entitled as ex officio treasurer of the permanent road fund, from the moneys received as ex officio treasurer of the common road and bridge fund. In 1919 the legislature amended the Fees and Salaries Act in regard to the compensation of supervisors to which we shall hereinafter refer. It is claimed by defendant in error, (1) that the amendment to the Fees and Salaries Act repealed the commissions theretofore allowed to supervisors acting as ex officio treasurers, and (2) that even if this be not so, plaintiff in error should have retained his said commission out of the permanent road fund and not out of the common road fund.

The determination of the first proposition advanced by counsel for defendant in error requires a review of the laws as they existed before and subsequent to the adoption of the amendment of the Fees and Salaries Act of 1919.

Under the Fees and Salaries Act as it existed in 1917, a supervisor received the sum. of $2.50 per day for the time actually and necessarily engaged in the discharge of his duties as a member of such board of supervisors, and mileage, five cents each way, for necessary travel, and no other allowance or emolument, directly or indirectly, for any purposes whatever. (Ch. 53, sec. 39, Hurd’s Rev. St. 1917.) Section 36, however, of this same act also provided that a supervisor shall receive for his services $3 per day when attending to town business out of town, and $2.50 for town business in his town and further that a supervisor, when attending to his duties as an overseer of the poor, shall be regarded as a town officer and his compensation for services as such overseer shall be fixed by the town board of auditors and be paid out of the town fund. These two sections, if read literally, appear to be in conflict, but up to 1917, in so far as we have been able to discover, they had existed unchanged for 45 years and supervisors had received compensation unquestioned under both sections fdr that length of time.

In 1913 an act was passed and approved entitled “An Act to revise the law in relation to roads and bridges.” By this Act all previous laws relating to roads and bridges were codified, revised and amended. This act is divided into articles and subdivisions. Paragraph (C), section 42, subdivision II, article VI (Session Laws 1913, p. 538), Cahill’s St. ch. 121, if 48, is as follows: “In counties under township organization the supervisor of each town shall be ex officio treasurer of the road and bridge fund.” Section 52 provides that the treasurer of the road and bridge fund shall receive all moneys raised in the town for the support and maintenance of roads and bridges therein, and for road damages, etc., and that the supervisor before becoming entitled to act as treasurer, and within 10 days after his election, shall execute a bond In double the amount of the moneys likely to come into his hands as such treasurer, etc. Section 53 provides as follows: “The ex officio treasurer shall, in addition to the other compensation to which he is by law entitled, receive two per cent on all moneys paid out by him up to and including two thousand dollars and one per cent on all moneys paid out by him in excess of two thousand dollars, excepting such amounts as shall have been paid to his successor; also except all moneys paid out in payment of bonds or other borrowed money.” Cahill’s St. ch. 121, H 59. This act was amended in 1919 but these two sections thereof were not changed.

Subdivision VIII of Article VI (Cahill’s Rev. St. 1931, ch. .121) deals with the subject of hard roads and provides two methods for raising money to construct and maintain the same, the first by a special tax and the second by the issue and sale of bonds for that purpose. The road fund involved in the case at bar was created by the sale of bonds. Section 113 of this act provides that when any such fund is raised for hard roads, the supervisor, as treasurer ex officio, shall give an additional bond for the benefit of the town in double the amount which will probably come into his hands from such hard road fund. Section 114 provides: “The tax, when collected, shall be paid to said treasurer as fast as collected, except such rate per cent as shall be allowed for collecting the same, and said tax shall be known and kept as the permanent road fund. The treasurer shall be allowed one per cent on all of said fund that comes into his hands.” Cahill’s St. ch. 121, 1Í123.

In 1919 (Session Laws of 1919, page 567) the legislature amended sections 36 and 39 of the Fees and Salaries Act. Section 36 thereof was amended so as to read as follows: 1 ‘ Supervisors and assistant supervisors when attending the sessions of the county board of supervisors or engaged in the regular committee work of such board, shall receive such compensation and mileage as is prescribed in section 39 of this Act.

“Supervisors when attending to town business outside their towns shall receive three dollars ($3.00) per day and when attending to town business within their towns shall receive two dollars and fifty cents ($2.50) per day.

1 ‘ Supervisors when attending to their duties as overseers of the poor in counties where the system of town support of paupers prevails shall receive three dollars ($3.00) per day for business transacted outside their towns and two dollars and fifty cents ($2.50) per day for business transacted within their towns.”

“Supervisors when attending to their duties as overseers of the poor in counties where the county system of support of paupers prevails shall receive three dollars ($3.00) per day for business transacted outside their towns, and two dollars and fifty cents ($2.50) per day for business transacted within their towns, payable out of the county treasury.”

Section 39 was amended as follows: “Supervisors and assistant supervisors when attending the sessions of the county board of supervisors or engaged in the regular committee work of such board shall receive for their services the sum of five dollars ($5.00) per day and five cents per mile for each mile necessarily traveled in going to or from the county seat or place of committee meeting, payable out of the county treasury.

“Supervisors and assistant supervisors shall receive, directly or indirectly, no other allowance or emolument.” Cahill’s St. ch. 53, fí 53.

Section 2 of this act provides as follows: “Section 130 of an Act entitled, ‘An Act to revise the law in relation to township organization, ’ approved and in force March 4, 1874, as amended, is repealed.” There is no section 130 of the act mentioned as being repealed but undoubtedly said “section 130” refers to section 1 of Article XY of the Township Organization Act then in force (Hurd’s Rev. Stat. 1917, Art. XY, sec. 1, p. 2927). This section is designated in said volume as paragraph 130 and refers to the same subject matter as is mentioned in the amendment to section 39 of the Act of 1919.

Referring now to the contention of counsel for defendant in error that plaintiff in error is precluded from. any compensation for acting as treasurer ex officio by that provision of section 39 of the Act of 1919 which provides: “Supervisors and assistant supervisors shall receive, directly or indirectly, no other allowance or emolument, ” it is apparent that that provision applies only to the compensation of supervisors while engaged in regular committee work and in attending sessions of the board of supervisors. If given the effect contended for it would prevent supervisors from receiving any other compensation whatever for any other duties imposed upon them by law. That such was not the intention of the legislature is clearly shown by the fact that in this same Act of 1919 it is prescribed that supervisors and assistant supervisors shall receive certain compensation for attending their duties as overseers of the poor. The only act or part of an act specifically repealed by the Act of 1919 is said section 1 of Article XY of the Township Organization Act. When a statute specifically repeals certain other acts or parts of acts it will not be presumed that the legislature intended to repeal any act not mentioned among those specifically named.

It is further contended that if it should be held that the above amendment to the Pees and Salaries Act did not repeal the' sections in the Roads and Bridges Act allowing commissions to the ex officio treasurer, yet the plaintiff in error is liable for the $500 retained by him as commissions because he retained the same out of funds which belonged to the road and bridge fund and not out of the funds belonging to the permanent road fund, that these funds are separate and distinct and moneys in one fund cannot be appropriated to pay commissions or other claims pertaining to the other fund. Without question the Roads and Bridges Act makes a supervisor e® officio treasurer of the regular road and bridge fund consisting of the taxes levied and collected for ordinary road and bridge purposes. It is also evident that if a town votes in favor of constructing what are commonly known as hard roads and funds are provided therefor, either by a special tax levied for that particular purpose or by the issue and sale of bonds, such fund is a distinct and separate fund to be known as the permanent road fund. It must be conceded that the permanent road fund and the common road and bridge fund are separate and distinct funds, as the ex officio treasurer must give a separate bond covering each fund, and he also receives a different commission for handling each fund. There is no question but what plaintiff in error was entitled to his commission as e® officio treasurer of the permanent road fund and also that he was entitled to a commission as such treasurer of the common road and bridge fund as provided by section 53 of said act. It appears from the evidence that plaintiff in error took no commission as ex officio treasurer of the common road and bridge fund but retained out of said fund $500 as e® officio treasurer of the permanent road fund. It is also shown by the evidence that as such e® officio treasurer of the permanent road fund he kept said fund out at interest upon certificates of deposit until it was used and obtained for such interest a total amount of $1,132.34 of which defendant in error received the benefit. Plaintiff in error received $50,000 proceeds from the sale of bonds and $1,132.34 interest on said proceeds making a total which he received and paid out as ex officio treasurer of the permanent road fund of $51,132.34 and that he was entitled to his commission of one per cent on this amount or $511.32 under section 114 of the Eoads and Bridges Act. The evidence also shows that as ex officio treasurer of the common road and bridge fund he paid out $13,154.10 and that he was entitled to a commission on the latter sum under section 53 of said act, two per cent on $2,000 thereof and one per cent on the balance. It is unquestionably the law that public funds acquired by taxation or otherwise for one specific purpose cannot be paid out of a tax fund levied for another purpose. People v. Chicago, T. H. & S. E. R. Co., 315 Ill. 589; Chicago & Alton R. Co. v. People, 205 Ill. 625; People v. Louisville & N. R. Co., 300 Ill. 312; People v. Chicago & E. I. R. Co., 300 Ill. 258.

Under the conceded facts and the pleadings in this case, however, we can see no way of reversing the judgment, inequitable as it may be. The judgment of the circuit court is affirmed.-

Affirmed.