author: Mr. Justice Hebel

text:
    Lillian Olszewski, Appellant, v. R. G. Fitchie et al., Appellees.
    Gen. No. 38,636.
    Opinion filed December 9, 1936.
    Kenneth F. Simpson, of Chicago, for appellant.
    Louis A. Langille, of Chicago, for 'appellees; Willard R. Matheny, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff as the widow and administratrix of the estate of Edward Olszewski, deceased, from a judgment entered in the municipal court of Chicago, in favor of the defendant officers and members of the Milk Wagon Drivers’ Union, in an action to recover $1,000 death benefit provided for in the by-laws of the Union.

From the stipulation of facts agreed to by the parties it appears that Edward Olszewski, deceased, was a member of the Union from 1929, until the day of his death on November 20, 1932; that he ivas not suspended or expelled from the Union during the time of his membership. The by-laws attached to the stipulation were in effect during the year 1932, the material portions of which are as follows:

“Sec. 12. The dues are Six ($6.00) dollars per month, payable quarterly in advance.

“Sec. 13. The quarter begins January 1st, April 1st, July 1st, October 1st, but the dues are payable on and after December 1st, March 1st, June 1st, and September 1st, for the advance quarter.

“Sec. 14. Any member that is more than the current month’s dues in arrears shall not be entitled to sick or death benefit, and he shall not be eligible as a candidate for any office or have a vote.

“Sec. 15. Any member working at the craft who is more than 90 days in arrears in dues shall stand suspended, and must appear before the Executive Board for disposition of the case.

“Sec. 16. Any member who has been suspended for the nonpayment of dues, at a regular meeting, cannot be reinstated unless he pay a new initiation fee, and all the dues charged against him at the time of his suspension.

“Sec. 19. Only members in good standing shall be eligible to hold office. Suspensions or expulsions for any cause, or absence from three succeeding meetings, without sufficient cause, shall forfeit any official position.

“Sec. 42. Sick and Death benefits will be paid after March 1st, 1912.

• “A member taken sick or dying owing dues for the previous month shall be debarred from all benefits.

“If a member is not paid up at time of sickness or death he cannot then pay up and become entitled to benefits.

“A member must be in continuous good standing three months prior to sickness or death before a benefit can be paid.”

Three receipts were also attached to the stipulation of facts which were issued by the Union to the member on the dates they bear, and were given for payments of the quarterly dues as follows:

“Receipt No. 19095, dated March 30, 1932, dues for April, May and June, 1932, paid March 30, 1932.

“Receipt No. 990, dated September 7, 1932, dues for July, August and September, 1932, paid September 7, 1932.

“Receipt No. 45271, dated October 10,1932, dues for October, November and December, 1932, paid October 10, 1932.”

The payments of the dues were made and accepted by the Union on the dates the receipts bear, and from the statement of facts it appears the right or authority of the agent and officers of the Union to accept the payments is not questioned by the Union.

The defendants contend that their refusal to pay the benefit was proper since there was a failure to comply with the by-laws governing the case; that the member defaulted in payment in his lifetime, and although this voluntary association accepted the payments after the time fixed in the by-laws, still there could be no waiver for the reason that the Milk Wagon Drivers’ Union was organized with certain purposes and aims in view, among which were better working conditions of employment and increase in wages of its members; that sick and death benefits were incidental to the main purpose of the Union, and that failure to suspend or expel the member for delayed payments would not affect his standing as a member of the Union.

Membership in this Union is a matter of contract between the parties, controlled by such by-laws as affect the standing of its members.

• The by-laws as we understand them provide that $6 a month shall be paid quarterly in advance, and further that when a member is in arrears for more than the current month’s dues he shall not be entitled to sick or death benefit, and in considering the stipulated facts we find receipt of dues was acknowledged for the quarter ending December, 1932, having been paid on October 10, 1932. It necessarily follows in applying the facts, as we have them before us, to the by-laws, that at the time the last quarter’s dues were paid on October 10, 1932, not more than the current month’s dues were in arrears.

In arriving at a decision this court is guided by the contract and the by-laws that apply to the parties, and we believe from the facts that there was only one month’s current dues in arrears at the time payment was made on October 10,1932. This conclusion is supported by the following provision:

“A member taken sick or dying owing dues for the previous month shall be debarred from all benefits.”

Then again we have the question before us whether or not the defendants waived any claimed default by the acceptance of the payments when they were offered.

Both parties to the controversy seem to rely on the case of Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194. There the court laid down the rule in these words:

“What acts will in all cases amount to a waiver of a forfeiture of membership in a mutual benefit society can not be definitely stated, but conduct on the part of the society, which amounts to a recognition of a member’s claim to the continuing rights of membership, will relieve him from the consequences of his default. The receipt of assessments after default in payment is a common form of waiver. The question of waiver is in most cases a question of fact for the jury. (16 Am. & Eng. Ency. of Law, page 83.) A mutual life insurance company may waive a forfeiture by making a new assessment while a member is in default through failure to pay a previous assessment within the time limited by the by-laws. (Stylow v. Wisconsin Odd Fellows’ Mutual Life Ins. Co., 69 Wis. 224.)”

Notwithstanding the claimed defaults in this case, the member in his lifetime was .charged with the monthly dues as they accrued, and the defendants accepted them with full knowledge that a short time had elapsed before receipt of the current month’s dues, which were paid quarterly. With this knowledge they continued to recognize the membership of Olszewski, and no notice was ever given him that his right to the sick and death benefit was forfeited.

Again, both parties to this litigation have cited the case of Dromgold v. Royal Neighbors, 261 Ill. 60. The court in that case said: “No absolute rule can.be laid down as to what acts will in all cases amount to a waiver of a forfeiture of membership in a mutual benefit society, but this court held in Railway Conductors’ Benefit Ass’n v. Tucker, 157 Ill. 194, that ‘conduct on the part of the society which amounts to a recognition of a member’s claim to the continuing rights of membership will relieve him from the consequences of his default. The receipt of assessments after default in payment is a common form of waiver. ’ ’ ’ And so it would seem from the authorities cited by the parties that the continued recognition of the membership of Olszewski amounted to a waiver.

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

We are of the opinion that the plaintiff as the widow of Edward Olszewski is entitled to recover $1,000, the amount provided for as death benefit, and for the reasons stated herein, the judgment of the municipal court for the defendants is reversed and judgment is entered in this court for the plaintiff in the sum of $1,000.

Judgment for defendants reversed and judgment here for plaintiff.

Denis E. Sullivan, P. J., and Hall, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Theodore Fedorchak, Appellant, v. Paul V. Jeffers and Edward C. Jeffers, Trading as Jeffers Coal Company, Appellee.
    Gen. No. 38,662.

      Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Jacob Levy, of Chicago, for appellant; Edward Mc-Tiernan, of Chicago, of counsel.
    Earl W. Stewart, of Chicago, for appellee; Clyde C. Fisher, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The proceeding pending in this court is an appeal by the plaintiff from a decree entered on June 25, 1935, assessing damages sustained by the defendant Edward C. Jeffers by the granting of a temporary injunction, which was set aside by a decree entered on June 30, 1933.

The motion of the defendant to strike from the record the Report of Proceedings, beginning at page 58 of the record and ending on page 175, was reserved to the hearing. The ground for this motion was that the report of the proceedings was not approved by the chancellor and filed within 60 days from July 13, 1935, the date of the filing of the Notice of Appeal, nor was any order of the court entered within said 60 days. This court has passed upon a like question in the case of Croft v. Pearsons, 283 Ill. App. 636 (Abst.), where we said:

“Where plaintiff stipulated with defendants that the original bill of exceptions, in lieu of a copy thereof might be used by the clerk of the trial court in preparing the transcript of the record for the Appellate Court, plaintiff by this stipulation was estopped to say that the bill of exceptions was not signed, sealed and filed in due time.” Citing in support thereof the cases of Berz v. McCartney, 115 Ill. App. 66, Lederbrand v. Pickrell, 167 Ill. 624, and Northwest Park District v. Hedenberg, 267 Ill. 588.

The rule we have enunciated in that case is controlling, and the motion is denied for the reason that the parties stipulated that the report of the proceedings might be incorporated in the record in lieu of a copy, and used by the clerk of the trial court in preparing the transcript of the record in this court.

The bill for injunction was filed by the plaintiff on May 2, 1930, wherein he stated he was a resident of Chicago and the owner in fee simple of the premises known as Lot 17, etc., and also known as 2348 N. Seeley avenue, Chicago, improved with a three-story flat building, occupied by three families; that the plaintiff and his family lived on the first floor of the building, which was located in a region devoted exclusively to residential purposes and that the premises owned by the defendants were known as Lot 18, and were unimproved and vacant; that the defendants were in the business of dealing in coal and were conducting a coal yard on the premises in the rear of plaintiff’s premises ; that the defendants had made plans and threatened to erect on the lot adjacent to the plaintiff’s lot a coal yard and to store, handle, receive and unload and load coal upon trucks, and to place on said vacant lot mechanical devices for the loading and unloading of coal. The plaintiff prayed for an injunction to restrain the defendants from erecting any building on said premises for the purpose of operating a coal yard.

Thereafter, the defendants filed their appearance and answer to the bill, and on July 3,1930, an order for a temporary injunction was issued by the court to restrain the defendants from using or occupying the premises known as Lot 18, etc., for the purpose of a coal yard and from erecting any building and from installing any machinery or mechanical devices to be used in connection with this business.

The cause was referred to a master in chancery of the court and was heard on its merits before a decree was entered dissolving the injunction. A decree was entered on June 30, 1933, dismissing the bill of complaint and supplemental bill of complaint for want of equity, and on February 23, 1934, a suggestion of damages was filed, and upon consideration of the suggestion, a decree was entered on June 25, 1935, awarding damages to Edward C. Jeffers in the sum of $132.50 for demurrage charges, and the sum of $300 as attorney’s fees for the procuring of the dissolution of the injunction.

The defendants made parties to the bill were Paul V. Jeffers and Edward C. Jeffers, co-partners. On July 1, 1932, the death of Paul V. Jeffers was suggested. After the decree was entered the surviving partner, upon his suggestion of damages, was allowed the amount stated above.

It is suggested by the plaintiff that the surviving defendant, Edward C. Jeffers, is not entitled to any damages by reason of the temporary injunction on the ground that a proceeding to assess damages upon the dissolution of a temporary injunction does not survive, and in support of this contention cites the case of Gindele v. Conlon, 198 Ill. App. 488, wherein the court said: “We are not unmindful that a proceeding to assess damages upon the dissolution of an injunction does not survive either in favor of the representatives of the parties moving for the assessment or against the executors of the parties against whom the assessment is sought. Phelps v. Foster, 18 Ill. 309; Gorton v. Brown, 27 Ill. 489. Such an action does not survive under section 122, eh. 3, Rev. St. (J. & A. par. 172). Neither does any such action survive by the common law. Dempster v. Lansingh, 166 Ill. App. 261.”

Sec. 123, cli. 3 of the Administration of Estates Act, Ill. State Bar Stats. 1935, ft 125, provides as follows:

“In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person, (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.”

It is clear from this provision that an action for the assessment of damages upon the dissolution of an injunction does not survive, and it follows in the instant case that the court erred in entering the decretal order dated June 25, 1935, allowing the surviving defendant Edward C. Jeffers damages sustained by the defendants Paul V. Jeffers and Edward C. Jeffers, co-partners, as a result of the issuance of the temporary injunction.

■ For the reasons stated the decretal order of June 25, 1935, is reversed.

Decretal order of June 25, 1935, reversed.

Denis E. Sullivan, P. J., and Hall, J., concur.


text:
    Charles H. Albers, Appellant, v. Edward B. Sullivan, Appellee.
    Gen. No. 38,674.

      Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Whittt & McG-ah, of Chicago, for appellant; Francis L. Brinkman, of Chicago, of counsel.
    Kern, Stiepel & Stiepel, of Chicago, for appellee; Jacob J. Kern and Charles W. Stiepel, Jr., of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This suit was instituted by the plaintiff William L. O’Connell, as receiver of the Kenwood State Bank of Chicago, against the defendant Edward B. Sullivan upon a promissory note, and judgment was entered by confession for $9,894.83. Thereafter the defendant appeared and filed his motion for leave to plead, which was allowed, and upon trial a verdict for the defendant was returned by the jury and the court entered judgment upon the verdict. Subsequent to the pendency of the appeal to this court the death of the plaintiff was suggested and Charles H. Albers was substituted as plaintiff and receiver of the Kenwood State Bank of Chicago.

The declaration of the plaintiff was based upon the promissory note, which contained a narrative and cognovit, and upon which the judgment by confession was entered.

The pleas filed by the defendant by leave of court, supported by the affidavit of merits, were the general issue; that the note sued on was secured by fraud and circumvention, and also that there was included in the promissory note certain amounts which were added without the consent of the defendant, and that the defendant denied liability except for the sum of $4,805.61, deducting certain amounts which the defendant alleged he was not liable for; and also as a defense defendant alleges that the plaintiff was indebted to him for $17,400 as damages occurring on January 23, 1931, when the Kenwood Bank transferred 600 shares of Swift & Company stock of the defendant held as collateral by a brokerage house, thus converting the stock to its own use, and that upon a recoupment the defendant will recoup to the extent of the amount due the plaintiff.

The facts are that the Kenwood State Bank of Chicago was a state bank organized under the State Banking Act, located and doing business at the southwest corner of 47th street and Woodlawn avenue, Chicago.

The bank was organized by a group headed by William L. Martin and Fred S. Williams, who for many years had been officers of the South Side Trust and Savings Bank, and that the defendant had been a customer of the South Side Bank and was known to Martin and Williams. Upon the organization of this bank the defendant became the owner of 25 shares of stock and was elected an initial director.

The defendant was connected with E. B. Sullivan & Co., a furniture sales corporation as a salesman. After the organization of the bank this company opened its account with the new bank. This state bank operated from December, 1929, until it was closed on June 22, 1932. The defendant had been a director from the date of its organization, and together with other members of the board of directors and officers took part in the affairs of the bank; he obtained his first loan from this bank on December 16, 1929, when he borrowed $1,050 for 91 days. Thereafter he continued to make additional loans and renew notes coming due, and, to secure the payment of these loans, he put up as collateral 150 shares of Swift & Company stock. Later new stock of this corporation was issued — four shares of the new stock for one share of the old. During the time of defendant’s connection with the bank, the organizers, which included the defendant, privately made up a deficit of $6,500, and for this purpose the defendant gave his note for $750 on January 27,1930. On the same day the original $1,050 note was renewed and it was increased from $1,050 to $1,500, but there is a dispute as to whether or not the defendant ever received the difference between the old note and the increased sum. There is also a dispute as to other items.

Later, the defendant borrowed $15,000, which was evidenced by three notes, each for $5,000, for which cashier’s checks were given and collected through the clearing house.

On January 23, 1931, the collateral deposited by the defendant was delivered to Morrison & Townsend, and later sold for $13,000, and the amount received delivered to the bank by the brokers. This sum was applied to defendant’s notes, leaving a balance due of approximately $5,176.50, for which amount the defendant signed a new note on February 26,1931.

The controversy between the parties is largely on the question of the transfer of stock to and sale by a brokerage house on January 23, 1931.

One of the defenses offered by the defendant is that there existed a fiduciary relation between the defendant, one of the directors, and the bank. The ground upon which he offers this defense is that at the time he was requested to act as one of the directors he mentioned that his eyesight was poor, and therefore he did not care to act. The officers of the bank, however, persuaded him to act upon their promise that “the officers of the bank will take care of and handle all of the papers and everything that comes up”; that because of this a fiduciary relationship existed and the defendant, relying upon the good faith of the officers, signed notes for larger sums than the amount received by him from the bank.

The defendant was a director of this institution, and he owed a duty to the stockholders and depositors, occupying as he did a position of trust. It is rather an anomaly for the defendant to urge that the bank through its officers occupied a fiduciary relation in acting for him, not alone as a borrower, but as a director of the bank as well. The fact is that the defendant immediately upon the organization of the bank became a borrower, and the sum total of the borrowed money amounted in the aggregate to $18,000.

Upon the trial, the plaintiff as receiver allowed several items to be deducted from the claim of $7,664.53, amounting to $2,231.30 leaving a balance due of $5,433.23.

During the time the loans were made the defendant did not reduce the principal or pay any accrued interest. The money so received from time to time, with the accrued interest, amounted to the aggregate sum above stated, from which was deducted $13,000 received from the sale of defendant’s 600 shares of Swift & Co. stock, collateral to the notes.

In the discussion of this subject of a fiduciary relation, we will consider the bank as the dominant party and the defendant as the subservient party, assuming that the will of the defendant was subservient to the dominating control and influence of the officers of the bank, and his actions were controlled by the good faith instilled in his mind by the promises of the dominating party. The facts in evidence, however, do not indicate that at the time the defendant signed the notes he was so dominated by the officers of this bank that his will to refuse was influenced to the contrary. His conduct indicates he has had business experience, and his acts at the bank in borrowing money did not display a lack of knowledge of the acts necessary to arrange for a loan. It would rather display a lack of honesty on his part in allowing his name to be used as a director to influence others to become depositors, and then use his position to obtain loans which he now seeks to defeat because of this alleged fiduciary relationship with the bank.

Depositors largely rely upon the character of the men who are directors of a bank and are generally impressed by the fact that they are men of business ability, and that is what attracts them in making deposits. In the case of Chicago Title & Trust Co. v. Munday, 297 Ill. 555, the Supreme Court makes this pertinent statement upon this question, which is applicable to the contention that the defendant seeks to avoid payment of the money borrowed from the bank of which he was a director:

“It is a matter of common knowledge that men of strong financial ability are asked to serve as directors of banks because of the feeling- of security which the public will have from their connection with the corporation. That feeling- of confidence arises out of the fact that the public, when depositing money in a savings bank or when taking stock in the corporation and divesting themselves of control of their property, expect, and have a right to expect, that the men selected as directors of a bank to control the property will exercise ordinary care and prudence, and when one takes a position as director of a bank he becomes trustee for the depositors as well as for the stockholders and is bound to the observance of ordinary care and diligence, and is hence liable for injury resulting from the non-observance, where such non-observance is due to the negligence of such director. Delano v. Case, 121 Ill. 247.”

In applying this to the instant case we find that the defendant in acting as a director of the bank became a trustee, and he is chargeable with lack of care and diligence, and unquestionably is liable for any injury that may result from his failure to exercise the duties required of him as a director of the bank. It does not seem reasonable that this defendant should accept this position and then when it comes to making paymeht of money borrowed by him from depositors try to avoid doing so on the ground that a fiduciary relationship existed between the defendant and the officers of the bank; nor does it seem reasonable for defendant to take this position when he is in a measure responsible to the depositors for the money placed in the bank.

In the same case of Chicago Title & Trust Co. v. Munday, supra, the court laid down this rule:

“The rule with reference to determining the responsibility of a director for losses to his bank was laid down in Wallach v. Billings, 277 Ill. 218, as follows : ‘'Where the directors of a corporation are guilty of a breach or neglect of duty and the proximate result of such breach or neglect of duty is a loss to the bank there may be a recovery from such directors. ’ The responsibility of members of a board of directors of a bank is discussed in Briggs v. Spaulding, 141 U. S. 132, wherein it is said: ‘Without reviewing the various decisions on the subject, we hold that directors must exercise ordinary care and prudence in the administration of the affairs of a bank, and that this includes something more than officiating as figureheads. They are entitled, under the law, to commit the banking business, as defined, to their duly authorized officers, but this does not absolve them from the duty of reasonable supervision, nor ought they be permitted to be shielded from liability because of want of knowledge of wrongdoing, if that ignorance is the result of gross inattention.’ ” And this rule is certainly applicable to the defendant in the instant case. He received the money from the bank and now offers this defense, which we feel is not a proper one under the facts, and as stated before, the court in admitting this evidence, as well as the instructions, erred.

From the facts in evidence, the unfortunate inability of the defendant to read clearly because of poor eyesight, is not a defense. It was his duty to have the contents of the notes read to him before signing them, which he did not do. The law is clear on this subject. In the case of Malewski v. Mackiewich, 282 Ill. App. 593, this court said, quoting from Chicago, St. P., M. & O. Ry. Co. v. Belliwith, 83 Fed. 437:

“ ‘If one can read his contract, his failure to do so is such gross negligence that it will estop him from denying it unless he has been dissuaded from reading it by some trick or artificial practice by the opposite party. If he cannot read it, it is as much his duty to procure some reliable person to read and explain it to him before he signs it as it would be to read it before he signed it if he were able to do so; and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from avoiding it on the ground that he is ignorant of its contents. . . . The fact that, as we have seen, the plaintiff was charged under the law with full knowledge of the contents of this agreement is itself fatal to his claim for there could be no deceit where there was no ignorance and no concealment .... The solemn written agreements of men cannot be whistled down the wind by the testimony of one of the parties to them, to such a story as this . . . the evidence in this case comes far short of that clear, convincing and unequivocal proof which would warrant either a jury or a court in finding either mistake, fraud or deceit in the execution of this contract, and the court below was in error when it refused to instruct the jury to return a verdict for the Company.’ ” Under the facts and the law, the court erred in instructing the jury upon the question of fiduciary relationship.

There are other defenses to this action however which should be considered by a jury upon a retrial wherein the element of undue influence is not involved, especially the question of the alleged value and unauthorized sale of 600 shares of capital stock of Swift & Company by the brokers who were intrusted with defendant’s stock by the bank and who held it as collateral security for the notes.

In commenting upon evidence that may be offered upon a retrial, this court wants it understood that the comment is for the purpose of determining the issues in this court only.

For the reasons stated in this opinion the judgment is reversed and the cause remanded.

Reversed and remanded.

Denis E. Sullivan, P. J., and Hall, J., concur.


text:
    Albert W. Amstein and William I. Lawson, Appellants, v. Paul H. Davis et al., Appellees.
    Gen. No. 38,910.

      Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Russell, Murphy & Pearson, of Chicago, for appellants; John A. Russell, W. W. Pearson and Martin M. Nelson, of Chicago, of counsel.
    Townley, Campbell, Clark & Miller, of Chicago, for appellees; Morris Townley, J. Arthur Miller and G-lenn Gt. Paxton, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

Upon the petition of the plaintiffs an appeal from a judgment entered in the municipal court of Chicago for the defendants notwithstanding* the verdict of the jury for the plaintiffs in the sum of $30,000, was allowed by this court. The defendants subsequently in support of their motion to strike from the record the report of the proceedings (otherwise called the bill of exceptions) filed their reasons therefor, together with an affidavit.

From the affidavit it appears that a verdict for the plaintiffs was rendered in the above entitled cause on December 20, 1934; that thereupon the defendants renewed their motion for a directed verdict made both at the close of the plaintiffs’ evidence and at the close of all the evidence in said cause, upon which motion the court had reserved its ruling; that judgment, notwithstanding the verdict, was entered for the defendants in said cause in the trial court on May 28, 1935 ; that thereupon the plaintiffs moved for a new trial and the hearing on said motion was from time to time continued until on September 18, 1935, an order was entered denying such motion for a new trial.

It also appears from the affidavit that no application was ever made by the plaintiffs in the trial court for an order to extend the time within which a bill of exceptions, or transcript of evidence, or report of the proceedings might be filed, and that no such order was ever entered; that no bill of exceptions, transcript of the evidence, or report of proceedings in the trial court was presented or submitted to the trial judge, or to any other judge of the trial court, for certification within a period of 60 days after May 28,1935, or within a period of 60 days after September 18, 1935, and that the first time such bill of exceptions, transcript of the evidence or report of the proceedings was presented to the trial judge was on February 29, 1936, at which time the same was marked presented by the trial judge, over the objection of the defendants, and to which action of the trial judge an exception was taken, all of which occurred nine months after the entry of the order from which the plaintiffs are now seeking leave to appeal; and that thereafter, over the objection of the defendants, on March 16, 1936, the trial judge certified the said report of the proceedings, nunc pro tunc as of February 29, 1936, and it was thereupon filed. This affidavit is supported by the facts in the record.

The defendants moved the trial court to strike from the record in the above entitled cause what we have denominated the report of trial proceedings, which was presented to the court on the 29th day of February, 1936, and which was certified by the court on the 16th day of March, 1936, for the following reasons :

Judgment was entered for the defendants in the above entitled cause on the 28th day of May, 1935. On the 18th day of September, 1935, plaintiffs’ motion for a new trial, entered after judgment, was overruled. There were no further proceedings in the cause until the plaintiffs presented to the court, on the 29th day of February, 1936, a report of proceedings at the trial, and asked that it be certified by Judge Charles F. McKinley, the judge before whom the cause was tried, and by whom judgment was entered. At the time of the presentation of the above mentioned document, more than 60 days had expired since the entry of the final order in the case; and during the 60-day period after the entry of the final order no extension of time in which to file a report of trial proceedings had been granted by the court, and therefore the court had no jurisdiction to certify the above mentioned document after the expiration of 60 days from the date of the entry of the final order in said cause, as provided in section 38 of the Act of the Legislature of the State of Illinois entitled, “An act in relation to a municipal court in the city of Chicago,” Ill. State Bar Stats. 1935, ch. 37, If 426, and there is no rule of the municipal court of the City of Chicago overruling the requirements of said section 38; and if any rule of said court may be construed to overrule the requirements of said section 38, said rule is in violation of the Constitution of 1870 of the State, of Illinois.

The ground upon which the defendants base their motion to strike the report of the proceedings from the record in the above entitled cause is that such report of the proceedings was not tendered to the trial judge within 60 days after the entry of the judgment from which leave to appeal is sought, but on the contrary, approximately nine months thereafter.

The defendants rely on section 38 of the Municipal Court Act (ch. 37, Ü 426, Illinois Revised Statutes, 1935), which section in its present form was approved by a vote of the. people of the City of Chicago, and is as follows:

“Bill of exceptions or certificate of evidence. A bill of exceptions [or a certificate of evidence] may be tendered to the judge at any time wi.thin sixty (60) days after the entry of [an appealable] order [, judgment or decree] or within such further time thereafter as the court, upon application made therefor within such sixty (60) days [or any extension thereof] may allow. ’ ’

The motion to strike the report of the proceedings, after due consideration, was allowed upon the grounds asserted. Thereafter the plaintiffs filed a brief wherein it is stated the report of the proceedings is essential to show the errors relied upon by the plaintiffs, and although the report has been stricken, the appeal itself is still pending in this court. Appellants contend that they are thus placed in a somewhat anomalous position because any brief filed must necessarily point to the report of proceedings, and on the other hand if no brief is filed there exists the possibility of the appeal being dismissed on the ground of failure to file briefs. Therefore, plaintiffs are filing their brief and argument herein so as not to endanger their record in the event further proceedings are deemed advisable.

In view of the statement made by these plaintiffs and their suggestion that the questions involved are dependent upon the report o.f the proceedings, which is not before this court, it is impossible for us to consider the grounds upon which the plaintiffs seek a reversal of the judgment or the errors upon which they rely. Therefore the judgment of the trial court is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hall, J., concur.


author: ' Mr. Justice Scanlan

text:
    William G. Clark and Mary E. Clark, Appellants, v. Byron Greenlee, Appellee.
    Gen. No. 38,336.

      Opinion filed November 10, 1936.
    Frederick A. Gariepy, of Chicago, for appellants;
    Stevens, Carrier & Griffith, of Chicago, for appellee; George M. Stevens and Melvin L. Griffith, of Chicago, of counsel.
   ' Mr. Justice Scanlan

delivered the opinion of the court.

Petitioners filed a petition for a writ of mandamus to compel respondent to issue to them a permit authorizing the use of their property, in the Village of LaGrange, as a residence for two families. Respondent filed a general demurrer to the petition, which was sustained. Petitioners elected to stand by their petition and upon motion of respondent judgment was entered dismissing the petition. Petitioners then moved the court to certify the case to the Supreme Court for hearing under section 75 (ch. 110) of the Illinois Statutes, on the ground that the validity of a zoning ordinance of the Village, as it applied to petitioners’ property, was involved and public interest required that it be reviewed by the Supreme Court. This motion was denied. The appeal to this court followed.

From the allegations of the petition "it appears that petitioners were the owners of certain property at 46 South Waiola avenue, in the Village of LaGrange, Illinois ; that the property is improved with a large two-story frame building containing six rooms on the first floor and six rooms on the second floor, and that the premises are equipped and adapted for comfortable use by single family units on each floor; that it has been so constructed for four years and from a date after the passage of the zoning ordinance in question; that if the premises were used by two families for residence purposes the value of the property would be $20,000, and petitioners would receive an income of $2,040 a year from the same, but if the premises were used by a single family, as restricted by the ordinance, they would produce an income of $1,050 a year and the premises would have a value of only $12,000; that block 18, in which petitioners’ property (lots 6 and 7) is located, has three different classifications or zoning restrictions; that the block is divided into 21 lots; that lots 1 to 11, both inclusive, are zoned or classified by the ordinance as Class “A” for single family residences ; that lots 15 to 21, both inclusive, are zoned or classified for local business use; that three lots, 12, 13 and 14, are zoned and classified as Class “C” for multiple apartment buildings use; that one of said three lots is now occupied by a 34-apartment building; that the Village zoning ordinance (par. 1666) classifies the Village property into five divisions, known as:

“1. ‘A’ Residence Districts.

“2. ‘B’ Residence Districts.

“3. ‘C’ Residence'Districts.

“4. Local Business Districts.

“5. Light Manufacturing Districts ”; that subsection (1) of said paragraph provides that

“No building shall be erected or altered, nor shall any building or premises be used for any purpose other than is permitted in the District in which such building or premises are located”; that par. 1667 provides that in “A” Residence Districts buildings may be erected or used for the following, purposes:

“1. Single Family Dwellings.

“2. Libraries and Public Museums.

“3. Churches and Temples.

“4. Schools and Colleges.

“5. Parks, Recreation Buildings and Country Clubs, not conducted as a business or for profit.

“6. Farming, Truck Gardening and Nurseries.

“7. Temporary buildings and uses for construction purposes for a period of not to exceed one year.

“8. Accessory uses incident to the above uses, including private garages, professional offices, home occupations, and signs advertising premises for sale or rent, but not including the conduct of any retail or wholesale business or manufacture”; that par. 1665 defines a single family dwelling as follows:

“A detached building having accommodations for and customarily occupied by one family only, and including a private garage with living quarters therein”; that “B” Residence District Regulations permit the erection, alteration or use of a building for:

“1. Two Family Dwellings.

“2. Boarding and Lodging Houses.

“3. Private Clubs not used for Hotel purposes.

“4. Institutions of an educational, philanthropic or eleemosynary nature.

“5. Greenhouses.

“6. Hospitals”;

that par. 1676 of the zoning ordinance provides that the Building Commissioner alone can issue a permit for the desired use of the building in question, that petitioners applied for such permit, duly complied with the regulations of the zoning ordinance, and paid the three dollar fee required for a permit; that the permit was refused. The petition further alleges that about one-third of the area of block 18 is devoted to commercial use or zoned for local business purposes and that the said large 34-apartment building was erected thereon subsequent to the passage of the zoning ordinance and is adjacent to single family residence property; that nine of the 19 buildings in the block are devoted to business uses, one for the said building, and nine for single family residences; that the entire block is contiguous to the main business, street, Burlington avenue, and is adjacent to the Chicago, Burlington & Quincy Railway, over which many suburban, freight, and through passenger trains pass daily; that block 18 contains a large parking place used by the public and by employees of the various stores and business enterprises located in the block; that the business enterprises in the block include a bank, numerous stores, professional offices and merchandising establishments, all of which are operated for profit; that block 17, located directly west and across the street from Stone avenue, which bounds block 18, is classified in three districts, Class “A,” Class “C” and “Local Business,” and that 50 per cent of the area of block 17 is zoned, classified and devoted to other than single family residences, which latter are located close to business houses, schools, a railway depot and other commercial enterprises; that the Village has a population of 10,000 and contains 167 residences which are used for housing or affording living quarters for boarders or roomers or for two families, although a large number of the 167 residences are within the district zoned and classified as “A” Residence District, for single family use; that this use was with the knowledge of respondent, the Building Commissioner, who is authorized and directed under par. 1680 of the zoning ordinance to enforce the provisions in regard to the use of the zoned property; that there was an immediate need for more housing facilities in the Village and that a great pumber of persons were using their property, classified as “A” Residence Districts, “1. Single Family Dwellings,” for housing two families, and that the addresses of 15 such places so zoned and so used were given to the Building Commissioner; that he took no action to enforce the ordinance and to abate the violations although notice of the same had been given to him on numerous occasions prior to the filing of petitioners’ petition; that the general taxes for the year 1930 on petitioners’ property were $335.34; that if the property is restricted to a single family dwelling it is not self-supporting and cannot and will not produce enough income to pay the taxes, repairs, insurance, interest and other carrying charges; that if used as a two-family dwelling it would produce an income sufficient for such carrying charges; that the classification of petitioners’ property as “A” Residence District, “1. Single Family Dwelling,” does not tend to conserve or promote taxable values, but tends to destroy them; that such classification and restriction on the use of petitioners’ property have no reasonable relation to the public health, general welfare or morals, and if sustained as valid will confiscate petitioners’ property from inability of the property, so classified and restricted, to pay the taxes and other necessary expenses of maintenance; that the use of petitioners’ property for occupancy by two families, if allowed by a permit from respondent, would permit petitioners to obtain a substantial return from the property without injury to the health, morals, public welfare or property rights of the Village or of other property owners in the vicinity and in the Village; that par. 1676 of the zoning ordinance reads as follows :

“No land shall be occupied or used and no building hereafter erected or altered shall be occupied or used in whole or in part for any purpose whatsoever until a certificate shall have been issued by the Building Commissioner stating that the building and use comply with all the building and health laws and ordinances and with the provisions of these regulations. No change of use shall be made in any building or part thereof now or hereafter erected or altered, without a permit having been issued by the Building Commissioner, and no permit shall be issued to make such changes unless it is in conformity with the provisions of this ordinance or amendments thereto hereafter duly enacted. Nothing in this section shall prevent the continuance of the present occupancy or use of any existing building, except as may be necessary for the safety of life and property. ...”

The petition also sets up par. 1680 of the ordinance, which is as follows:

“Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of, any of the provisions of this ordinance shall, upon conviction, be fined not less than Ten Dollars ($10), nor more than One Hundred Dollars ($100.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. The Building Commissioner is hereby designated and authorized to enforce this ordinance.” The petition further alleges that the zoning ordinance, as applied to petitioners ’ property, is unconstitutional, void, unreasonable, arbitrary and without any justification in law.

Petitioners contend that the trial court erred in sustaining the general demurrer to the petition and in entering an order dismissing the petition.

From the record it appears that the trial court sustained the general demurrer on the sole ground that the petition alleged that petitioners had filed an application for a use permit under par. 1676 of the zoning-ordinance and that they thereby recognized the validity of the ordinance and waived their right to contend that the ordinance was not valid. When petitioners moved the court for a certificate under section 75 (ch. 110) of the statute, the trial court refused to issue such certificate on the ground that under his ruling, the validity of the ordinance was not involved. That the trial court erred in ruling that petitioners had waived their right to question the validity of the ordinance is clear. See United Artists Corp. v. Thompson, 339 Ill. 595; Western Theological Seminary v. Evanston, 325 Ill. 511, 515; State Bank and Trust Co. v. Wilmette, 358 Ill. 311, 313. In each of those cases the complainant, before filing his bill, had applied for a permit and it had been refused. See also Koos v. Saunders, 349 Ill. 442; Forbes v. Hubbard, 348 Ill. 166; Tews v. Woolhiser, 352 Ill. 212. In each of these cases the petitioner, before bringing a mandamus proceeding, had applied for a permit and it had been refused. Other like cases might be cited if it were necessary.

The second paragraph of the application for a permit made by petitioners reads as follows:

“This application is made for said ‘use’ permit pursuant to Paragraph or Section 1676 of the Zoning Ordinance of the Village of LaGrange, which Zoning Ordinance was dv,ly enacted, adopted and passed on November 7, 1930 and said occupancy permit is made pursuant to the provisions and terms of said paragraph 1676, chapter LIX of the Municipal Code of 1930 of the Village of LaGrange.” (Italics ours.) Respondent contends that petitioners, by using the language, “duly enacted, adopted and passed,” admitted the validity of the ordinance and could not thereafter be heard to say that it was invalid or unconstitutional; that this was the basis for the trial court’s ruling. We have considered the strained argument in support of respondent’s contention and find it without the slightest merit. Moreover,

“A zoning ordinance may be valid in its general aspects, and yet as to a particular state of facts involving a particular owner affected thereby be so clearly arbitrary and unreasonable as to confiscate his property and justify the interposition of a court of equity to restrain the enforcement of the ordinance. Village of Euclid v. Ambler Realty Co., 272 U. S. 365; St. Andrew Society v. Kansas City, 58 Fed. (2d) (U. S. Cir. Ct. of App. 593,) 599; Nectow v. City of Cambridge, 277 U. S. 183; Kennedy v. City of Evanston, 348 Ill. 426; Phipps v. City of Chicago, 339 id. 315; Western Theological Seminary v. City of Evanston, 325 id. 511.” (Ehrlich v. Village of Wilmette, 361 Ill. 213, 222.)

Respondent further contends that “if petitioners were aggrieved by the refusal of the Building Commissioner to issue the permit, their recourse was to the Board of Appeals under the provisions of the zoning ordinance and the enabling act.” The trial court’s action in sustaining the general demurrer was not predicated upon any such theory of law. However, there is no merit in respondent’s contention. Petitioners complain that the zoning ordinance is arbitrary, unreasonable and confiscatory as applied to their property. That such a petition, if a proper showing is made therein, is maintainable in equity, see cases just cited; also Reschke v. Village of Winnetka, 363 Ill. 478, wherein it is held (p. 486):

“In determining whether the invasion of property rights under a purported police power, is unreasonable and confiscatory, the extent to which property values are diminished by the provisions of a zoning-ordinance must be given consideration. (State Bank and Trust Co. v. Village of Wilmette, supra [358 Ill. 311]; Forbes v. Hubbard, supra [348 Ill. 166].) The reasonableness of the ordinance is necessarily determined by the facts in the particular case. Tews v. Woolhiser, supra [352 Ill. 212].” (Italics ours.)

The Board of Zoning Appeals had no power to pass upon the validity of the ordinance as applied to petitioners’ property. As to the limited powers of such Board see Welton v. Hamilton, 344 Ill. 82, 95.

The judgment, of the circuit court of Cook county is reversed; also the order sustaining respondent’s demurrer to the petition, and the cause is remanded for further proceedings not inconsistent with this opinion.

Judgment, also order sustaining respondent’s demurrer to petition, reversed, a/nd cause remanded with directions.

John J. Suhlivan, P. J., and Friend, J., concur.


author: Mr. Justice Edwards

text:
    Glen Coleman, Appellee, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Opinion filed November 19, 1936.
    Rehearing denied December 19, 1936.
    W. H. Hart, M. M. Hart and C. W. Krohl, for appellant ; J. C. James, of counsel.
    Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

In the evening of December 20, 1932, plaintiff, as a guest passenger in an auto driven by Wayne Perry-man, was riding from West Frankfort to Carbondale to witness a basket ball game. The highway, at the southerly limits of West Frankfort, is intersected by a line of railroad which runs to a coal mine of the Old Ben Company. A block east and south of the railway track was a smoldering pile of slag, giving off smoke which it is claimed floated over to the crossing in question and tended to obscure the visibility at that point. The highway from the north, to the railroad, is somewhat downhill, though not a sharp grade.

At the time in controversy a train of defendant, consisting of an engine to the front of which were coupled 10 loaded coal cars, had backed westerly from the mine, and the engine pulled to the west about eight car lengths, when it stopped, with one car upon the highway crossing and one easterly of such point. The headlight of the engine shone over the tops of the loaded coal cars, which were about 8% feet high above the rail, while the headlight was two or three feet higher..

The purpose of stopping on the crossing was to enable the rear switchman to alight from the third or fourth car from the engine, walk to the rear and throw a switch in order that the train might back onto another track. While the switchman was thus engaged, and the car had stood across the highway crossing for perhaps two minutes, the auto in which plaintiff was riding crashed into the side of the car upon the crossing, and as a consequence a young lady passenger in the auto was killed, while the other occupants, including plaintiff, were injured.

Both the driver and plaintiff were familiar with the intersection of the railroad and highway, and had passed over the point many times. The driver testified that the last 300 feet before he reached the crossing he was traveling 20 or 25 miles per hour, and that when he first saw the train he was 30 or 40 feet therefrom ; that he then applied his brakes and turned to the left, but was unable to avoid collision with a red coal car. The view of the crossing was unobstructed for at least 150 feet northerly of it.

Plaintiff brought suit under the old Practice Act, in 3933. The declaration as amended consisted of four counts; each charged that defendant blocked the crossing with its train; that it was then and there under a duty to give notice to travelers on the highway by signs and signals that the train was obstructing the crossing; that defendant failed so to do, and that such neglect was the proximate cause of plaintiff’s injuries.

Defendant pleaded the general issue; the cause was tried before a jury; there was a verdict in plaintiff’s favor for $2,500, judgment was rendered therefor, and from it this appeal has been perfected.

Plaintiff’s position and theory is tersely stated at the bottom of page three of his brief and argument, as follows: ‘ ‘ The plaintiff claims there were insufficient signs and signals, and by the defendant’s failure to give proper notice of the existence of the fact the crossing was blocked, caused the injury to the plaintiff. ’ ’

To entitle the plaintiff to a recovery it was of course necessary that he adduce evidence which tended to prove that defendant was negligent, and that such negligence was the proximate cause of his injury. Gibson v. Leonard, 143 Ill. 182; 45 Corpus Juris, 901.

No question has been raised that defendant was not rightfully occupying the crossing at the time of the accident, but the contention is made that it rested under the obligation to give notice to travelers qij the highway, by appropriate signals or warnings, that its train was then obstructing the crossing. No statute or municipal regulation requiring such has been claimed or cited, and if such duty was imposed upon defendant it must have been by the common law.

Whether a railway company, lawfully occupying for a reasonable time a crossing of its tracks with a public highway, must, in the exercise of due care, give notice or warning to the traveling public of the presence of its train upon the crossing, has many times been before the courts for adjudication.

In Crosby v. Great Northern Ry. Co., 187 Minn. 263, 245 N. W. 31, the rule was stated to be: “Common experience is that the occupation of a highway crossing by a train is visible to travelers on the highway, including automobile drivers whose cars are properly equipped with lights and who exercise ordinary care. It would seem that a train upon a crossing is itself effective and adequate notice and warning. It has always been so considered. This is so whether the train is moving or standing. A railroad company is under no obligation to light an ordinary highway crossing at night so that its trains thereon may be seen by travelers. ’ ’

Morris v. Atlantic City R. Co., 100 N. J. L. 328, 126 Atl. 295, was a case where a train stood over a crossing on a dark and foggy night, without giving warning, and plaintiff’s truck collided with the train. The court, in denying liability, held that there was no duty on the part of the defendant to give warning to autoists by lights or other signals.

The rule was stated, in Philadelphia & R. Ry. Co. v. Dillon, 1 W. W. H. (Del.) 247, 114 Atl. 62, that a railroad company, rightfully blocking a highway crossing with a standing train, has a right to assume that one driving an auto along the highway will adopt such lights and rate of speed that he can bring his car to a standstill within the distance he can plainly see the train, and that the railroad company is not negligent in failing to give warning of the presence of the train.

“A railroad company is not liable for injuries to an automobile, driver of which, in coming down a steep hill at night, by reason of slippery condition of oiled road, was unable to stop on discovering a train standing on crossing, whereby the automobile hit the train just as it was starting, though railroad took no precautions to avoid such injury.” Gilman v. Central Vermont Ry. Co., 93 Vt 340,107 Atl. 122.

Where a driver knows of a track and highway crossing, and he drives his car on a dark night into a freight train standing upon the crossing, and no warning was given by the railroad company of the presence of the train on the crossing, the court ruled that with proper headlights and driving with such care as the law requires of him, he should have seen and known of the obstruction in time to have avoided the collision, and that the railroad company owed him no duty to give special warning of the obstruction of the crossing. Worden v. Chicago & N. W. Ry. Co., 180 Wis. 551, 193 N. W. 356.

In the very recent case of Dolan v. Bremner, 220 Iowa 1143, 263 N. W. 798, on consideration of this proposition, the court said: “Railroad tracks necessarily cross public highways, and it is necessary that trains at times be stopped upon such public highway crossings. When this is done and the railroad company is making reasonable and legitimate use of such crossing, the presence of the train itself is sufficient warning to any one using the highway, and there is no duty upon the part of the railroad company to anticipate that one using the highway will not see such train and be apprised of its presence as fully as he would be if other signs or warning were used. ’ ’

"Wlien railroad cars are rightfully upon a crossing, the fact that they are there is adequate notice to the traveler over the highway that he cannot occupy the crossing at the same time. No other signals, warnings or notices are necessary or required, in the absence of a statute or ordinance specifically requiring such. Where no statute or municipal regulation obligates the railroad company to provide lights at the crossing under such circumstances, negligence against the railroad company is not proven by the single circumstance that there were no such lig’hts at the time of the accident. Gage v. Boston & M. R. Co., 77 N. H. 289, 90 Atl. 855.

In Trask v. Boston & M. R. R. Co., 219 Mass. 410, 106 N. E. 1022, plaintiff, on a dark night, drove an auto into the side of a train standing on a spur track at an obscure crossing in a village. No signals or warnings were upon or about the train before or when the accident occurred; and the court held that there was no duty of-the defendant to provide lights or flagman at the time.

The case of Pennsylvania R. Co. v. Huss, 96 Ind. App. 71, 180 N. E. 919, was a situation where plaintiff, a guest passenger, was injured by.the collision of the auto in which she was riding, with a freight train of defendant standing upon a highway crossing. The night was dark and damp; at the scene there was a mist or fog, with the visibility poor; negligence was claimed because of defendant’s failure to place any signal at the crossing and in failing to station some employee there to warn persons using the highway of its obstruction by the train. The court, after an exhaustive consideration of authorities, ruled that common knowledge and experience are sufficient to warn the traveling public that a railway crossing cannot be used when it is already occupied, and the law does not require that information be given of an existing fact; that ordinary observation will reveal that an object the size and shape of a freight car upon a crossing* is, in and of itself, sufficient notice of its presence to warn any person using the highway with ordinary care, that the crossing is obstructed, and that no further warnings or signals are necessary.

The law governing in such situations, is epitomized in 52 Corpus Juris, 190, sec. 1782, where, after a résumé of authorities, the rule is stated to be: “The

view generally taken is that the presence of a train or cars at a crossing* is sufficient notice of obstruction and of danger; that the railroad company is not bound to give any further warning as to the presence of such obstruction, and that the trainmen have a right to assume that the operator of the vehicle will act in a reasonable way to avoid a collision.”

It is thus apparent that the decided weight of authority establishes the proposition that where a railroad train rightfully and for a reasonable period of time occupies a crossing of its tracks with a public highway, the very presence of the train is adequate notice and warning to any traveler, who is in the exercise of ordinary care for his own safety, that the crossing is occupied; that no additional signs, signals or warnings are required to be given by the railroad company, and that no negligence can be imputed to it for its failure so to do.

It is further said, in Dolan v. Bremner, supra: “The purpose of warnings or signals at railway crossings is to protect the public from approaching trains, and not to warn of the presence of trains actually upon the crossing; and when an automobile is driven into the side of a railroad car occupying* a highway crossing, the absence of warning, either statutory or otherwise, cannot be the proximate cause of the collision and damages resulting therefrom.” And to the same effect are Cleveland, G., C. & St. L. Ry. Co. v. Gillespie, 96 Ind. App. 273, 173 N. E. 708; Schmidt v. Chicago & N. W. Ry. Co., 191 Wis. 184, 210 N. W. 370; Fuller v. Peoria & P. Union Ry., 164 Ill. App. 385.

From the authorities cited, and upon this record, it is manifest that the defendant did not owe to the plaintiff the duty, charged in the declaration, of giving notice of the fact that its train was blocking the crossing at the time in question, and hence the failure to give such notice was not the proximate cause of the collision and consequent injury to the plaintiff.

When there is no proof which tends to establish the fact that defendant was guilty of some act or omission which was the proximate cause of plaintiff’s injury, the .latter fails to make a case. Hartnett v. Boston Store, 265 Ill. 331; Chicago A. R. Co. v. Becker, 76 Ill. 25.

The plaintiff failed to establish one of the essential elements of his case, namely, that some act or omission of the defendant was the proximate cause of his injuries; for which reason the judgment is reversed, and judgment is entered here for defendant, and against plaintiff for costs of suit.

Judgment reversed.


author: Mr. Justice- Edwards

text:
    Maria Grazia Cusanelli, Administratrix of the Estate of Tony Cusanelli, Deceased, Appellee, v. J. C. Steele and I. J. Rosch, Appellants.

      Opinion filed November 9, 1936.

      ‘ Roscos Forth, of Granite City, Arthur R. Felsen and J. R. McMurdo, both of East St. Louis, for appellants ; L. Harold Degnan, of East St. Louis, of counsel.
    Harry Faulkner, of Granite City, and C. C. Ellison, of Alton, for appellee.
   Mr. Justice- Edwards

delivered the opinion of the court.

Plaintiff, as administratrix of the estate of Tony Cusanelli, deceased, brought suit against defendants to recover on a note for $1,300, made by the said J. C. Steele and I. J. Rosch to order of deceased; the action being later dismissed as to the said Rosch. The complaint was in the usual form, with a copy of the note attached. Defendant Steele pleaded the general issue, and three special pleas: first, that the note was for the accommodation of plaintiff’s intestate; second, that it was delivered conditionally, and third, that there had been an agreement between defendant and the deceased that the former was not to be personally liable upon the note. The said agreement was not alleged to be in writing. To each of these special pleas plaintiff filed replications, which were denials of the matters set forth therein, and tendering as to each an issue of fact.

It will thus be seen that the third special plea did not set up any legal defense. The copy of the note attached to the complaint was an absolute promise to pay money according to its terms, and it is not competent as a defense thereto, to show by oral testimony that the parties did not intend that it should be effective as a promissory note. To permit such to be done is to vary the terms of a written instrument by parol, which cannot be done. Foy v. Blackstone, 31 Ill. 538; Weaver v. Fries, 85 Ill. 356; Paluszewski v. Tomczak, 273 Ill. App. 245; Weinstein v. Sprintz, 234 Ill. App. 492. Nor does it become a valid defense by reason of the fact that plaintiff, instead of moving to strike the plea, as she properly should have done, replied thereto and tendered an issue of fact thereon. McClure v. Williams, 65 Ill. 390. The issue thus joined was immaterial, and, together with any evidence tending to support such, will be disregarded. Hitchcock v. Haight, 7 Ill. 604; Rodriguez v. Merriman, 133 Ill. App. 372.

A few days before the date set for trial, defendant moved for a continuance in order to secure the attendance of witnesses stated to be in Missouri, and also certain documents said to be in Kentucky. The court overruled the motion, and the ruling is assigned as error.

The affidavit supporting the motion averred: “Affiant further states that if further time is given, said witnesses, note and mortgage can be secured and produced at the trial. ’ ’ It thus appears that the affidavit merely avers his ability to produce the evidence, which is but his conclusion. Where the witnesses or the documentary evidence are beyond the boundaries of the State, the affidavit should set forth the affiant’s reasons for his belief that he will procure the attendance of such witnesses, so that the court may determine whether they are reasonable, and if so, the continuance should be granted; but if the grounds assigned do not disclose any reasonable probability of his ability to produce the evidence, then the motion should be denied. Eubanks v. People, 41 Ill. 486; Wilhelm v. People, 72 Ill. 468. We think the court did not err in overruling the application for a continuance.

Upon the trial, at the close of the evidence, the court directed a verdict for plaintiff in the sum of $1,950.68, upon which judgment was entered, and from which defendant appeals.

Margaret Cusanelli, a daughter of the deceased, testified that defendant delivered to her the note in question, to be turned over to her father, who had sent her to defendant with a note and mortgage to be handed to the latter in exchange for the one sued upon. On cross-examination she stated that the note which she then handed to defendant was signed by himself, and also by Albert B. Senciper and his wife Hazel H. Senciper. This was all the proof offered by plaintiff, except the note in question.

Defendant took the stand in his own behalf to testify to the transactions and conversation related by the daughter. He claims that he sought to deny that his signature was on the note which the daughter had handed to him, but that the court erroneously refused to permit him to so testify.

We find, by reference to pages 33 and 34 of the abstract, that the defendant testified as follows: “I was in court this morning and heard Margaret Cusanelli testify that at the time she was in my office, at which time plaintiff’s Exhibit 1 was delivered, she delivered another note to me which was signed Albert B. Senciper and Hazel H. Senciper and myself. The note was signed Albert B. Senciper and Hazel H. Senciper only. I remember the note that she testified about, and it was not signed by me. My signature did not appear anywhere upon it. ’ ’

No objection appears to have been made to any of this testimony, nor was there any motion to strike it or any part thereof. Obviously, defendant fully denied that his signature was on such note, and he is in error in contending that the court denied him the right to so testify.

It is further urged that the trial court sustained an objection by plaintiff to the offer by defendant of the latter’s Exhibits 1, 2, 3 and 4, the same being copies of letters.

When such exhibits were offered, plaintiff objected, and the court stated he would reserve ruling* thereon until after the lunch hour. The original record, at page 63, reveals the following: “Court resumed at 1 P. M. Whereupon Mr. Ellison, for plaintiff, again objected to snch exhibits as incompetent and inadmissible under Section 2 of the Evidence Act. Mr. Forth, counsel for defendant, replied that such Section did not apply to the offered exhibits.”

The record does not show that the court made any ruling thereon, hence there is nothing for the consideration of this court relative to the offer of such evidence. Where a ruling on objections to evidence is reserved, and not afterwards made, there is no ruling for consideration on review. Mitchell v. Chicago, B. & Q. Ry. Co., 265 Ill. 300.

To avail of an objection, counsel must insist upon a ruling of the trial court upon the objection, and must either obtain a ruling or a refusal of the court to rule. Mere failure to rule is not sufficient. City of Salem v. Webster, 192 Ill. 369; Summerville v. Penn Drilling Co., 119 Ill. App. 152; Chicago & E. I. R. Co. v. Heilingstein, 137 Ill. App. 35. The law upon this question is stated in 3 Corpus Juris, p. 889, sec. 795: “As a general rule, error alleged in the admission or rejection of evidence, cannot be considered by the reviewing court if it does not appear from the record that there was a ruling relating thereto. ’ ’

Here the record fails to disclose a ruling upon the objection to the offer of the exhibits, and further does not show that defendant insisted upon such ruling, or that the court refused to make same; hence, within the rule of the authorities cited, there is nothing for the consideration of the court upon the proposition.

Defendant further contends that he was denied the right to testify regarding the matters to which Margaret Cusanelli deposed in her testimony. The abstract shows, on page 32, in response to a question to state the conversation between himself and said witness, the defendant testified that when he delivered the note sued upon to the witness, he told her he had an agreement "with her father that he was not to be liable thereon; that it was given him to show to his family, who had been finding fault with him because he could not collect the note secured by the second mortgage, and that there was to be no obligation to him; that an effort would be made to sell the property, and whatever it brought over and above the first mortgage would be turned over to the deceased.

Objection was made by plaintiff to the answer, and after some colloquy between counsel, the attorney for plaintiff asked that the jury be instructed to disregard it; to which the court replied: ‘1 Sustained, as to that part pertaining to some transactions not testified to by Miss Cusanelli, the witness for the plaintiff.”

Whether the court was ruling upon the objection to the answer, or the motion to direct the jury to disregard same, we are unable to determine; however, in our opinion it makes no difference. The question was ■proper; the answer was responsive and related solely to the matters testified to by Margaret Cusanelli, and to nothing else; hence was proper, and not subject to objection nor motion to strike. Whichever point the court was ruling upon, it will be observed that he was only sustaining the objection or the motion, as the case may be, to so much of the answer as related to transactions not testified to by the witness for the plaintiff, and was not ruling adversely to any part which pertained to the matters testified by her. The entire answer was directly in relation to such, hence the court’s ruling did not eliminate any of the answer, and the defendant’s version of the transactions between himself and Margaret Cusanelli, in its entirety, remained in the record. Counsel, evidently misapprehending the effect of the court’s ruling, thereupon offered to prove by the witness the same matters contained in such answer, and the court properly sustained objection to the offer, as the proffered testimony was already in the record.

Defendant insists that the court erred in directing a verdict, for the reason that there was testimony reasonably tending to sustain the special pleas. If so, the point is well taken. Harrison v. Bingheim, 350 Ill. 269.

As previously seen, the defense set forth in the third special plea was not one recognized by the law, and for the reasons stated is not to be considered.

Special plea number one was that the note sued upon was without consideration and given solely for accommodation. The witness for plaintiff testified that she delivered to defendant a note secured by a real estate mortgage, given to her father by the Sencipers, and received in exchange the note in controversy. This is not denied by defendant, hence stands as a proven fact in the case. The surrender of the note and real estate mortgage referred to was a sufficient consideration to support the promise contained in the note sued upon. Hart v. Strong, 183 Ill. 349. There was no testimony which tended to sustain the allegations of the first spe • cial plea.

Defendant’s principal contention appears to be based upon the second special plea, that the note was conditionally delivered. This is a valid defense by Ill. State Bar Stats. 1935, ch. 98, Ü 36; Jones Ill. Stats. Ann. 89.036 (par. 36 of ch. 98, Smith-Hurd’s R. S.) and the question is, does the testimony reasonably tend to support it?

Whoever asserts that the delivery of a promissory note was conditional, has the burden of proving same, and the evidence to establish such fact should be clear, convincing and specific. Dairyman’s State Bank v. Dunham, 271 Ill. App. 249. Defendant’s Exhibits 1, 2, 3 and 4 not being before us for consideration, for the reasons previously given, the only evidence bearing upon the question is the oral testimony of defendant, which is to the effect that he was not to be liable upon the note; that same was given so that deceased might exhibit it to members of his family who had been complaining because he could not collect upon the note for which it was given in exchange, and that if the real estate sold for more than the amount of the first mortgage, the overplus should be paid to the decedent.

This testimony does not show that the note was delivered with the intent that its ownership should not pass until the happening of some event or contingency; but on the contrary proves that it was delivered in praesenti, for the purposes stated by defendant, and that decedent became its owner by the manual delivery to him. The conditional part of the transaction was that its payment should be made when there was a sale of the real estate, if there was a surplus after satisfaction of the first mortgage, and then only to the extent of such overplus.

This testimony shows that no condition precedent to the complete delivery of the note was imposed, but on the contrary, one was impressed which related to the payment of the obligation, and as this disputed and varied the terms of the instrument, in order to have legal force or effect, must have been in writing and could not rest in parol. Handley v. Drum, 237 Ill. App. 587; Schultz v. Meyer, 181 Ill. App. 335; Weinstein v. Sprints, 234 Ill. App. 492. There was no competent testimony which tended to prove that the delivery of the note was conditional.

An offer was made to prove by Mr. and Mrs. Senciper that the note which Margaret Cusanelli testified to delivering to defendant, did not contain the latter’s name in any capacity; which offer was rejected. The testimony of Mrs. Senciper was that the note was with certain other of her belongings in Kentucky. The basis of the trial court’s ruling was that the note was the best evidence of its contents, including the names which appeared upon it in whatever capacity, and that defendant had not made due effort to produce same at the trial.

In McDonald v. Erbes, 231 Ill. 295, the rule is stated to be that secondary evidence may be received to prove the substance of a document which is out of the jurisdiction of the court, only when due effort has been made to obtain the instrument. We agree with the trial court that there was no sufficient showing of diligence or effort to secure the note, hence the ruling was justified.

For which reasons we are of opinion that the judgment is right, and it will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Huffman

text:
    The People of the State of Illinois ex rel. Oscar Nelson et al., Appellees, v. Ottawa Banking and Trust Company of Ottawa, Appellant. In re Conservatorship of Benjamin Wicks, Insane.
    Gen. No. 9,080.

      Opinion filed November 30, 1936.
    George V. B. Weeks, of Ottawa, for appellant.
    Owen Anderson, of Ottawa, and Arthur H. Shat, of Streator, for appellee Richard Gaard, administrator of the estate of Benjamin Wicks, deceased.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

The Ottawa Banking and Trust Company suspended business on September 28, 1931. At that time it was acting as conservator of the estate of Benjamin Wicks, an insane person, by appointment of the probate court of LaSalle county. Following the suspension of business by the bank, the auditor of public accounts appointed Joseph H. Standart receiver. Subsequently, the auditor instituted proceedings in the circuit court of LaSalle county to bring about the liquidation of said bank. About a year after decree in the above proceedings, the receiver, by virtue of sec. 11 (ch. 16a, par. 11, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 10.11; ch. 16%, Smith-Hurd 1935), of the Banking Act, filed a resignation of the bank as such conservator. In the meantime, the insane person had died, and Richard Gaard was appointed and qualified as administrator of his estate, in the probate court of said county. Following these events, the receiver filed a final account and report of the bank as such conservator, in the receivership proceedings pending in the circuit court. An order was entered by that court approving the report as filed. Richard Gaard, as administrator of the estate of the deceased, filed his motion asking that the order be vacated and set aside. This was done, whereupon the administrator filed objections to certain investments of the ward’s funds by the bank, while acting as conservator. The court held certain of these investments were proper and that others were wrongful and unlawful.

It appears that the ruling of the court with respect to the objections made to the investments by the conservator bank was acceptable to all parties concerned. The attorneys for the receiver drafted a decree in accordance with the pronouncement of the circuit court, which was submitted for approval to the attorney for the administrator, and approved by him, prior to presentation to the court for its signature. The decree ordered the receiver to turn over to the administrator the securities represented by the approved investments, in kind, and that in lieu of the unlawful investments, that the receiver should pay to such administrator a cash amount represented by such investments. This decree was entered under date of October 11, 1935. The receiver did not pay the amount of money provided by the decree. Pursuant to petition filed by the administrator, the court entered its order, November 25,1935, on the receiver to show cause on or before December 7, 1935, why he should not be held in contempt for failure to make such payment. The receiver filed his answer thereto on December 5, 1935, in and. by which answer he set up that he had on that day filed a notice of appeal in the office of the clerk of the circuit court. This appeal followed.

It was stated by counsel on behalf of appellant receiver that this appeal was prosecuted for the purpose of settling but one question, which grows out of the following facts and circumstances: The bank being incorporated for the purpose of accepting and executing trusts, by virtue of the statute relative thereto, (ch. 32, par. 345 et seq., Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 135.20; sec. 287 et seq., Smith-Hurd 1935) had placed on deposit in the office of the auditor of public accounts, a fund whch under the statute was deposited for the benefit of the creditors of such trusts as had been accepted by said bank and trust company; and that the auditor of public accounts did not wish to pay over the funds so deposited with him, upon any court order or decree, until it was definitely determined whether the court entering such order and decree had jurisdiction to enter the same. It is the position of appellant here, that the circuit court had no jurisdiction to enter the decree upon the final account and report of the receiver filed on behalf of the bank as conservator. It is urged that such report should have been filed in the probate court; that that court had exclusive jurisdiction of the matter; that the circuit court was wholly without jurisdiction and its order and decree therefore void.

The appellant states that this question of the jurisdiction of the circuit court to hear and determine the final reports and accounts of receivers as in this case has not been determined by any court of review in this State, and that the auditor desires the question presented and settled so that his surrender and payment of the funds held by his office by virtue of the provisions of ch. 32 of the statute, to receivers of various banks and trust companies under liquidation, could not be later questioned by some other court proceeding.

The question therefore to be determined is whether in proceedings instituted by the auditor of public accounts in the circuit courts to liquidate and wind up the affairs of a defunct bank and trust company, a receiver of such bank after filing a resignation of a trust under sec. 11 of the Banking Act, can then file his final account and report of such bank as conservator, in the receivership proceedings pending in the circuit court; or whether the circuit court is without jurisdiction, and the exclusive jurisdiction rests in the county or probate court.

The liquidation of closed banks is a matter of general public interest. We therefore find various statutes providing when a State officer or the department having supervision of banks and banking may take control of a bank’s affairs and bring about a suspension of business, a dissolution of the corporation, together with a liquidation and distribution of its assets. It may be stated as a general proposition that the liquidating officer, by contemplation of statute, takes charge of the affairs of the bank for the purpose of settling the accounts, liquidating the assets, and making distribution thereof among the creditors according to their legal rights.

Circuit courts are courts of original jurisdiction, and are vested with jurisdiction of the liquidation of closed banks within the meaning* of sec. 11 of the Banking Act. It has been said: “A court exercising equity jurisdiction, in appointing* a receiver of the property of a corporation, holds and administers the estate, through the receiver as its officer, for the benefit of those whom the court shall ultimately adjudge to be entitled to it.” Chicago Title & Trust Co. v. Goldman, 272 Ill. App. 457, 463. The court which has taken the assets of an insolvent corporation into its custody for distribution, is properly clothed with jurisdiction to determine who are creditors and the amounts justly due them. Furthermore, a receiver who has been appointed by a court of competent jurisdiction, and has taken possession of the property of an insolvent bank, in the capacity as receiver, has the right to hold and dispose of such property under the order and direction of the court through which he receives such power. Any other rule would give rise to utter confusion.

The case of People v. West Side Trust & Savings Bank, 362 Ill. 607, presents many similar situations to the case now under consideration. We are of the opinion that the above case determines the right of a circuit court to entertain and dispose of a receiver’s final account and report filed on behalf of a defunct bank and trust company, as conservator, under the provisions of sec. 11 of the Banking Act. In the above case, it was held that the mandatory requirement of sec. 11, that the receiver shall resign trusteeships within a reasonable time, gives the court in charge of the liquidation jurisdiction to coerce such resignations and thus compel compliance with the statutory duty therein defined, (pp. 616, 617.) It must necessarily follow that if such court possesses the power to compel such resignations, it also possesses the power to grant appropriate relief incidental thereto, which would be a determination of such receiver’s report of account filed on behalf of the bank. It is recognized in the above case (p. 617), that the auditor may appoint a receiver of a closed bank without asking for its dissolution, but it is stated that if the auditor files a suit to bring about a liquidation of the bank and for a settlement of its affairs, together with a dissolution of the same as a corporation, then the court in which such suit is filed, is the tribunal within the contemplation of sec. 11, to take charge of the liquidation of the bank. In this respect, it is aptly stated at p. 618: “We find no language in sec. 11, which can be distorted to mean that the orderly dispatch of the business of courts should be upset” by requiring the services of other courts for purposes that can be performed by the one.”

Proceedings of this nature, at best, involve hundreds, and in many instances, thousands, of separate and distinct transactions and accounts. No public good would be served by causing the receiver, who under the order of the circuit court has been constituted the officer to bring about a liquidation and distribution of the bank’s assets, to resort to other courts for a determination of claims against such bank, when the full and final liquidation thereof, the distribution of assets, and dissolution of the corporation, is with the court wherein such proceedings were instituted and are pending.

It is also held in the above case (p. 620), that the resignation as provided by sec. 11 of the act, is a statutory duty inseparably connected with and pertaining to the liquidation and settlement of the affairs of the bank, and that such resignation could be compelled by the court in which the liquidation proceedings were pending. We are therefore of the opinion in this case that, since the circuit court was the court in which the liquidation and dissolution proceedings were pending, and clothed with the power to compel the resignation of the receiver from trusteeships on behalf of the bank, it necessarily follows such court likewise had the power to effectuate its order by directing the receiver to turn.over the property in his possession to those to whom it rightfully belonged or to those who were entitled to its custody, and that he also be held to account for wrongful and unlawful acts of the bank in the investment of funds. In support of this position is the further statement of the court, at p. 620: “Our conclusion is fortified by the language of sec. 11, which not only requires the receiver to resign, but also declares that when his resignation is forthcoming, a proper accounting shall be made with respect to each trust.” With reference to this statement regarding the right of the circuit court under sec. 11 to compel the resignation and a proper accounting with respect to each trust, it will be observed that the statute makes no distinction as between any particular kinds of trusts, but designates, “all trusteeships, guardian-ships, conservatorships, and all appointments as executor and administrator. . . . ”

It is suggested by appellant that that portion of the order and decree of the circuit court which finds that the sum of $2,605 is due to the estate of the deceased because of wrongful and unlawful investments of the conservator, orders the same paid in cash without taking into consideration what other claims may have been already allowed against the fund on deposit with the auditor for the benefit of such creditors. It is therefore suggested by appellant that the court’s order in this respect should be modified to read that such sum of money be paid in due course of administration. It is suggested by appellee that this is the only manner in which the receiver would pay out the money. However, we are of the opinion that in order to avoid any uncertainty or further dispute about the matter, that the decree of the trial court in that respect should be modified, and that portion of the decree which orders the payment of $2,605, by the receiver of said bank to Eichard G-aard, as administrator of the estate of Benjamin Wicks, deceased, should be, and the same is modified to read: that said sum shall be so paid by said receiver in the due course of administration and liquidation of said bank.

In all other respects the order and decree of the trial court is affirmed. The costs on this appeal will be taxed against appellant.

Order and decree modified and affirmed as modified; costs against appellant.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    A. M. Anderson, Appellant, v. Biesman and Carrick Company, Appellee.
    Gen. No. 38,802.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.

      Gilbert F. Wagner, of Chicago, for appellant.
    Cooke, Sullivan & Ricks, of Chicago, for appellee; Edwin Hedrick and Malcolm J. Gillis, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment for costs entered ag'ainst the plaintiff in an action in assumpsit in the municipal court of Chicago. In the trial court plaintiff sued for services claimed to have been performed for the defendant. The main controversy between the plaintiff and defendant is that defendant insists the statement of claim recites an action based on an express contract. The plaintiff contends that his claim is for an express contract, or at least one for services performed and the reasonable value thereof.

Plaintiff’s amended statement of claim reads as follows:

“Plaintiff’s claim is for work and labor performed as a machine operator, mechanic, laborer, servant and employe for and on behalf of and at the special instance and request of the Biesman & Carriek Company, defendant, commencing* on July 29, 1933, and continuing for a period of ninety-nine and three-sevenths weeks at the rate of fifty dollars ($50.00) per week, representing the agreed upon and reasonable value of said work and labor, or a total of the sum of Four Thousand Nine Hundred Seventy-one and 42/100 ($4,971.42), upon which indebtedness there has been paid the sum of One Thousand One Hundred Ninety and 63/100 Dollars ($1,190.63) leaving* a balance due and owing* in the sum of Three Thousand Seven Hundred Eighty and 79/100 Dollars ($3,780.79) after allowing to the defendant all just deductions, credits and set-offs,

“Wherefore, plaintiff prays judgment against the Biesman & Garrick Company, defendant, in the sum of Three Thousand Seven Hundred Eighty and 79/100 Dollars ($3,780.79) for wages earned and due, together with legal interest thereon.”

To plaintiff’s amended statement of claim defendant filed its statement of defense, which reads as follows: “Statement of defense denies that plaintiff performed work or labor on behalf of or at the special instance and request of defendant for the period commencing July 29, 1933, and continuing for a period of ninety-nine and three sevenths weeks, and denies that the defendant agreed to pay plaintiff for any such services at the rate of $50 per week or in any other amount, and denies that the reasonable value of said alleged work and labor was or is at the rate of $50 a week; denies that the agreed upon or reasonable value of said alleged work and labor was or is a total sum of Forty-nine Hundred Seventy-one Dollars Forty-two Cents ($4,971.42), and denies that defendant is indebted to plaintiff in said amount or any part thereof, and denies that the defendant has paid to plaintiff upon said alleged indebtedness the sum of Eleven Hundred Ninety Dollars Sixty-three Cents ($1,190.63), and denies that there is a balance due and owing by defendant to plaintiff in the sum of Thirty-seven Hundred Eighty Dollars, Seventy-nine Cents ($3,780.79), or any part thereof, and denies that plaintiff is entitled to judgment against the defendant for said amount or any part thereof or interest thereon. ’ ’

During the trial in ruling upon the evidence the court sustained an objection made by defendant to the plaintiff’s question in an endeavor to show how much time he had devoted in working for defendant. Plaintiff’s counsel then said: “My statement of claim is not predicated on the contract alone, but on a reasonable amount, I am suing on two theories ,. , , I can’t show then the reasonable value?” “The Court: All right, show an exception. Let the record show at this time, so there won’t be any question about it, that the pleadings in this case show the plaintiff is suing for work and labor performed at the rate of $50 per week, on account of a contract entered into between the plaintiff and the defendant corporation.”

The court evidently took the, position that the amended statement of claim would not permit plaintiff to proceed on the theory that, if he failed in proving an express contract, he could not proceed under a statement of claim equivalent to the common counts the same being’ for the reasonable value of the services if they were performed. The defendant in its affidavit of defense took issue as to both the so-called express contract and the statement as to the quantum meruit.

The record does not show any motion was made to strike the pleadings for any alleged insufficiency.

In the case of Highway Com’rs v. Bloomington, 253 Ill. 164, the court said: “An ‘express assumpsit,’ by the common law, was ‘an undertaking made orally, by writing not under seal or by matter of record, to perform an act or to pay a sum of money to another.’ An ‘implied assumpsit’ was defined to be ‘an undertaking presumed, in law, to have been made by a party from his conduct, although he has not made any express promise.’ (Bouvier’s Law Diet.) There were two general forms in the action of assumpsit. ‘Special assumpsit’ was brought upon an express contract or promise, while ‘general assumpsit’ was brought upon an implied contract. (2 Smith’s Leading Cases, 14.)

“It will thus be seen that there is a general agreement between a special assumpsit and an express contract, and general assumpsit and an implied contract. As ordinarily understood, the only difference between an express contract and an implied contract is, that in the former the parties arrive at their agreement by words, either oral or written, sealed or unsealed, while in the latter their agreement is arrived at by a consideration of their acts and conduct. (2 Page on Contracts, sec. 771.) In both of these cases there is, in fact, a contract existing between the parties, the only difference being in the character of evidence necessary to establish it. A familiar illustration of an implied contract is, where one person, in the absence of any express agreement, renders valuable services to another which are knowingly accepted by such other, the law will imply a promise to pay a fair and reasonable compensation for such services.”

In the case of Mowatt v. City of Chicago, 292 Ill. 578, at page 581, the court said: “The nature of the undertaking in both these classes of contracts is the same, and both express contracts and contracts implied in fact are founded on the mutual agreement of the parties. The one class is proved by direct, the other by indirect, evidence. One must be proved by an actual agreement, while in the other it will be implied that the party did make such an agreement under the circumstances and conditions disclosed.”

It has been held under common law pleading that where one declares on a special contract he cannot abandon the special contract and recover on the “quantum meruit” but the rule has been relaxed.

Where the complaint counts upon a special contract and the plaintiff fails in the establishment of the same, but does show that in fact services were rendered, he may recover upon a quantum meruit. Such rule has long been the settled law. Sussdorff v. Schmidt, 55 N. Y. 319; Shirk v. Brookfield, 77 App. Div. 295, 79 N. Y. S. 225.

In this State there has been a studied effort to get away from the so-called technicalities of the common law pleading. The legislature in adopting the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, sec. 33, subsec. 3, 1J161; Jones Ill. Stats. Ann. 104.033) provides :

“Pleadings shall be liberally construed with a view to doing substantial justice between the parties.”

Section 42, Ill. State Bar Stats. 1935, ch. 110, U170; Jones Ill. Stats. Ann. 104.042, provides:

“ (1) If any pleading is insufficient in substance or form the court may order a fuller or more particular statement; and if the pleadings do not sufficiently define the issues the court may order other pleadings prepared.

“ (2) No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet.

“(3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.”

We are of the opinion that by plaintiff’s statement of claim the defendant was reasonably informed in the matter as to plaintiff’s position and the evidence which would be brought forward in support thereof.

In the rulings on evidence many errors were committed based doubtless on the court’s theory as stated in his remarks as appearing in the record. Inasmuch as this case will have to be retried, it is unnecessary at this time to make further comment.

We are of the opinion that the plaintiff should be permitted to show by competent evidence his transactions with the defendant, and from a careful consideration of that evidence the rights of the parties should be determined. This was not done in the former trial.

The judgment of the municipal court is, therefore, reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel and Hall, JJ., concur..