text:
    Henry Susemiehl, Administrator of Estate of Walter Susemiehl, Deceased, Appellee, v. Red River Lumber Company, Appellant, and Walter Gehrke, Appellee.
    Gen. No. 9,552.

      Opinion filed August 8, 1940.
    Cassels, Potter & Bentley, of Chicago, for appellant; Ralph F. Potter and Kenneth B. Hawkins, of Chicago, of counsel.
    Sears, O’Brien and Streit, of Aurora, for appellee; Barnabas F. Sears and William C. O’Brien, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

An action in tort was filed in the circuit court of Kane county by the administrator of the estate of Walter Susemiehl, deceased, for damage's for the wrongful death of plaintiff’s intestate, as a result of a head-on collision between two automobiles about eight o’clock on the night of September 7, 1938, on U. S. Route 30, a mile or more south of the city limits of Aurora, Illinois. The suit was brought against the Bed River Lumber Company, a Minnesota corporation authorized to do business in Illinois, and Walter Gehrke, a salesman residing in Elmhurst, DuPage county, who owned the Buick automobile which collided with the Dodge automobile owned and operated by Walter Susemiehl.

The complaint consists of two counts. The first count charges both the defendants with driving and operating the southbound Buick car in a negligent, careless, wrongful and improper manner, and by reason whereof the Buick car ran into the automobile of the plaintiff’s intestate, which resulted in injuries from which he died on October 31, 1938; that the plaintiff’s intestate was in the exercise of due care and caution for his own safety; that he left him surviving a father, mother and two sisters. The second count charges both of the defendants were negligently driving the Buick car in excess of 50 miles per hour; that they failed to decrease the speed on the wet and slippery roadway, and failed to keep a proper lookout for the automobile of the plaintiff’s intestate approaching from the opposite direction. The plaintiff asks damages in the sum of $10,000.

-The defendants by their respective attorneys filed separate appearances and answers. The Bed River Lumber Company specifically denied it was driving and operating the Buick, denied that Walter Gehrke at the time and place was the agent or servant of the defendant, the Bed River Lumber Company, acting in the course and scope of Ms employment, denied that Walter Gehrke was on any business connected with the Red River Lumber Company, denied that the Buick car was owned by of operated and controlled by the Red River Lumber Company, or by any servant or agent of it then and there acting in the course and scope of his employment, denied any negligence on its part, and denied due care on the part of the plaintiff’s intestate. The answer of the Red River Lumber Company to the second count was in all respects similar to its answer to the first count.

Walter Gehrke in answer to the first count denied he was driving and operating the Buick, and stated that Harold V. Watts was driving and operating the Buick at the time and place mentioned in the complaint. He demed that plaintiff’s intestate was in the exercise of due care and caution for his own safety, demed that he (Gehrke), negligently, carelessly and improperly drove and operated the automobile. The answer of Walter Gehrke to the second count made similar denials to each of the allegations therein.

The case was tried before a jury who found the issues in favor of the plaintiff and assessed damages against each of the defendants in the sum of $6,200. Bach of the defendants filed written motions for judgment notwithstanding the verdict, which was overruled. Bach of the defendants then filed motions for a new trial, and the same were overruled. The court then entered judgment on the verdict against Walter Gehrke and the Red River Lumber Company for the amount of $6,200. It is from this judgment that the Red River Lumber Company has prosecuted and perfected an appeal to this court. Walter Gehrke has not joined in the appeal, nor has he filed a cross appeal or assigned cross errors.

It is first insisted by the appellant that the verdict of the jury and judgment of the court is contrary to, and not supported by the evidence in the case. From a review of the evidence it discloses, that after the accident plaintiff’s intestate car, which had been traveling north on a hard paved road, was found to be with its right wheels off): of the pavement for a distance of approximately 2 feet; that the car owned by the defendant, Walter G-ehrke, was standing with its left front wheel off of the pavement and left rear wheel off, or very close to the edge on the east side of the pavement; that the cars had collided and were locked together and had to be pulled apart by two tow trucks; that it had been raining before the accident occurred, and the pavement was slippery; that the tracks of the Dodge car driven by plaintiff’s intestate showed that he had driven a distance of 20 to 25 feet with the right wheels of his car off of, or to the right of the pavement as he was going north. The attorneys for appellant and appellee differ widely about the skid marks made by the Buick car, but the evidence as abstracted, shows that the skid marks started 55 or 60 feet north of where the cars stood after the collision, and they started approximately 4 feet east of the black line in the center of the pavement and continued to the rear wheels of the Buick car. While the witnesses differ somewhat in minor details as to where the cars were after the accident, it seems to us that there is no question but that plaintiff’s intestate car, at the time of the collision, was being driven on the right side, or in the proper lane of traffic, and that the defendant, Walter Gehrke’s car was being driven on the wrong side of the road. There was no eyewitness to the accident that was competent to testify. Without objection, plaintiff showed that the deceased, Walter Susemiehl, was a careful driver. We think the evidence clearly sustains the verdict of the jury that at the time of the accident, the driver of the defendant’s car was guilty of negligence, that was the proximate cause of the collision and that the plaintiff’s intestate was in the exercise of due care and caution for his own safety.

It is next insisted by the appellant that, “Walter Gehrke was not an agent or servant of the Red River Lumber Company at the time and place of the accident and was not acting in the scope of any employment for the Bed River Lumber Company, but was an independent contractor or on a frolic of his own,” and that, “The Court committed reversible error in permitting the plaintiff to introduce in evidence the report of the accident made by J. P. Binn and mailed to the Hartford Accident & Indemnity Company which issued a policy of workmen’s compensation insurance to the Red River Lumber Company.” The plaintiff introduced in evidence Exhibit No. 6, which is a report made out by Mr. J. P. Binn, the managing officer of the Red River Lumber Company, to the Hartford Accident & Indemnity Company, stating that their employee, Walter Gehrke, had been injured and the report was made for the purpose of claiming compensation for such injuries. The report is made upon the regular standard form for employer’s first report of injury to the claim department of Hartford Accident & Indemnity Company. The first 17 questions relate to the business of the company, the name of the injured parties and are of a general nature. The seventeenth question states that Walter Gehrke had been employed by the Red River Lumber Company for 12 years; that he worked 6 days a week with an average weekly earning of $64.61; that the machine or tool, or thing causing his injury was an automobile. Question 24, is as follows: “Describe fully how the accident occurred, and state what the employee was doing when injured. (A) Head-on automobile collision while employee was driving his car on regular company business. . . . “Question No. 27, probable length of disability, two months.” At the time this exhibit was offered, Mr. Hawkins, the attorney for the Red River Lumber Company, made the following objection: “Let the record show that I object to the admission of the evidence of the answer typed on Exhibit 6, to questions No. 24 and 27, on the ground that they are merely conclusions of the witness, but not based on his own knowledge, but hearsay.” If the court properly admitted this exhibit, then there is evidence to sustain the verdict in that Walter Gehrke was an agent or servant of the Red River Lumber Company at the time and place of the accident, and was acting in the course and scope of the employment of said company.

This exhibit was admitted on the theory that it was an admission by the defendant company as against their interest, and that such is competent evidence, for the jury to consider. In the early case of Chicago, B. & Q. R. Co. v. Coleman, 18 Ill. 297, the Supreme Court of our State, in considering the question of when a corporation is bound by the admission of its officers, uses this language: They have become numerous, and their operations extend into almost every enterprise of the country, demanding such powers and facilities, within their sphere of action, as belong to natural persons in the prosecution of the like enterprises; and being intangible and invisible beings, created by the law, they can exercise them through natural persons only. Unless they may be bound, in the ordinary affairs of the corporation, by the acts and admissions of their officers, so far as relates to the business usually transacted through such officers, they would enjoy an immunity incompatible with the rights of individuals, and destructive of the object of their creation. The president of a railroad corporation is treated by common usage as its head — an officer within and a part of the corporation, a mere artificial person, incapable itself of acting or speaking — and admissions of such officer, made in the execution of the duties imposed upon him, and concerning a matter upon which he is called upon to act, and which matter is within the scope of the authority usually exercised by him, are evidence against the corporation.”

In the case of Masonic Temple Safety Deposit Co. v. Langfelt, 117 Ill. App. 652, the plaintiff sought to recover money stolen from the plaintiff’s safety deposit box in defendant’s vault by reason of the defendant’s negligence. The plaintiff offered in evidence a letter written by the president of the defendant company in which he stated, that he had carefully examined the plaintiff’s claim, and an investigation lead him to the conclusion that the plaintiffs’ claim that the contents of the box had been tampered with, was correct, because other persons had access to the box by means of keys. The plaintiff offered in evidence this statement, .of the president of the defendant company as an admission against their interest. The Appellate Court held that it was admission against their interest and properly admitted the statement in evidence and cited Chicago, B. & Q. R. Co. v. Coleman, supra, and Lake Shore & M. S. R. Co. v. Baltimore & O. & C. R. Co., 149 Ill. 272.

In the case of Scovill Mfg. Co. v. Cassidy, 275 Ill. 462, a question of admission against interest of officers of a corporation was before the court, and the Supreme Court uses this language:

“It is strenously argued by counsel for plaintiffs in error that Adams’ and Eoblin’s testimony concerning Canchester’s admissions as to what was due defendant in error from the Canchester Company was improperly admitted in evidence over their objections. There can be no question, under the authorities, Canchester being the president and general manager in charge of the business of the Canchester Company, that his admissions would be competent against the Canchester Company itself as to the amount owed by that Company to defendant in error, as those admissions were made in the execution of the duties imposed upon him as general manager and concerning matters which were within the scope of his authority. (Chicago, Burlington and Quincy Railroad Co. v. Coleman, 18 Ill. 297; New England Ins. Co. v. Schettler, 38 id. 166; Lake Shore and Michigan Southern Railway Co. v. Baltimore, etc. Railroad Co., 149 id. 272; Carey v. Wolff Co., 72 N. J. L. 510; Paulson Mercantile Co. v. Seaver, 8 N. D. 215.) The general rule is, that where the declarations or admissions of the principal are made in the course of the performance of the business for which the surety or guarantor is bound, they are evidence against the surety or guarantor.” The Supreme Court of the United States in the case of Pan American Petroleum & Transport Co. v. United States, 273 U. S. 456, announces the same rule.

The evidence shows without contradiction, that Mr. Rinn is the active head and manager of the defendant company in the State of Illinois; that he has his office in Chicago and has been employed by the company for about 6 years; that the Red River Lumber Company is a Minnesota corporation, and is licensed to do business in Illinois; that its home office is in Westwood, California; that he, Rinn, made out the report as indicated by plaintiff’s exhibit 6; that he has charge of making out reports of accidents to any of the employees or anybody connected with the Red River Lumber Company, and when any accident or anything is reported to him, it is his business to report all accidents to the Insurance Company. This evidence shows that Mr. Rinn, in making out the report, represented the defendant, the Red River Lumber Company, as their officer and agent, and the report was made out in the regular course of business.

It is seriously contended that it was error for the court to admit this exhibit because the same was made out not on the personal knowledge of Mr. Rinn, but on hearsay, and therefore not binding as an admission against interest of the defendant, the Red River Lumber Company. In the case of Little Fay Oil Co. v. Stanley, 90 Okla. 265, 217 Pac. 377, the plaintiff, Stanley, claimed he was injured in the course of employment and brought suit under the Compensation Act. An award was allowed, and the case came before the Supreme Court. The respondent claims that there was no evidence to support the award, the company claiming that Stanley was not an employee, but that of one Miller an individual contractor. Upon the hearing the plaintiff offered in evidence a report filed with the Industrial Commission by the Oil Company 10 days after the accident, in which report it was stated, that the plaintiff was an employee on the day he was injured, in the course of employment, and that he had been employed by them one day as a timeworker at $14 per day. The Oil Company claimed this report was made through a misapprehension of fact by an officer of the company at Tulsa who acted upon the information received over the telephone, and this office was under a misapprehension of the facts and therefore the admission should not have been admitted as admission against interest. The court, in their opinion, uses this language: “The fact that the statements contained in the report of the employer were made by a person who did not have personal knowledge of the facts did not render the admission made in the report incompetent as evidence, but simply went to the weight to be given the admission as evidence. ’ ’ Sparr & Green v. Wellman, 11 Mo. 230.

“An admission is the statement of a fact against the interest of a party making it — but it is not essential to constitute it an admission, that the fact should have come under the personal observation of the declarant. Undoubtedly admissions of the latter kind are much stronger than where the declaration is of a fact, of which the party could have no personal knowledge. But where a party believes a fact upon evidence sufficient to convince him of its existence, his declaration of the existence of that fact, if against his interest, is evidence against him.” Jones on Evidence, section 296; Wigmore, Second Edition, section 1053; Ayers v. Metcalf, 39 Ill. 307; In re Irvine’s Estate, 102 Cal. 606, 36 Pac. 1013.

In the case of Kitchen v. Robbins, 29 Ga. 713, it is stated: “Are no admissions good against a party, unless founded on his personal knowledge? The admissions would not be made except on evidence which satisfies the party who is making them against his own interest, that they are true, and that is evidence to the jury that they are true. Admissions do not come in, on the ground that the party making’ them is speaking from his personal knowledge, but upon the ground that a party will not make admissions against himself unless they are true. The fact that he makes them against his interest, can be reasonably explained only on the supposition that he is constrained to do so by the force of the evidence. The source from which a knowledge of the facts is derived, is a circumstance for the jury to consider, in estimating the value of the evidence, but that is all.” Reed v. McCord, 160 N. Y. 330, 54 N. E. 737.

In the case of Stump v. Dudley, 285 Ill. 46, our Supreme Court was considering the admissibility of a statement of the defendant which the plaintiff claimed was admission against interest, and passing upon the question the court uses this language:

“The sole contention made is that the only evidence supporting the finding of fact of the Appellate Court was improperly admitted. On the trial in the county court plaintiff in error was called as a witness by defendants in error. On the trial in the circuit court the stenographer who took the testimony in the county court was called as a witness by the defendants in error and testified to the testimony given by plaintiff in error upon the trial in the county court with reference to the circumstances under which the note was executed and delivered by the deceased to the plaintiff in error. Plaintiff in error contends that this testimony was improperly admitted. No objection was made when the testimony was offered, either as to its competency or as to the form of the questions propounded to the witness. After the testimony of this witness had been concluded plaintiff in error moved to strike it, which motion was denied. The plaintiff in error was a party, and it was competent for defendants in error, on the trial, to prove any statements made by her at any time which were in any time which were in the form of admissions as to the consideration for the note or as to the circumstances under which it was executed and delivered. The proof of such admissions is not subject to the objection that it is hearsay where the statements are those made by a party to the suit and are offered as evidence by his adversary. Admissions of a party to a suit are always competent and admissible when offered by the opposite party. ’ ’

From a review of all of the cases cited by the appellant and appellee, it is our conclusion that the court properly admitted in evidence plaintiff’s exhibit 6, as an admission against interest of the defendant, the Bed Biver Lumber Company. This was an admission that the defendant, Walter Gehrke, at the time of the accident in question was an employee and agent of the defendant company, and was driving his car on regular company business at the time it collided with the car of the plaintiff’s intestate.

It is next insisted that the court erred in giving to the jury plaintiff’s Instructions No. 3 and 9. We have heretofore stated that there was sufficient evidence for the jury to base their verdict on the fact that Walter Gehrke was the agent and servant of the defendant, the Red River Lumber Company, and at the time he was driving the car was using it on the company’s business, therefore the Instructions No. 3 and 9 were proper, and there is evidence in the record on which to base them.

Complaint is also made that the court erred in refusing to give Instruction No. 1, tendered by the Bed Biver Lumber Company. This instruction informed the jury that the skidding of defendant’s car did not of itself constitute negligence, but is merely a circumstance to be considered by the jury in determining whether or not the skidding contributed to the accident complained of. We think this instruction was properly refused. It singles out certain specific things, namely, the skidding of the defendant’s car. It directs a verdict of not guilty. The skidding may have been only an incident to the damage done to the plaintiff’s intestate car. We think the language used by Judge Jett in the case of Peters v. Madigan, 262 Ill. App. 417 aptly applies to this instruction. “This instruction is bad, because it told the jury what amounted to negligence which was a question for the jury to determine. The instruction clearly invades the province of the jury. . . . The instruction calls attention to particular facts in the testimony on one side and omits any reference to certain facts shown on the part of the plaintiff.”

It is insisted by the appellant that the damages assessed by the jury are excessive. The pecuniary loss to the near relatives of a deceased person, is somewhat speculative. The man may have lived a long and useful life and may have died of natural causes in a short time after the time of the accident if he had not been injured. Under the circumstances as shown by the evidence in this case, we cannot say that the verdict of the jury and the judgment of the court is excessive.

The judgment of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    Anthony Panozzo and Filomena Panozzo, Appellants, v. City of Rockford, Appellees.
    Gen. No. 9,559.

      Opinion filed August 8, 1940.
    B. Jay Knight, J. E. Goembel and Frederick H. Haye, all of Rockford, for appellants.
    George T. Liddell, of Rockford, for certain appellee.
    A. V. Essington, Corporation Counsel, and Carroll H. Nelson, City Attorney, of Rockford, for certain other appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On October 13,1939, the city council of Rockford received three bids for the collection and disposal of all garbage, ashes, tin cans, rubbish and dead animals from both private and public property within the limits of the city. Before 1939, contracts of the city provided for the collection and removal of garbage during 8 months, and other waste matter, during 12 months. Before asking for bids for the year 1940, the aldermen were considering the advisability of entering into a contract requiring the collection and disposal of garbage during 12 months. Consequently, the city council directed that each bid be manifold and state the price of the collection and disposal of garbage during 8 months, and during the entire year with other wastes during 8 months and one-year periods. The council also required the bids for such service for the year 1940 alone, and for the three-year period of 1940, 1941 and 1942. On the bidding known as Regular Bid No. 1, which specified the collection and disposal of all garbage and dead animals from April 1, 1940, to November 30, 1940, inclusive, and all ashes, tin cans, rubbish and dead animals from January 1, 1940, to December 31, 1940, inclusive, the plaintiff bid $32,862; one Nemo Grespan bid $33,362; and defendant George H. Smith, $37,500. The city council, having determined to abide by the method of collection and disposal of refuse, as expressed in Regular Bid No. 1, by vote of 9 for the bid of the plaintiff and 11 for the bid of Smith, accepted the bid of Smith. The plaintiff, Anthony Panozzo, and his mother, Filomena Panozzo, have brought this suit to restrain the city from entering into a contract with Smith as a result of the acceptance of his bid.

The original complaint was filed by Anthony Panozzo and named the City of Rockford, its mayor, clerk, treasurer and Smith as defendants. - Count one alleged, generally, that the city council without lawful cause and reasonable basis, rejected the lowest bid which was Panozzo’s and prayed for the writ of injunction to restrain the city from entering into a contract with Smith. Count two, with allegations similar to those in count one, petitioned for the writ of mandamus directing the city and its officers to enter into a contract with Panozzo under his bid. Motions were made by the defendants to strike the complaint because it is not within the province of the courts by mandatory injunction, or mandamus, to control the exercise of discretion of a city council. Plaintiff thereupon asked and was granted leave to add Filomena Panozzo as a party plaintiff, and to file additional counts.

Additional count three, as amended, sets out that Filomena Panozzo is a resident and taxpayer of the City of Rockford; that Anthony Panozzo is ready, able and willing to perform the contract required by the city according to his bid; that Smith had the contract with the city for the collection and disposal of garbage and other refuse during the year 1939, during which time he engaged in business with various aldermen; that Robert Joyce, alderman from the second ward, acted as broker in writing workmen’s compensation insurance and surety bond for Smith in 1939, and received a commission therefor; that Joyce requested Smith to employ Joe Carabelli and Archie Ferguson, residents of the second ward, and that Smith did employ them solely at the request of Joyce; that Smith has agreed with Joyce that if he should get the contract for 1940, he will allow Joyce to write such insurance and surety bond; that such insurance and surety bond for 1940, have been written and Joyce has received a commission as broker; that J. Francis Haste, alderman from third ward, is a salesman for Smith Oil & Refining Company; that prior to obtaining the contract for 1939, Smith asked Haste to place a gasoline pump at the place where Smith’s trucks were kept; that Haste said he could not sell to Smith direct, but that Smith should buy his gasoline and oil at DeCarlo garage; that Smith did buy his gasoline and oil from DeCarlo; that prior to the vote on 1940 contract, Smith told Haste that if he got the contract for 1940, he would continue to purchase gasoline and oil from DeCarlo; that Harold J. Williams is alderman from seventh ward and in the junk business; that during 1939, Smith gave Williams part of the junk collected by Smith’s trucks being operated to collect refuse of the city during 1939; that prior to letting of the 1939 contract, Williams requested Smith to employ Robert Priddle, resident of the seventh ward; that pursuant to such request, Smith employed Priddle; that Oscar Hallberg is alderman from the eighth ward, and that prior to the letting of the 1939 contract, Hallberg asked Smith to employ Robert Loveland, Hallberg’s son-in-law, and Leroy Hallberg, alderman Hallberg’s nephew; that pursuant to Hallberg’s requests, Smith employed Loveland and Leroy Hallberg; that prior to letting the 1940 contract, Smith told Hallberg that if he received the 1940 contract he would continue to employ Loveland and Leroy Hallberg; that because of the facts stated, aldermen Joyce, Haste, Williams and Hallberg, who have made personal profits from transactions with Smith, were prejudiced in favor of Smith’s bid for the contract of 1940; that Joyce, Haste, Williams and Hallberg voted in favor of giving the 1940 contract to Smith; that they voted for Smith because of personal profits, privileges and favors obtained from Smith in the execution of the 1939 contract and because of profits, privileges and favors if Smith should obtain the 1940 contract. Additional count three prays for a writ of mandamus directing the city and its officers to execute a contract with Panozzo under his bid. Additional count four contains the same charging allegations as count three and prays for a writ of injunction to restrain the city from entering into, or if entered into, from carrying out the contract with Smith under his bid. The complaint also prays for general relief.

The complaint also alleges that the vote upon the awarding of the contract to the bidders for the collection of the waste of the city for the year 1940, by the city council and by the aldermen of the city, was fraudulent, unfair and oppressive; that unless the prayer of the complaint is granted, the plaintiff and all other taxpayers of the City of Rockford will be forced to pay taxes of $4,638 unlawfully and without cause.

Aldermen Haste, Williams and Hallberg were given leave and they intervened as parties defendant. Counts, one and two, on motion of the defendants, were stricken. An answer was filed to counts three and four by the city, its mayor, clerk and treasurer. Separate answers were filed by the intervening defendants and by Smith. The answers deny the charging parts of the complaint. The answers of the intervening defendants substantially allege that the defendant voted in favor of 1940 contract being given to Smith because of satisfactory service rendered by Smith during 1939; that defendants believed Panozzo, under his bid, could not carry out the terms of the contract requiring the contractor to pay his employees $125 per month; that defendants had estimated the cost of operation under specifications as being over $36,000; that they were of the opinion that in the event Panozzo could not carry out the contract, service would be interrupted and that there would be delay in securing performance of the contract or damages under the faithful performance bond; that defendants knew Smith had necessary equipment and employees to carry out the contract; that Panozzo on the night the bids were opened, stated that he had not made arrangements for disposal of the garbage; that the health committee of the city had made a thorough investigation of bidders and unanimously recommended acceptance of Smith’s bid; that one bidder (Grespan), had not, in previous years, rendered satisfactory services under his contract to collect and remove the refuse of the city; that Smith’s services for 1939 were approved by the city health commissioner.

The hearing was before the chancellor who rendered an order finding from the evidence produced before him, “that none of the individual aldermen had any unlawful interest in said contract as alleged in said complaint; and that there was no fraud or misconduct on the part of the said aldermen in the awarding thereof.” The order denied the prayer for a writ of mandamus and the prayer for a writ of injunction and dismissed the cause for want of equity.

The phrase, '‘lowest secure bid,” found in sec. 319, ch. 24, Smith-Hurd Ann. Stats. [Jones Ill. Stats. Ann. 21.357], does not mean the lowest bidder financially only. It means more than that. It means that the bidder is, by experience and otherwise, capable of doing the work in a satisfactory manner. People v. Omen, 290 Ill. 59. It is not sufficient to overcome the presumption that the action of the city council in awarding the bid to Smith, was lawful and regular by an allegation that the bid was not awarded to the lowest bidder. (Hallett v. City of Elgin, 254 Ill. 343.) In the case of McGovern v. City of Chicago, 281 Ill. 264, 277, it is stated:

“In Johnson v. Sanitary District, 163 Ill. 285, the statute involved required that contracts which exceeded $500 should be let to the lowest responsible bidder. The lowest bid was $145,112 lower than the second bid. The sanitary district trustees rejected the lowest bid and awarded the contract to the next highest bidder, whereupon the lowest bidder instituted proceedings to compel the sanitary district to accept his bid. This court said on page 287 of the opinion: The mandatory injunction applied for to compel the letting of the contract to appellant is in the nature of a mandamus and is an attempt to control a discretion that is judicial in its nature. The duty of examining the proposals, determining the responsibility and awarding the contract is judicial in its nature and character, and the awarding the contract is a judicial act, which is not within the province of the courts to control by mandamus or mandatory injunction. [Citing numerous authorities.] ’ ” The chancellor did not err in denying the prayer of the third count for the writ of mandamus to compel the city council to award the contract to the plaintiff, Anthony Panozzo, under his bid.

Applicable to count four, it is stated in McGovern v. City of Chicago, supra: “Nor can the courts, in the absence of fraud, restrain the trustees from entering into such contract as they may award to the bidder.— Kelly v. City of Chicago, 62 Ill. 279.” There is no evidence in the record now before this court that there was actual fraud or fraudulent intent on the part of the aldermen who are charged in the complaint with improper conduct in awarding the contract to Smith. It is contended, however, by the plaintiffs that the court improperly rejected testimony offered by the plaintiffs tending, it is urged, to prove the allegation of fraud stated in the complaint. The question of the admissibility of the rejected evidence is deferred.

The chancellor filed a written statement giving his reasons for dismissing the suit, in which he held the complaint was without equity. From this statement it is clear therefrom, that the point was made by the plaintiffs that the contract with Smith under his bid is void, because the aldermen named in the complaint had an interest in such contract. The contention of the plaintiffs before the chancellor and this court is set forth in the following statement found in the case of People ex rel. Pearsall v. Sperry, 314 Ill. 205, 208:

‘ ‘ Contracts of a city in which the city officers join in making the same are prohibited by our statutes in all cases where such officers are directly or indirectly interested in the contracts, and any and all such contracts wherein the officers of the city are interested, either directly or indirectly, are declared to be null and void. (Hurd’s Stat. 1921, sec. 78, p. 337, and sec. 3, p. 2192; Crichfield v. Bermundez Paving Co., 174 Ill. 466.) A contract made in violation of an expressed statutory provision is inoperative and void and no recovery can be had thereon. (Citing cases.) ... If we attach any significance to the words used by the statute, ‘directly or indirectly interested in the contract, ’ we think the conclusion cannot be escaped that the officers of the city who are also employees of the contractor must be considered as indirectly interested in the contract, without regard to the fact that they derived no direct benefits from the contract itself. They would be more than human if they could make the same fair and impartial contract with the contractor as they could with another party with whom they had no relation, by way of employment or otherwise.”

It is our opinion that the evidence in the record before us does not show that the aldermen, named in the complaint, had such a direct interest in the contract to be made with Smith, within the meaning of the statute and the general law prohibiting contracts by a city council in which any of its members may be directly interested, as would justify this court in holding, as a matter of law, that the proposed contract with Smith would be void. Whether they had an indirect interest in the contract, which would annul the contract, is a question to be determined.

In the case of Edward E. Gillen Co. v. City of Milwaukee, 174 Wis. 362, 183 N. W. 679, it is stated: “We would not hold that under all circumstances a contract between a municipality and a corporation having an employee who is also a public officer of the municipality would he invalid. The compensation of the employee might be so slight or his employment so transient that there would arise no conflict of interest. ” In Tuscan v. Smith, 130 Me. 36,153 Atl. 289, 73 A. L. R. 1344, it is conceded that indebtedness of a person, with whom the city executes a lease, to a member of the town board of selectmen, does not necessarily create a pecuniary interest, directly or indirectly, of the selectman and vitiate his vote. It is plain from an analysis of the cases in the notes following the report of the Tuscan case in 73 A. L. R., that the question whether the relation of a debtor of a contracting party, to a public officer constitutes an interest within the statute or rule of common law against such officer being interested in a contract with the public, is to he determined from the facts and circumstances appearing in evidence. In the case of Wayman v. City of Cherokee, 204 Iowa 675, 215 N. W. 655, it is held that the question whether the relationship as creditor of a councilman with a contractor to whom was let a contract to do cement work for the city presented a question of fact as to whether the councilman was directly or indirectly interested in the contract. Also, the general rule is, that relationship of a public officer to a contractor is not a disqualifying interest making it unlawful for an officer to be interested in a public contract without proof that the officer has a pecuniary interest in the contract. (Thompson v. District Board of School Dist. No. 1 of Moorland Township, 252 Mich. 629, 233 N. W. 439, 74 A. L. R. 790, and cases cited there in the annotation, p. 792, et seq.; Tuscan v. Smith, supra.)

We have concluded that the question in this case before us for review is, whether the finding of fact by the chancellor that none of the aldermen named in the complaint had such an indirect interest in the business and welfare of Smith as would naturally tend to affect their judgment in their determination to let the contract under the bids which were received, is contrary to the manifest weight of the evidence. (People ex rel. Pearsall v. Sperry, supra, p. 210.)

During 1938 and 1939, defendant Smith had contracts with the city for the collection and disposal of garbage, ashes, tin cans and dead animals. Defendants Williams and Hallberg, with aldermen Thorstenson, Ingrassia and Forbes composed the health committee of the city council of the city of Rockford. Dr. N. O. Gunderson was the health commissioner of the city and had been such for several years.

On October 13, 1939, the health committee with the health commissioner held a meeting to consider the bids, which the bidders attended, and were ■ interviewed separately by the committee. The bid of Grespan was not seriously considered by the committee, because of complaints made by citizen, that he had not satisfactorily performed his contract with the city for the collection of its refuse in 1937. Members of the committee knew, and there is testimony in the record, that Grespan had made some of his employees pay back to him $20 per month in violation of his contract of 1937, to pay his employees $100 per month. The evidence shows that Grespan assisted Panozzo in preparing his bid and wrote the amounts of that bid before Grespan prepared his bid. There was an understanding between Grespan and Panozzo that the successful bidder of them would give a job to the other as his employee under the contract to be let under the bid. There is evidence that some members of the health committee were suspicious that there was a “hook-up” between Panozzo and Grespan making their bids. This surmise was correct. Information called for in the Panozzo bids, relative to the equipment to be used in collecting the refuse of the city, was in the handwriting of Grespan, and not definite. Statements in his bid were uncertain as to where he would throw the collected garbage. The terms of the contract required payment of $125 per month to each employee of the contractor. It was the opinion of the members of the health committee that Panozzo’s bid was too low under this requirement of the contract, according to information then in possession of the committee. The matter of equipment and disposal of the garbage was discussed by the committee with Panozzo. The health commissioner recommended that the bid of Smith be accepted. The committee unanimously adopted a report to be submitted to the city council that Smith’s bid be accepted. Alderman Forbes, who signed the report of the health committee, but subsequently in the council meeting voted to accept the bid of Panozzo, told Panozzo that the reason his bid was not recommended by the health committee was because Panozzo had made a poor showing before the committee; and that he should see the aldermen.

It is clear from the evidence that Panozzo endeavored to prove to the aldermen that his bid was not too low for him to pay the wages of $125 per month; that he could secure the necessary equipment; that he also assured the members of the health committee and other alderman that he would hire the same men as were employed by Smith to collect and dispose of the wastes of the city. It also appears that the aldermen were undecided whether the garbage should be collected during 12 or 8 months of the year. When the report of the health committee was submitted to the city council on October 16, by request the report was laid over for further investigation until October 23. At the meeting of October 23, the report upon a vote was laid over until the meeting of October 30, when the vote was taken and Smith’s bid was accepted. During the time between the meetings of the council on October 16, and October 30, the health committee decided again that it was for the best interests of the city that the garbage be collected and disposed of during 8 months of the year. The committee also considered the amount of Panozzo’s bid, and the question of wages under the contract. At the council meeting of October 30, it is clear from the record, that the aldermen were divided on the question whether Panozzo could give satisfactory service under his bid and in open meeting of the city council discussed various phases of the bids and the right of the council to accept a bid which was not the lowest.

The above facts are stated to show that the city council did not, so far as any evidence appears in the record, act arbitrarily, or secretly in letting the contract to Smith. The only contention that remains is that the aldermen named in the complaint were indirectly interested in awarding the contract to Smith.

There is no evidence that alderman Williams received junk from Smith. There is no proof that alderman Joyce, an insurance broker by occupation, solicited insurance from Smith prior to the awarding to Smith of the refuse collection contract of 1939, nor that he had any understanding with Smith about the insurance for that contract, (Henschen v. Board of School Inspectors of School Dist. No. 86, Will County, 267 Ill. App. 296.) The fact that relatives of alderman Hallberg were employed by Smith when the city council voted to let the contract to Smith did not, without further proof, disqualify Hallberg from voting to let the contract to Smith. (74 A. L. R, supra.) The evidence is to the effect that Smith made application to John H. Camlin Company for workmen’s compensation insurance and surety bond for the 1940 contract; there is no proof in the record that Joyce had any pecuniary interest in the premiums which Smith would pay for his insurance and surety bond for the 1940 contract.

Smith testified that for several years before 1938, he had bought his oil and gasoline from DeCarlo, who was a friend of his. The fact, as shown by evidence, is that Haste is a salesman for the Smith Oil & Refining Company from whom DeCarlo purchased oil and gasoline. Alderman Haste testified that he received no credits nor commissions from Smith’s purchases of oil and gasoline from DeCarlo and there is no evidence to the contrary. We would not be warranted under these facts alone, to draw the inference, and imputation that Haste had such an interest in the welfare of the business of Smith, or that of DeCarlo, as conflicted with his duty to award the contract now in question according to his judgment for the best interests of the City of Rockford.

Alderman Williams was called as an adverse witness by the plaintiffs. He testified that in 1938, he voted against the acceptance of Smith’s bid for the removal of city refuse, but voted for him to receive the 1940 contract now in question. That between those times, Robert Priddle, a voter residing in Williams’ ward, asked him to introduce him to Smith; that he introduced Priddle to Smith at the city hall and asked him to give Priddle consideration as his employee if he had a place open. That he did not consider the employment of Priddle as a favor to him. Smith employed Priddle in 1939. Smith also employed two men residing in alderman Joyce’s ward at the request of Joyce. Smith employed the son-in-law and the nephew of alderman Hallberg at the request of Hallberg. Joyce did not testify. Each of the other two aldermen testified that he did not receive a pecuniary consideration because of the employment of the men mentioned. There is no evidence in the record that they did. When plaintiff Panozzo was questioned by the aldermen what equipment he would use, and the men he would employ if awarded the contract for 1940, under his bid, he stated that he would use the same type of equipment and the same men as Smith was using and employing under the 1939 contract.

Statutes prohibiting public officers from having an interest in contracts executed in their official capacity are declaratory of the common law. 46 C. J. 1038; McCarthy v. City of Bloomington ex rel. McIntosh, 127 Ill. App. 215; Dillon on Municipal Corporation, sec. 531. We find no cases which were decided under any other rule than that the interest in a contract which disqualifies a public officer from executing such a contract in his official capacity, must be pecuniary. As is stated in Meyer v. City of San Diego, 121 Cal. 102, 53 Pac. 434, such interest must be certain, definable, pecuniary or proprietory. The interest must be financial. Mumma v. Town of Brewster, 174 Wash. 112, 24 P. (2d) 438, 440. The cases herein referred to which involved the question of relationship of the public officer with the person with whom he entered into a contract in his official capacity, or the question of the relationship of debtor to the officer, turn on the facts whether the officer is financially interested in the contract.

It is contended by the plaintiffs that the court erred in sustaining objections, of the intervening defendants, to testimony by Grespan that Smith told Grespan that he could depend on certain aldermen because he employed the nephew of alderman Hallberg and that he was going to give all his insurance to alderman Joyce. The testimony was held admissible as against Smith, but not competent against the other aldermen. The ruling of the court was correct under the rule prohibiting the reception of hearsay evidence.

The judgment of the trial court is affirmed.

Affirmed.


author: Mr. Justice Huffman Me. Justice Dove

text:
    William H. Allbee et al., Appellees, v. City of Aurora, Appellant.
    Gen. No. 9,532.
    Opinion filed August 8, 1940.
    John P. Hart, Corporation Counsel, and Charles A. Darling, Assistant Corporation Counsel, for appellant.
    Leonard C. Mead, of Geneva, Sears and Solfisburg, and Roy J. Solfisburg, all of Aurora, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This .is an appeal from a decree in accounting, finding appellant city liable in the .sum of $33,994.82, and judgment for said amount. Appellees consist of some forty persons owning special assessment bonds issued by appellant pursuant to a local improvement project. Their bonds are a part of the seventh, eighth, ninth and tenth instalments. The facts in the case are not in dispute. The city collected the special assessment taxes due under this project. Such money was placed in a general corporate fund and expended. There are no records to show what became of the money or for what purpose it was used.

It is urged by appellant that the city is not liable to appellees for the money so collected, unless the same /was diverted to general corporate 'purposes. Such position was accepted by this court in the case of People ex rel. Anderson v. Village of Bradley, 288 Ill. App. 162. The court was in error in this respect. People v. Bradley, 367 Ill. 301. In this case it is held that money collected from a special assessment is a trust fund for the payment of the bonds issued for the cost of such improvement; and that the city cannot lawfully appropriate it to other corporate uses. It is there said: “The law will not countenance the evasion by a village of its debt, by either its willful or negligent failure to apply towards the discharge of that obligation, funds collected by it for the specific purpose of meeting such demand.” (p. 307.)

Contracts are the springs of trade and commerce. Without them there could be no stability of the present or the future. The integrity of man and State is gauged thereby. The administration of public affairs can only be performed by individuals, chosen for such purpose. Such work carries responsibilities. Surely the management of a large and busy city is a matter for which men cannot be too intelligent or honorable. Public responsibility and integrity must be recognized and enforced, as well as individual responsibility. Municipal and State defaulters not only destroy public faith in government, but they produce private dishonesty. They cannot well command the individual to live up to his obligations, without leading in such respect themselves. For the citizen and taxpayer who has already paid this special assessment tax, to be again taxed, is a situation for which no excuse can be entertained, and none is offered. No uncertainty can be said to exist with respect to the disposition of special assessment funds.

The judgment of the circuit court is affirmed.

Me. Justice Dove

specially concurring: I concur in the conclusion that this judgment should be affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    Thomas J. Craddick et al., Appellants, v. Cotta Gear Company and Leonard Lundin, Appellees.
    Gen. No. 9,545.

      Opinion filed August 8, 1940.
    Louis A. Schultz, Jr., and Thomas F. Ryan, both of Rockford, for appellants; Donald M. Keenan, of Chicago, of counsel.

      Hall & Dusher and Large & Reno, all of Rockford, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This was an action by appellee, Lundin, as trustee in bankruptcy of the Cotta Gear Company, to vacate an execution sale made by the sheriff of Winnebago county. In November, 1936, judgment in the sum of $4,201 was recovered against the Gear Company by Thomas J. Craddick. In May, 1939, Craddick assigned this judgment to John D. Powers for $300. Thomas P. Ryan acted as attorney for Powers in the purchase of the judgment. Shortly after Powers became assignee of the judgment, he caused an alias execution to issue and a levy to be made on the personal property of the Gear Company, which consisted mainly of tool machines. Pursuant to such levy, the sheriff posted notices as provided by statute, for the sale of the property levied upon, fixing the time of sale at 10 o’clock a.m. on June 6, 1939, and the place at the plant of the Gear Company.

The sheriff appeared at the time and place designated for holding the sale. He announced to such persons as were present that the sale was postponed to the hour of 10 o’clock a.m. on June 13, 1939, and wrote upon the notice of sale which was posted at the plant of the Gear Company “continued to the 13th day of June, ten o ’clock A.M. at Cotta Gear Company. ’ ’ Whereupon the sheriff left the premises. Later in the day, one of the deputy sheriffs talked to one of the attorneys for Powers by telephone, regarding the furnishing of bond to indemnify the sheriff with respect to the property to be sold. It appears that arrangements were made for the issuance of the bond in Chicago, and that upon such information coming to the attention of the sheriff, he returned to the plant of the Gear Company at about four o’clock in the afternoon of June 6, and struck from the notice of sale the continuance thereof to June 13th, and inserted the continuance to be to four o ’clock p.m. on June 6th; and proceeded to make sale under the execution. The property was sold to Powers, holder of the judgment, by and through one of his attorneys.

It appears that Ryan, when he learned from the attorney acting for Powers, that the sale had been postponed due to request of the sheriff that bond be furnished to indemnify him, telephoned the Chicago office of a Surety Company and arranged for such bond to issue. Ryan was attorney for the Surety Company. After the sale, Ryan, representing Joseph Behr & Sons, contacted the attorney for Powers with respect to buying the property which Powers had purchased at the execution sale. On the' next day, June 7th, an agreement was reached between Ryan, as representative of Joseph Behr & Sons, and the attorney for Powers, for the purchase of the property for the sum of $2,500 plus the expenses of sale and attorney fees. Pursuant to such agreement, a check passed to the attorneys for Powers for the purchase of the property. This check was never cashed. It is claimed by Ryan as trustee for Behr & Sons, that Powers was later paid $2,500 in cash at Ryan’s office on or about July 6 or 7,1939. It further appears that Behr & Sons had knowledge of all acts of the sheriff incident to the sale.

Involuntary bankruptcy proceedings were filed against the Gear Company on June 13, 1939, and the company was adjudged bankrupt. On July 28th, the first meeting of creditors was had and appellee Lundin selected as trustee. Upon becoming trustee, he took possession of the property of the bankrupt, consisting of the subject matter of the sheriff’s sale; and secured leave to file his petition to set aside the sheriff’s sale of the property. Such petition was filed in the circuit court of Winnebago county. Motions by Powers and by Ryan as trustee, were filed and denied. Ryan as trustee, was granted leave to file intervening petition. The issues were made up and the cause heard by the court. The court found that the sale of the property as made by the sheriff was without right, power or authority, and declared the same to be void, finding that no title passed by virtue thereof to the said Powers, and that no title passed from Powers to his assignee Ryan, trustee. This appeal has been prosecuted by Powers and Ryan, trustee, to reverse the order and judgment of the trial court in vacating the sheriff’s sale.

It is urged by appellants that a sheriff is vested with discretionary powers in conducting an execution sale; that irregularity or lack of notice does not necessarily void such a sale, in the absence of fraud; that a person by his actions, may waive the right to complain of any such irregularities; and that a trustee in bankruptcy is in privity to the bankrupt.

It is urged by appellee that the power of a sheriff to sell personal property upon execution, is governed by the statute; that notice of sale must be posted in three public places; that if the officer postpones the sale, for more than one day, notice of such postponement shall be given by notices posted in the manner as required in the first instance; that a proceeding to quash the writ of a sheriff on an execution and to set aside a sale, shall be addressed to the court issuing the writ under which the sale was made; that after a sheriff makes a definite postponement of sale, he then has no right to hold the sale until the time fixed in the postponement; that an execution creditor is charged with knowledge of irregularities connected with the issuance of an execution and the sale thereunder; and that the attempted sale as made by the sheriff in this case, was void and did not pass title to the judgment creditor upon whose behalf the property was purchased.

Execution sales are not usually considered judicial sales, in a strict sense, such as sales in partition or by administrators and guardians. Execution sales however must be supported by a judgment or decree and are thus the result of judicial proceedings, but the judgment is not for the sale of any specific property. It is for the recovery of a designated sum of money. The court gives no directions concerning the property to be levied upon, and usually has no control over the sale beyond the power to set it aside for noncompliance with statutory provisions governing same. A sale that is ordered by the court, conducted by an officer of the court appointed for such purpose, and which requires the approval of the court before it can be treated as final, is clearly a judicial sale. The chief differences between execution and judicial sales, are, that the former are based on a general judgment for a certain amount of money, while the latter are based on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the directions of a statute, while the latter are made by the agent or officer of a court in pursuance of the directions of the court; in the former, the sheriff is the vendor, while in the latter, it is the court; in the former, the sale is usually complete when the property is struck off to the highest bidder, while in the latter, it must be reported to and approved by the court.

An execution, though a judicial writ, commands the performance of a ministerial act. No execution sale ought to take place at any other time than that fixed by the notice of sale. A sale made in violation of this rule will ordinarily be vacated or confirmation refused, if the irregularity is suggested to the court within a proper time. If a sheriff may interfere and dispense with one of the requirements of the statute regarding execution sales, it would follow that he may so do with another section or requirement, and thus in his unlimited discretion, might dispense with all provisions regarding such sales. Courts of law will not often aid the defective execution of a statutory power. In this State, notice of an execution sale is required by the posting of notices thereof in three of the most public places where the sale is to be had, at least 10 days prior thereto, which notices shall specify the time and place of the sale. The object of this notice is too obvious to require any detailed description. It is designed to inform the general public of the property to be sold, the time, place and terms of the sale; and of the persons whose interests are thus to be subjected to an involuntary transfer. Ordinarily the notice of sale might be considered as for the benefit of the defendant. However, there might be instances in which his creditors would be prejudiced, and a waiver of improper notice by the defendant should not be permitted to preclude any such creditors from avoiding or vacating the sale, by appropriate method. A defendant is entitled to prosecute an action to set aside such sale, unless from some cause he has ceased to be prejudiced or affected by it. Strangers usually have no right to interfere with the management of an execution sale nor to complain of its result. And it may be considered that a defendant who has become bankrupt and has in such proceedings been divested of his property, has become a stranger in interest thereto, and is so situated that it has become a matter of indifference to him whether the sale be supported or overthrown. However, in this instance, the party objecting, stands in the relationship as trustee for the creditors of the judgment debtor.

The power of the officer to adjourn this sale, exists by statute. Chapter 77, sec. 52, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.202]. In case of an adjournment, it is provided by the above section of statute, that should the postponement or adjournment exceed one day, notices thereof shall be posted. It would therefore appear that this provision of statute contemplates that notices of such postponement shall be posted as required in the first instance. The officer making execution sale, is invested with a wide discretion with respect to adjourning the same to a later day. However, this discretion must be exercised by the officer himself, and within limits of the power granted. He cannot delegate it to the parties nor to their attorneys. It appears in this case that the sheriff made a definite postponement of the sale from June 6th to June 13th, designating it to be had at the same hour and place on June 13th, as fixed for June 6th. Due to solicitation on the part of appellant Ryan, and attorneys for appellant Powers, the sheriff returned to the plant of the Gear Company at about four o’clock in the afternoon of June 6th, when he struck off the property to the attorney for appellant Powers, who was the holder of the judgment and who had caused the execution to be issued under which the sale was had. We do not consider it within the power of the officer nor within the contemplation of the statute, that after a definite postponement of an execution sale, which is for a longer period than one day, that he can subsequently enter into any agreement with the judgment debtor or his representatives, to exercise in any particular manner his official powers with respect to such postponement, so as to void that previously made and announced to the purchasers present, and proceed to hold the sale at a later and different hour in the day upon which his announcement of postponement had been made. Such would be against public policy, as well as contrary to the fair and reasonable intendment of the statute regulating such sales.

The trial court in commenting upon the testimony of appellant, Powers, in his written remarks, stated that he was a clerk in the bookkeeping and accounting-department of an insurance company; that this was the first judgment he had ever bought; that he did not know the location of the company; that he did not know anything about the machinery; that he did not know where he got the money with which he bought the judgment; that his connection with the whole transaction seemed shrouded in mystery and uncertainty; that when he received the $2,500 from Behr & Sons, he did not deposit it, but took it home; that he could not testify what he did with the money, and did not know where the balance of it was; and that the bill of sale from Powers to Ryan, as trustee for Behr & Sons, has never been delivered to them. The trial court found that to permit this sale to stand under the circumstances in this case, would open the door to fraud and collusion; that the sheriff although vested with discretion, yet was vested with power to act only by virtue of the statute; and that it was not within the contemplation of such statute that the sheriff could go before bidders at the time and place fixed by a proper notice of sale and declare that the sale was postponed for one week, and then later in the same day conduct such sale, .as was done herein.

We are of the opinion that after the sheriff acted in his official capacity and in the manner provided by statute, by publicly announcing a postponement of this sale from 10 o’clock a.m. on June 6th, to 10 o’clock a.m. on June 13th, that he was then powerless to return to the plant of the Gear Company at four o’clock in the afternoon of June 6th, and make sale of the property levied upon, as was done herein. The order and judgment of the trial court is therefore affirmed.

Motions were filed by the respective parties to this suit to strike certain portions of the statement, brief and argument of the other. The several motions were duly considered in the disposition of this cause, and therefore no orders thereon are deemed necessary.

Judgment affirmed.


text:
    The Maccabees (A Fraternal Benefit Association) v. Harry O. Stone et al., Appellants. Etta Meisser, Appellee.
    Gen. No. 9,565.
    Opinion filed August 8, 1940.
    F. B. Brian, of Toulon, D. W. Evans and W. W. Dunn, both of Peoria, and J. E. Richards, for appellants.

      Jack Rauch and Hunter, Kavanagh and McLaughlin, all of Peoria, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a bill of interpleader filed by the Maccabees, a fraternal benefit association, directed against appellee and appellants. The suit has to do with the disposition of the proceeds of a certain benefit certificate held by John A. Warner in the association, at the time of his death. Appellee is a sister of the deceased, and appellants are the trustees of the John C. Proctor Endowment.

Appellants as trustees of the Proctor Endowment, maintain a home for the aged, pursuant to the will of John C. Proctor, wherein he provided for the establishment and operation of such a home as a charity for the poor and aged of the city of Peoria.

On or about November 6, 1926, Mr. John A. Warner and his wife, became inmates of this home. Prior to their entrance, they were required to make application therefor upon the blanks as used by appellants, and to execute an entrance contract upon the printed forms used by appellants. They were each required to deposit with appellants, the sum of $550.

Mr. Warner had a benefit certificate in the Maccabees. His application for admittance to the home, discloses this policy as being in the principal amount of $1,000. Mrs. Warner was named as beneficiary. She predeceased the insured. No change was made with respect to the beneficiary following her death. Mr. Warner died on November 29, 1938, with the policy in force.

Neither the policy nor the bylaws of the benefit association are before us. However, that section of the bylaws providing for the payment of death benefits in case of the death of the beneficiary prior to the insured, does appear. It is upon this provision of the bylaws that appellants base their claim for recovery. The pertinent portion of that provision is as follows: “Sec. 347. Death of All Beneficiaries. — In the event of the death of all beneficiaries named in a certificate before or at the time of death of the member, if no other designation has been made, the benefits shall be paid first to the widow or widower, if living; if no widow or widower, to the children, including adopted children; if no children, benefits shall be paid in the following order: Dependent or dependents, person or persons upon whom the member is dependent, mother, father, adopting parents, sister, and brother, grandparents, grandchildren. ’ ’

The question to be determined herein is, to whom the benefits shall go as between appellants and appellee Etta Meisser, a sister of the deceased.

Pursuant to the terms of the entrance agreement, it was provided that Mr. Warner should turn over and transfer by proper instruments of conveyance, all property of every kind which he might after acquire. It was also provided in the entrance contract that appellants might discharge or expel the inmate at any time, without assigning any reason or cause therefor. In this suit appellants urge that the entrance agreement did not constitute a legal contract and was void in the first instance. They urge two reasons in support of this contention: First, that they were not bound by the provisions of the contract to perform any duties toward Mr. Warner; that they had the right to discharge or expel him at any time without assigning any cause or reason therefor;.that the instrument was therefore lacking in mutuality; that the purported contract was nothing more than a disciplinary agreement with an additional requirement of a small payment in order to perpetuate and continue the cause of charity; they next urge that assuming it was in part a legal contract, yet the provision that the inmate should turn over and convey to them all after acquired property, would render such contract void, as against public policy. They cite in this respect Elliott on Contracts, vol. 2, sec. 782, p. 123, where it is stated, “A contract by which one entering a home for aged men agreed that should he by devise, legacy or otherwise, become the owner of any property whatever, the home should have the same, has been declared against public policy.” In support of this statement, the author cites the case of Baltimore Humane Impartial Soc. & Aged Women’s & Aged Men’s Homes v. Pierce, 100 Md. 520, 60 Atl. 277, 70 L. R. A. 485. We shall refer to this case later.

It is the position of appellants, that since the entrance contract was void, they are entitled to the benefits of the policy under the classification of, “person or persons upon whom the member is dependent, ’ ’ as provided by sec. 347, of the bylaws of the association.

With reference to the question of lack of mutuality in the contract, appellee replies, that a contract lacking in mutuality, when fully performed by the parties, loses its defective character, and becomes mutual by the performance of the parties to it. The general rule is that want of mutuality is no defense where the contract is executed. Plumb v. Campbell, 129 Ill. 101, 107; 17 C. J. S. 448, sec. 100 (c). With respect to the claim of appellants that the contract is contrary to public policy, appellee replies that after the same had been fully performed, neither of the parties could invoke the aid of a court to undo it. In this respect appellee cites Black on Recission and Cancellation, 2nd ed. Under the subject of contracts contrary to public policy, in the 1st ed. vol. 1, par. 322, p. 819, it is stated, “After such a contract has been fully executed, neither of the parties can invoke the aid of the courts to undo it or cancel the instruments in which it is embodied, because, both parties being equally implicated in the illegal transaction, the courts will leave them where they stand, helping neither. ’ ’ The text cites Baehr v. Wolf, 59 Ill. 470. To this reference might be added, Parsons v. Ely, 45 Ill. 232, 245; Vock v. Vock, 365 Ill. 432; 17 C. J. S. 656, sec. 272.

Mr. Warner left no widow, no children, and no dependents. Under such circumstances, it is provided by the foregoing section of the bylaws that the benefits shall be paid to the, “person or persons upon whom the member is dependent, mother, father, adopting parents, sister, and brother, grandparents, grandchildren. ’ ’ As above stated, it is the position of appellants that they are entitled to the benefits, under that classification of the above provision expressed by the words “person or persons upon whom the member is dependent.” This classification preceding that of “sister,” appellants therefore urge a prior right to the benefits to that of appellee.

This brings us to a consideration of the question, whether the relationship of dependency existed between the inmate and appellants, so as to bring them within the scope of the above classification.

Assuming the entrance contract was void as urged by appellants, then they were under no legal obligation to keep Mr. Warner or to render- to him any services of the nature rendered. Under such circumstances, appellants cannot contend that the maintenance and assistance furnished Mr. Warner wa's by virtue of any obligation upon their part, legal, moral or otherwise. Therefore, whatever maintenance and assistance was so rendered, must be considered as purely voluntary, based upon charitable motives, and for purely charitable purposes, pursuant to the trust created by Mr. Proctor. We are unable to determine whether the bylaws of the association attempt to define of what the state of dependency shall consist, with respect to the above provision. Hence, we must assume that it shall be a legal dependency, as the same is contemplated by statute, and the term as there used does not include means of support which are furnished, purely voluntarily. Royal League v. Shields, 251 Ill. 250, 254, 255; Women’s Catholic Order of Foresters v. Heffernan, 283 Ill. 429, 436, 437. It is obvious that unless the maintenance and assistance rendered by appellants was by virtue of the entrance contract, then it was rendered as voluntary charity, without any legal or moral obligation so to do. As we have above seen, charity voluntarily bestowed, without any legal or moral obligation, does not create a relationship of dependency, within the meaning of the statute.

Appellee urges that the entrance contract was not void, citing in this respect, Sisters of Third Order of St. Francis v. Guillaume, 222 Ill. App. 543; Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180; Fidelity Union Trust Co. v. Reeves, 98 N. J. Eq. 412, 125 Atl. 582,129 Atl. 922. We shall refer to this case later.

We do not consider the occasion exists in this appeal calling for a determination of the validity of the entrance contract, for two reasons: First, appellants do not seek a recovery of the benefits by virtue of such instrument; and second, we are not of the opinion that the benefits now due under the policy can be considered as after-acquired property by Mr. Warner, as they did not accrue until after his death, and cannot be considered as having inured to his benefit. Hence, we do not consider them as coming into his possession within the terms of the entrance contract, as after-acquired property, because, that provision expressly recognizes that such property must come into the actual possession of the inmate, as it provides for the conveyance thereof by such inmate to appellants, by due and proper instruments of conveyance.

The case of Baltimore Humane v. Pierce, supra, cited by appellants in support of their contention that the contract was void for public policy, because it undertook to bind the inmate to convey to appellants all after-acquired property, does so hold. However, that action was one at law, where assignments of possibilities are not recognized. A different rule obtains in equity. Thornton v. Louch, 297 Ill. 204, 210; Dumont, Roberts & Co. v. McDougal, 200 Ill. App. 583. Other Illinois cases to the same effect will be found in the annotations in 17 A. L. R. 601, where it is stated that it is well established that a person may make transfer of an expectancy which will be enforcible in equity. This distinction is well drawn in the case of Fidelity Union Trust Co. v. Reeves, supra. In that case the entrance contract contained a provision on the part of the inmate that she would turn over and convey to the home all after-acquired property. Shortly prior to her death, she became possessed of an estate by inheritance. Following her death, a suit in equity was instituted by the trust company, to have determined to whom it should pay over the money in its possession, as between the home and the next of kin of the deceased inmate. There, the next of kin claimed the contract void for the same reasons appellants here urge. The fund was ordered paid to the Home. However, it will be observed that the inmate became possessed of the estate during her lifetime.

We find nothing in this contract which appears to be prejudicial to the public welfare, sound morality, civic honesty, or such as to be considered as working a fraud upon Mr. Warner. The home agreed that in case it expelled him, and he had paid to it a sum of money in excess of the per capita cost of keeping him, to return any balance due. The purpose and tendency of the contract are wholesome. Mr. Warner and his wife were aged people who desired to live the balance of their lives in the private seclusion of the home maintained by appellants, free from the searing and wrinkling care of economic worry. Needing the attention that comes with advanced years, they sought the benefits and care of this home. Here they both lived until their death.

Under the circumstances existing in this case, we are of the opinion that the bylaws of the association must control as to the disposition of the benefits. We are not of the opinion that appellants can be classified in the designation of “person or persons upon whom the member is dependent,” because it is apparent that appellants must be considered as having rendered the services either by virtue of the contract, or as voluntary charity. We see no relief that can be granted appellants in this case.

The decree of the trial court is affirmed.

Decree affirmed.


author: Presiding Justice Denis E. Sullivan.

text:
    A. B. C. Electrotype Company et al., Appellants, v. Schroeder Brothers Company, Appellee.
    Gen. No. 41,080.
    opinion filed June 19, 1940;
    rehearing denied September 10, 1940.
    Teller, Levit, Silvertrust & Levi, for appellants; A. F. W. Siebel and Arthur F. Siebel, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


author: Justice Hebel.

text:
    Frances Ann Kremer, Minor, by Albert E. Kremer, Her Father and Next Friend, Appellee, v. The Vim Company, Appellant.
    Gen. No. 41,187.
    opinion filed June 19, 1940;
    rehearing denied September 10, 1940.
    Schuyler & Hennessy, for appellant; Lawrence Nelson, Jr., and Jay Stough, of counsel; W. A. Leopold and Julius F. Trefz, for appellee, Friedberg & Bublick, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Justice Dady.

text:
    People ex rel. Hazel Stanley, Appellee, v. Ray Hunsaker, Appellant.

      opinion filed July 2, 1940.
    H. E. Skinner, for appellant; Walter J. Schuwerk, for appellee.
   Opinion by

Justice Dady.

“Not to be published in full.”


author: Justice Huffman.

text:
    W. H. Dyer, Administrator of Estate of Volney Ellsworth Love, Deceased, Appellant, v. Martin Dooley, et al., Appellees.
    Gen. No. 9,542.
    opinion filed August 8, 1940.
    Eben B. Gower, for appellant; W. H. Dyer, pro se. No appearance for appellees.
   Opinion by

Justice Huffman.

“Not to be published in full.”


author: Mr. Presiding Justice Riess

text:
    People of the State of Illinois, Defendant in Error, v. Grant Stamey, Plaintiff in Error.
    Gen. No. 9,233.

      Opinion filed July 25, 1940.
    Rehearing denied October 1, 1940.

      Lynn S. Corbly, of Champaign, for plaintiff in error; F. T. Carson and Lloyd S. Engert, both of Urbana, and T. E. Lyons, of Champaign, of counsel.
    Fred B. Hamill, State’s Attorney, for defendant in error; C. H. Swick, of Urbana, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Plaintiff in error, Grant Stamey, seeks to review and reverse a judgment of conviction entered against him on the 25th day of September, A. D., 1939, in the county court of Champaign county, Illinois, after trial by a jury upon an information filed on April 13, 1939, by the State’s Attorney of said county charging said Stamey with gaming in violation of the provisions of sec. 1, para. 412, of the Criminal Code, being ch. 38 of Ill. Rev. Stat., 1939 [Jones Ill. Stats. Ann. 37.360], prohibiting the sale of lottery “policies” or tickets.

Numerous errors were assigned, the principal of which related to alleged failure to substantially comply with statutory requirements concerning the preparation of jury lists and of ordering, selecting and summoning veniremen to serve upon the petit jury panel, some of which objections were raised in the trial court by defendant’s motions to challenge the array and tales-men and to quash the venires and jury panel, which motions were overruled by the court. Further assignments of error concerned the admission of alleged incompetent and prejudicial testimony and the giving and refusal of certain instructions.

From the original and additional abstracts and record herein, it appears that on August 9,1939, the clerk of said court, pursuant to an order entered on said date, caused to be drawn from the jury box a venire of thirty jurymen who were duly summoned to appear for impanelment and service in said court on September 6, 1939, when the above tiause and certain other cases were set for trial. Twenty-seven of the men appeared in open court on that morning, of whom thirteen were excused from service on the regular panel for good cause shown. The court ordered the sheriff of Champaign county to summon ten additional jurors from the body of the county, who were forthwith called and appeared in court. This procedure was objected to by oral motion of plaintiff in error’s counsel, and the names of eighteen additional jurymen were forthwith ordered by the court to be drawn from the jury box to complete the regular panel of twenty-four jurors and were so duly drawn and summoned to appear for duty at nine o’clock on the following morning. Defendant’s motion to quash was thereupon denied, and the case, which had not been called for trial, was also set down for hearing on the following morning.

The original venire of thirty jurors, of whom twenty-seven appeared and thirteen were excused, together with the additional venire of eighteen jurymen so drawn from the jury box to complete the panel were names of men who had been duly selected and placed upon the jury list of 10 per cent of the legal voters of said county by the board of supervisors thereof at their annual meeting in September, 1937. Defendant contends that no additional list was made in September, 1938, or subsequent thereto by the board of supervisors. On the morning of September 7, 1939, when the case was called for trial, the ten talesmen called from the body of the county were excused, defendant’s oral motions to challenge the array and quash the panels were renewed and again overruled. The jury was selected from veniremen whose names had been so drawn out of the jury box, said jury was impanelled, the cause tried, a verdict of guilty returned against the defendant, his respective motions for a new trial and for parole on probation were denied by the trial court, judgment of conviction on the verdict and sentence duly followed, and the cause comes to this court for review upon writ of error.

It is objected that twenty-four jurors from the regular panel were not present and impanelled in open court on the evening of September 6, 1939, when the jury was partially impanelled and the ten talesmen who were called by the sheriff from the body of the county by order of the court were present in court, the remainder from which the regular panel was so completed not appearing in open court until the following morning.

It is provided in substance by sec. 12 of ch. 78, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.235], that the judge shall examine the jurors who appear and if more than twenty-four qualified petit jurors not subject to exemption shall appear and remain after all excuses are allowed, the court shall discharge by lot the number in excess of twenty-four and that “if for any reason the panel of petit jurors shall not be full at any time the clerk of such court may again repair to the office of the county clerk and draw in the same manner as at the first drawing, such number of jurors as the court shall direct, to fill such panel, who shall be summoned in the same manner as the others, and if necessary, jurors may continue to be so drawn and summoned from time to time until the panel is filled.” The above section further provides that in case a jury is required in any trial before the panel is filled as above provided, the court shall direct the sheriff to summon from the bystanders or from the body of the county a sufficient number of persons having the qualifications of jurors to fill the panel in order that a jury to try such cause may be drawn therefrom.

Before passing upon defendant’s oral motions on September 6th, the court had duly ordered the clerk to draw the additional names to complete the regular panel of twenty-four from the jury box to appear for impanelment and service on the morning of September 7th. This was in strict compliance with the requirements of the statute. The case had not been called for trial, but was set for trial on the following day, when the above motion of the defendant was renewed and properly denied by the court before proceeding with the trial.

It was held in People v. Lembke, 320 Ill. 553, 151 N. E. 535, that where there are less than the required twenty-four jurors on the panel, names should be drawn from the jury list by the clerk of the court and those persons summoned in order to make the required number, even though to avoid delay talesmen are summoned from bystanders by the sheriff to make up the required number for the trial of a particular case.

Here, after the order of the court that additional jurors be drawn to complete the regular panel, it would have been proper to order the sheriff to call ten jurors from the body of the county or from bystanders to complete the jury. However, no talesman called by the sheriff was either used as a member of the panel or in the trial of the cause on September 7th, after the regular panel of twenty-four jurors was completed as required by statute and the special talesmen had been excused. The jurors must be by order of the court drawn by the clerk from the regular list from the jury box and there must be twenty-four in number accepted by the court to constitute the valid jury panel. Borrelli v. People, 164 Ill. 549, 45 N. E. 1024. This procedure was followed by the court and was neither erroneous nor harmful to the rights of the defendant.

Plaintiff in error further contends that the jury list was not prepared in accordance with the provisions of the jury act; that the last list containing 10 per cent of the legal voters of said county, which list had not been exhausted and from which the names in the jury box had been drawn, was prepared by the county board at its September meeting, 1937. Section 1, ch. 78, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.224], enacted in 1874, provided that “The county board of each county shall, at or before the time of its meeting, in September, in each year, or at any time thereafter, when necessary for the purpose of this Act, make a list of sufficient number, not less than one-tenth of the legal voters of each town or precinct in the county, giving the place of residence of each name on the list, to be known as a jury list. ’ ’ By an act of the legislature, effective July 1, 1939, said section 1 was amended by adding and inserting the words “of each sex” after the words “legal voters” appearing therein.

Section 22 of said chapter [Jones Ill. Stats. Ann. 107.245] further provides that “Until the first annual meeting of the several county boards of this state after the passage of this act, the lists already prepared as the jury lists shall constitute the jury lists provided for under section 1 of this act, and jurors may be selected therefrom in counties where such selection may be necessary, at any time before said annual meeting of the county board, in the manner provided in section 2 of this act.” The next annual meeting of the county board after the above amendment of 1939 provided for placing the names of women in the jury box, was to be held on September 12, 1939, which was the week following defendant’s trial on September 7th.

Furthermore, the objection that no names of women appeared on the jury list or panel which convicted the defendant could not now be availed of, since such objection was not raised in any of defendant’s challenges or motions to quash in the lower court nor at any time until the same was first mentioned in his assignment of errors in this court, which objection we therefore deem to have been waived.

The above oral motions were interposed and passed upon on September 6 and 7, 1939. After the report of the proceedings of the trial had been presented to and approved by the trial judge on December 13th, defendant procured an ex parte affidavit dated and sworn to on December 14th by the clerk of the county court, purporting to narrate what the record of proceedings of the county board showed and did not show concerning the preparation of jury lists at the September meeting, 1937, and subsequent thereto until August, 1939. The objection to the jury list was not raised in the motions challenging the array or to quash the panel, nor were any such records offered in connection therewith or included in the report of proceedings at the trial) and plaintiff, defendant in error herein, properly insists that the same is not now before this court for consideration upon any such assignment of error. Such oral motions were not abstracted and no written motions to quash were filed. Likewise, a reference to the original record by pages thereof indicated on the margin of the abstract shows no motion, either oral or written, concerning or relating to the preparation of the jury lists by the county board or setting forth such specific grounds of challenge or to quash the array or any verification, affidavits or evidence in support thereof.

The law is well settled that it is necessary that such evidence or proof in support of the challenge must be made and preserved in the bill of exceptions, or the action of the trial court in overruling the challenge is not open to review. A party bringing a case to this court must furnish such a complete abstract of the record that it will fully present every error and exception relied on for reversal of the judgment of the trial court. People ex rel. Akin v. Southern Gem Co., 332 Ill. 370,163 N. E. 825.

In the case of People v. Hotchkiss, 347 Ill. 217, 179 N. E. 524, it was urged that the overruling of defendant’s challenge to the array of the petit jury panel and denial of motion for new trial was reversible error. There, the challenge to the array was signed by defendant’s attorney but was not sworn to nor supported by accompanying affidavits, nor was any evidence offered in its support. This failure to support the challenge either by evidence or by affidavits was a fatal omission and justified the trial court in overruling the challenge. People v. Stevens, 335 Ill. 415, 167 N.E. 49; Earll v. People, 73 Ill. 329; Borrelli v. People, supra. Where a challenge to the array of jurors is made, the challenger must support his challenge by affidavits or proof of the illegality of the panel. People v. Stevens, supra, Borrelli v. People, supra.

Among other errors assigned was the fact that one W. H. Birdsell had been served and impanelled, whereas it is alleged that one M. A. Birdzell signed the verdict, but it appears from an examination of the whole of the record that the clerk did not properly type the initials of W. H. Birdsell, who was actually drawn and summoned and duly impanelled and served and so actually signed the verdict. Said Birdsell was questioned and accepted upon examination of the panel, by counsel of both parties as a member of the jury and was not challenged on that ground, nor does it appear that plaintiff in error had exhausted his peremptory challenges or that he had been in any way prejudiced thereby. We deem this assignment of error, therefore, to be without merit.

One of the errors assigned alleged that the court erred in permitting a certain portion of a search warrant identifying the name of Grant Stamey as appearing therein to be read and go to the jury, concerning which a witness had been cross-examined at length by defendant’s counsel and so admitted to rebut the inference that witness’ memory in relation thereto was faulty in that the name did not so appear. In view of the nature, extent and stated purpose of the defendant’s cross-examination concerning such recitals, it was neither improper nor prejudicial to admit this evidence in rebuttal. From the abstracts, no harmful error appears.

A further assignment concerns the giving of plaintiff’s Instruction No. 8 and refusal of defendant’s instructions number two and three. Numerous instructions were given by both parties, many repeating the same principles of law which were not abstracted and do not appear before this court, and it is fundamental that in order to preserve an error of record for consideration of a court of review, the error must appear in the abstract of record. It is not the duty of the Appellate Court to search through the original record in order to pass upon an alleged error. People v. Seywood, 321 Ill. 380, 152 N.E. 215; People v. Wetherington, 348 Ill. 310, 180 N.E. 843; People v. Shader, 326 Ill. 145,157 N. E. 225; Dunlap v. Brotherhood of Railway Trainmen, 214 Ill. App. 376.

From a consideration of all errors assigned and before this court, we hold that no prejudicial error appears and we find no reversible error in the record. A jury has heard the evidence and passed upon the issues of fact and no error is assigned or preserved as to the weight of the evidence. The judgment of conviction of the plaintiff in error by the county court of Champaign county will therefore be affirmed.

Judgment affirmed.