author: Mr. Justice Wolfe

text:
    Harold J. Stott, Appellee, v. H. H. Head, Appellant.
    Gen. No. 9,774.

      Heard in this court at the May term, 1942.
    Opinion filed August 21, 1942.
    Rehearing denied October 6, 1942.
    James H. Andrews, Harper Andrews and Campbell Andrews, all of Kewanee, for appellant.
    Thomas J. Welch and Vera M. Binks, both of Kewanee, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On March 25, 1939, the plaintiff filed his complaint in the city court of Kewanee for an injunction to restrain the defendant from foreclosing a chattel mortgage on property in the possession of and owned by the plaintiff. A temporary injunction was issued and after the chancellor had sustained the findings of the master in chancery, the injunction was made permanent. The defendant has appealed from this decree. A judgment was entered against the defendant for $147.80 as overpayments on the note secured by the mortgage, in the nature of claims for damages which would have been available to the defendant in a suit at law. It is first contended by the defendant that the court erred in taking jurisdiction of the suit, because the pleadings and evidence do not support a ground for equitable relief.

It appears from the evidence that it was the understanding of the parties that the mortgage was to be on all the typewriters in use for instruction purposes on the 13th day of November, 1937, and other equipment of the Kewanee Business College, all of which the defendant transferred to the plaintiff by bill of sale dated January 8, 1938, The note and mortgage were executed on the same day as the bill of sale, and the note was for $1,800' the unpaid balance of the purchase price for the typewriters and other equipment of the college.

In a letter to the plaintiff, the defendant had listed the typewriters for sale as: “28 Typewriters (6 Smiths, 7 Underwoods, 5 Woodstopks, 10 Royals)— $1,120.00.” On October 13, 1937, after the defendant had received the letter, he came to Kewanee from his home in Michigan, and in the presence of the defendant, ascertained the number and examined the typewriters in use for instruction purposes in the college. On November 13, 1937, the plaintiff again examined the typewriters, and on that day agreed to buy the typewriters and other equipment of the college.

In the bill of sale, and in the mortgage the typewriters are described as, “6 L. C. Smith typewriters; 7 Underwood typewriters; 5 Woodstock typewriters; 10 Royal typewriters.” Both parties consented to this general description of the typewriters, and considered it sufficient to express their understanding that the typewriters sold and mortgaged, were those in use for instruction purposes, or, “on the typing floor” in the college on October 13, 1937, and November 13, 1937. The plaintiff took possession of the typewriters and other equipment on January 3, 1938.

One of the allegations of the complaint is that the plaintiff was to receive titlé from the defendant to 28 typewriters being 6 L. C. Smiths, 7 Underwoods, 5 Woodstocks and 10 Royals which were then in the business college and part of the equipment thereof; that between the time of the agreement to purchase all of said equipment, and the time .the plaintiff took possession of the equipment, the defendant fraudulently removed from the business college 11 of the most valuable typewriters in said equipment, being 8 Royal and 3 L. C. Smith typewriters, and substituted therefor, 11 other typewriters, which were of much less value, and were in such poor condition that they were of little value, or use to the plaintiff. The complaint also charges that the defendant is insolvent; that the plaintiff would suffer irreparable damages if the mortgage were foreclosed; that the note and mortgage should be canceled.

Other allegations of the complaint.are that the plaintiff is entitled to credits on his note as adjustment of tuition charges, as agreed by the defendant; that the bill of sale warrants the title to 14 light fixtures; that the defendant never had title to 12 of the fixtures, and damages should be awarded the plaintiff for the value of the 12 fixtures. The allegation of the complaint that the defendant had placed the mortgage in the hands of a constable for foreclosure, is not disputed. As above stated, the plaintiff’s claims for credits on his note, and damages for default of title in the plaintiff to 12 light fixtures, were purely legal demands.

The Civil Practice Act provides that subject to rules, a plaintiff may join any causes of action, whether legal or equitable or both, against a defendant. The simple objection that legal and equitable causes of action are joined in the complaint, is unavailing. (Section 44, Civil Practice Act [Jones Ill. Stats. Ann. 104.044]; Supreme Court Rules of Practice No. 11.) It has long been the rule that a court of equity having jurisdiction on any equitable ground, will retain the cause- and afford complete relief, although it becomes necessary to enforce purely legal rights. (Fleming v. Reheis, 275 Ill. 132.)

The facts alleged in the complaint charging a substitution of typewriters, unchallenged in the pleadings by the defendant, except by his answer, constitute a charge of fraud directly connected with the subject matter of the foreclosure of the mortgage. The issuance of an injunction to restrain the foreclosure of a chattel mortgage based on the fraud of the mortgagee in connection with the execution, or foreclosure of the mortgage, is not foreign to the jurisdiction of a court of equity. (Macpherson v. Morrill, 190 Ill. 194; O’Neill v. Dougherty, 96 Ill. App. 1; Hodson v. Eugene Glass Co., 156 Ill. 397; Petillon v. Noble, 73 Ill. 567; Carroll v. Barry Bros. Transp. Co., 118 Ill. App. 230.) It does not appear from the abstract that the defendant made any objection in the trial court, that the plaintiff should have sought relief in a court of law, so there is no ruling of that court on such an objection.' This being so, the defendant will be deemed to have waived this jurisdictional question in a court of review. It is stated by counsel for the defendant that the sufficiency of the complaint to state an equitable cause of action is challenged by his motion to dissolve the temporary injunction, which was filed immediately after the court enjoined the foreclosure of the mortgage. The reason stated in the motion, now pertinent to the question under consideration, is, “that there is no equity on the face of the complaint.” It is decided in the case of Leslie E. Keeley Co. v. Hargreaves, 236 Ill. 316, at page 322, as follows: “The first assignments of error are directed against the action of the court granting a preliminary injunction without notice, and without sufficient verification of the bill, and various defects in the bill are suggested. The granting of a preliminary injunction cannot be assigned for error. (Tunison v. Chamblin, 88 Ill. 378.) It is merely interlocutory, and is open to review only upon an appeal taken in the manner provided in the act for appeals from interlocutory orders. The injunction was made perpetual by the final decree, and in the review of the decree it is immaterial whether or not a preliminary injunction was issued, or, if it was, whether it was rightly or wrongly issued.”

The contention of the defendant that the court erred in taking jurisdiction of the suit, “resolves itself into an assertion of the existence of an adequate remedy in the courts of law.” 21 C. J. 161, sec. 145. This assertion should have been made in the trial court with a ruling thereon to save the jurisdictional question for review. Furthermore, the defendant filed an answer to the merits of the case, and in his counterclaim he asked for affirmative equitable relief of foreclosure of the mortgage. He made no motion to dismiss the complaint on the ground that the plaintiff had an adequate remedy at law; nor did he file a motion for a severance of the equitable and legal causes of action stated in the complaint. (Leonard v. Arnold, 244 Ill. 429 and Anderson v. Olsen, 293 Ill. App. 637 (Abst.); 21 C. J. 162, secs. 146 et. seq.) The subject matter of the suit not being wholly foreign to the field of equitable jurisdiction, the trial court did not err in taking jurisdiction of the suit.

The contention of the defendant that the plaintiff did not prove that the defendant was insolvent, is without merit. Both the master and the chancellor found in favor of the plaintiff on the charge of fraud made in the complaint. As will hereafter appear, there was competent evidence introduced by the plaintiff tending to support the charge of fraud. The court did not err in rendering a final decree. (Heiderich v. Heiderich, 18 Ill. App. 142.)

The decree confirming the report of the master finds that the statement of account between the parties is: I. That there was due on the note $1,908.00 with cash payment of $1,165.91, leaving unpaid on the note $742.09. II. Credits:

Winnifried Hannon — Tuition •

furnished .......................$63.57

Alberts Byan — 8% months tuition

furnished at $11.25 per month.....95.62

Phyllis Johnson — Tuition furnished. .100.00

Light fixtures — 12 @ $9.85 each.....118.20

Typewriters.......................512.50 $889.89

Overpaid ..................................$147.80

The decree canceled the note and mortgage and entered a money judgment in favor of the plaintiff against the defendant for $147.80. Division Ho. I of the account is not disputed. Bach credit allowed in the division Ho. II of the account is contested by the defendant by specific objections thereto.

Directed at the item of the account allowing $512.50 for typewriters, it is argued by the defendant that the plaintiff, by his delay, has waived his right to damages for the alleged fraud of the defendant, as alleged in the complaint. This defense of the defendant is pleaded in his answer substantially as follows: That plaintiff personally supervised, attended and assisted in the delivery to him of all of the equipment of said business college on, or about January 1, 1938, and examined and identified all of said equipment on that date, and made no objection or complaint with reference thereto, and with full knowledge of all the facts relating to said transaction accepted all of said equipment in satisfaction of his contract of sale; that defendant failed and neglected for the period of one year to raise the objections mentioned in the complaint, knowing all the facts with reference to said objections ; that by reason of said delay, a large part of said equipment has depreciated in value, and has been sold, or transferred pursuant to the agreement of the parties, and has been injured and damaged in the course of its use in the business of the plaintiff; that various evidence and records with reference to said equipment has been lost, destroyed and become unavailable because of said delay; that defendant has been thereby greatly damaged and prejudiced in defending the claims asserted in the complaint, and in obtaining evidence of the facts with reference to said sale.

It appears from the evidence that the plaintiff took possession of the equipment of the college on January 3, 1938, and assumed control and operation of the college. There is no evidence that he made an examination of the equipment of the college on that date. The plaintiff testified that about one week after January 3, 1938, he discovered that eight new Royal and three L. C. Smith typewriters, which were on the typing floor of the college on November 13, 1937, were missing and a like number of similar make typewriters, but used or old ones, were among the typewriters on the typing floor. At the request of the plaintiff, Elmer Thiessen made an inventory of the typewriters on the typing floor during the forepart of January 1938. Thiessen was familiar with the typewriters on the floor on November 13, 1937. The witness G. D. Canfield, a salesman for the Underwood Typewriter Company, testified that he made routine examinations of typewriters on the typing floor of the college during the last week in October, and during the last week of November, or the first part of December, in the year 1937. Thiessen was the manager of a firm selling L. C. Smith typewriters. Both of these witnesses corroborated the testimony of the plaintiff, relative to the missing new typewriters, and the presence there of the used typewriters.

In December 1938, the plaintiff told the defendant in his office in Peoria that he was making a payment at the bank on the note, and explained that he was not paying the balance on the note, because of the substitution of typewriters. The payment was made on the note to the amount of $1,115.91. The defendant, after this conversation with the plaintiff, employed an attorney to collect the note, and on March 20, 1939, the plaintiff paid $50 on the note, and a few days later filed his complaint for the injunction. Between January 3, 1938,- and December 1938, the plaintiff and the defendant were on friendly terms, meeting socially, and the defendant visited the college of the plaintiff in Kewanee; the plaintiff visited the business school of the defendant in Peoria. The plaintiff testified that he spent about nine months corresponding with typewriter companies to learn the serial numbers of the used typewriters in question, so as to ascertain who had purchased them, and how long they had been in use.

The plaintiff has asked for equitable relief in his complaint, and he must be held to offer to do equity, in other words, pay the amount justly due on his note if he failed to prove the charge of fraud in the complaint. He has, in effect, asked for the affirmation of the contract of sale less such damages the evidence shows he has sustained under the allegations of his complaint, both of an equitable and a legal nature. The law gives him this remedy. That it would work a great hardship on him to rescind the contract of sale and return the subject matter of the sale to the defendant, on the ground of the alleged fraud, is apparent. He left his home in Michigan to take ownership and operation of the college, and the business of operating the college would have been lost to him had he rescinded the sale. The contract of sale was fully executed on both sides. It was entirely fulfilled by the plaintiff when he paid part of the purchase price, and gave his note and mortgage for the unpaid balance of the purchase price. The defendant had delivered possession of the equipment of the college to the plaintiff.

The defendant, at thé hearing before the master, defended the charge of fraud by denying that he had substituted used or old typewriters for new typewriters which were on the typing floor on November 13, 1937. He claims that on January 15 or 20, 1938, he moved several new typewriters from a storage room in the college which were by both parties excepted from the sale, and that the plaintiff was present when these typewriters, with other equipment of the college, were removed. There is no evidence that the defendant was prejudiced because of the loss, or destruction of records relating to typewriters, as alleged in his answer. If there was a change of typewriters, as alleged in the complaint, the defendant as an experienced owner and operator of the business college, frequently trading in used typewriters for new ones, had knowledge of the value of such typewriters.

Under the facts in evidence, the principle of law applicable to the defense of the defendant that the plaintiff by delay had waived his right to recover damages for the alleged fraud, is stated in the case of Smith v. Werkheiser, 152 Mich. 177, 115 N. W. 964, where the defendants sold a newspaper plant to the plaintiffs and they executed a note secured by a chattel mortgage on the plant for part of the purchase price. After the plaintiffs purchased the plant he discovered that false representations were made by the defendant concerning the circulation of the newspaper and the amount of advertising done by the newspaper. The defendant threatened foreclosure and the plaintiffs obtained a temporary injunction restraining the seizure of the property, which the lower court refused to make permanent. The Supreme Court of Michigan reversed the decree, deciding that the case was one for appropriate equitable relief, and disposed of defendants’ contention that the plaintiffs had waived their right to damages for the fraud as follows: “Defendants’ counsel cites many authorities which hold that a defrauded party, in order to rescind a contract, must act with diligence, and that he must restore to the party who defrauded him what he received. The propositions declared by these authorities are elementary principles of law, but that have no application in this case. Complainants are not seeking to rescind their contract. They have affirmed their contract, and they recognize its binding force.- They obtain relief in this case, not upon the ground of rescission, but upon the ground that they are entitled to have their damages — damages computed upon the assumption that the contract is affirmed — resulting from defendants’ fraud applied in payment of the mortgage in suit.” The principle of law stated in the above case is supported by the authorities. (Van Natta v. Snyder, supra, L. R. A. 1918A 110; 27 C. J. 484, sec. 135; 24 Am. Jur. 41.)

We have read the testimony of the plaintiff and the defendant in this case, as it appears in the abstract, and it is not clearly manifest therefrom that the plaintiff ■ intentionally condoned the alleged fraud, and abandoned all right to recover damages for the fraud with full knowledge thereof. Aside from the filing of his complaint, there appears no evidence sustaining any conclusion of fact of the plaintiff’s affirmation of the contract of sale equivalent to a ratification of it.

That part of the decree finding that the plaintiff is entitled to a credit of $95.62 as adjustment of tuition is based on conflicting evidence whether or not it was the understanding of the parties that the adjustment should be made as found in the decree. After a review of the evidence, we conclude that the decree determining this controversy between the parties is not against the manifest or greater weight of the evidence.

The defendant failed to defend successfully his warranty of title, in his bill of sale, to 12 light fixtures. The parties had agreed that the purchase price of each light fixture was $9.85, a total of $118.20 which sum was included in the principal of the promissory note of the plaintiff. The plaintiff is entitled to a credit of $118.20 under the item of the account in the decree for light fixtures.

The finding in the decree that the plaintiff has proved the charge of fraud alleged in the complaint is the conclusion of the master in chancery, and a finding of facts by the chancellor on a question of fact on conflicting testimony is supported by the evidence. After a review of the evidence, we conclude that we would not be justified in disturbing' the findings of the court on the contention that this finding is manifestly against the weight of the evidence.

The evidence as to the market value of the old typewriters substituted for the new Eoyals and the L. 0. Smiths is not as clear as desirable. The plaintiff’s witnesses testified as to the list price of new machines. There is also evidence as to the market value of the second hand, or used machines. The defendant, who is an experienced man in buying, selling and using both new and second-hand typewriters, testified that he knew the value of such typewriters, but an examination of his testimony did not disclose that he placed any particular value on either the used, or new typewriters. From an examination of the testimony relative to this subject, we are satisfied that the chancellor’s finding is fair and not unreasonable.

We find no reversible error in the case, and the decree and judgment appealed from is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Huffman

license: Public Domain

text:
    Citizens Loan Trust, by W. F. Brandenburg and L. T. King, Trustees, Appellee, v. Olga A. Dahlin et al., Appellants.
    Gen. No. 9,788.
    Heard in this court at the May term, 1942.
    Opinion filed September 3, 1942.
    Rehearing denied October 6, 1942.
    Ryan & Hood, of Rockford, for appellants.
    Wilbur E. Johnson, of Rockford, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Olga A. Dahlin and John A. Dahlin were engaged in selling washing machines and other household electrical appliances, in the city of Rockford. The Citizens Discount Company was a finance company located in the city of Aurora. This company effected a change in its organization, and since such time, operates under the name of Citizens Loan Trust.. Either of these organizations will hereafter be referred to as the finance company.

The operation of the business of appellants was characteristic of such enterprises. The merchandise was sold on conditional sales contracts. It was the custom of appellants to discount these contracts with the finance company. The finance company upon discounting the paper, would reserve 10 per cent of the amount due thereon, as a reserve account, and advance to appellants the remaining balance. Appellants were required to indorse all such paper with full responsibility for its payment.

The difference between the parties to this suit arose about June 1930. Collections were becoming very difficult, and in many instances, impossible. Much time and effort was required in the attempt to make them. Repossessions and resales were costly. This gave rise to the finance company shifting the burden to the dealer, and the dealer making such collections at a time when his business was disintegrating. The usual result ensued. Appellants used whatever cash was available to keep their business going. The auditor of the finance company, in examining appellants’ books, discovered they had collected $3,150, on contracts previously negotiated to appellee, had failed to remit' the money, and were unable to make settlement thereof.

The finance company in order to secure itself, took a chattel mortgage from appellants upon their motor vehicles, the office equipment connected with their place of business, and a second mortgage on real estate located in Rockford. A first mortgage on the real estate was held by the Swedish Building and Loan Association of Rockford.

Appellants in December 1930, filed a voluntary petition in bankruptcy. It appears, however, that no trustee was ever appointed, and no discharge was ever made.

Appellee brought this suit to foreclose its mortgage against the premises. The mortgage is alleged to be subject to that held by the Swedish Building and Loan Association. Appellants filed answer and counterclaim. In the counterclaim, they set up there had never been an accounting with respect to the 10 per cent reserve fund, nor any credits. allowed pursuant to the personal property that was taken by appellee under the chattel mortgage. Appellee filed answer to the counterclaim, alleging that appellants had received credit for all those items, and denied that any balance remained due.

The court granted foreclosure pursuant to complaint. Appellants prosecute this appeal from the decree of the trial court, urging as the grounfi for reversal, the refusal of the court to grant them any relief under their counterclaim. Appellants offered no proof to sustain their counterclaim. They presented no witness, and the hearing ended at the close of appellee’s evidence. After the case was tried, appellants later came in with a motion for leave to re-argue the case. This motion merely set up the same claims as appellants advanced in their counterclaim. The court denied the motion to re-argue the case. We do not see wherein the court erred in such regard. It was incumbent upon appellants to take proper steps to bring evidence forward in support of their counterclaim. The pleadings in no wise admit such credits, but on the contrary, deny the existence of same, and allege that appellants' had received full benefit thereof. This presented an issue of fact. There was nothing before the court upon which he could determine such fact, or the equity thereof. Certain conversation took place between the trial court and attorneys for appellants, with respect to their bankruptcy proceedings, and the effect such proceedings would have upon such credits, but this did not occur upon any proof being offered by appellants.

In the state of the record, the decree will be affirmed.

Decree affirmed.

Dove, J., dissents.


text:
    Jules Chain Store Corporation, Appellee, v. Leonard Stone, Appellant.
    Gen. No. 9,796.
    Heard in this court at the May term, 1942.
    Opinion filed September 3, 1942.
    Rehearing denied October 6, 1942.
    Oakleaf & Churchill, of Moline, for appellant; Cyrus Churchill, of Moline, of counsel.
    Johnston, Railsback & Bozeman, of Moline, for appellee; Virgil Bozeman, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee is engaged in the operation of retail clothing stores, selling principally on credit. Appellant had been an employee of appellee for some time at various of its stores. He worked in Niles, Michigan; Newcastle, Indiana; and Anderson, Indiana. He came to Moline, and under date of Sept. 10,1937, entered into a written contract with appellee,. wherein he accepted employment as manager of its store. This contract contained a restrictive covenant of employment, wherein appellant agreed that in the event of the termination thereof, he would not accept employment or become affiliated or connected with, in any manner, a similar or like character of business, within the city of Moline, or within 15 miles from such city, for a period of two years. His employment with appellee ended in the early part of 1941. Subsequently he became manager of a credit clothing store in Moline, owned by his father and uncle.

The trial court found the contract between appellee and appellant to be reasonable and not in unlawful restraint of trade. Injunction was granted as prayed, restraining appellant from having any connection, directly or indirectly with Stone’s Credit Clothing & Jewelry Store, and from in any way participating in the operation or management of such business establishment, and in general restraining appellant from becoming engaged in the operation of any business of a similar or like nature to that of appellee, in the city of Moline, for a period of two years, which period expires on March 12, 1943.

Appellant has brought this appeal from the decree against him.

The evidence shows that during appellant’s employment with appellee, he experienced a gradual increase in salary. At the time of the termination of his employment, he was receiving* $200 per month. Following the severance of his business relations with appellee, he was offered a similar position with the Sumner Stores, at Memphis, Tennessee, at the same salary he was receiving from appellee. He declined this offer at the instance of his father and uncle, who later opened the credit clothing store in Moline, of which appellant assumed the position of manager, at the salary of $100 per month.

Where the contract of employment contains a covenant not to engage in a 'rival business, and the restraint is reasonably limited as to time and place, and supported by valuable consideration, it is valid and enforcible. Such doctrine is supported generally by the various jurisdictions. The following are some of the cases of this jurisdiction supporting such rule: Old Rose Distilling Co. v. Feuer, 202 Ill. App. 210; International Mut. Fire Ins. Co. v. Carrington, 241 Ill. App. 208; Jewel Tea Co. v. Petersen, 200 Ill. App. 157; Storer v. Brock, 351 Ill. 643; Harrison v. Glucose Sugar Refining Co., 116 Fed. 304, 53 C. C. A. 484, 58 L. R. A. 915; Wark v. Ervin Press Corp., 48 F. (2d) 152.

The decree awarding the injunction is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Matchett

text:
    Maywood Farms Company, Appellant, v. Milk Wagon Drivers’ Union of Chicago, Local 753, et al., Appellees.
    Gen. No. 42,134.

      Heard in the first division of this court for the first district at the February term, 1942.
    Opinion filed September 9, 1942.
    Rehearing denied September 28, 1942.
    William H. Sloan and Murphy, Lilliander & Gemmill, all of Chicago, for appellant; William B. Gemmill, of Chicago, of counsel.
    David A. Riskind and Abraham W. Brussell, both of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff is a distributor of milk in Chicago and its suburbs; its principal office is in Maywood; it employs about 60 persons; it purchases milk from farmers; it sells the milk at its plant in Maywood to independent contractors or vendors and delivers milk by its trucks to stores throughout the city of Chicago, where the consumers purchase and carry the milk to their homes. To the extent that the business is successful it competes with the milk delivered by wagons throughout the city direct to homes, and the milk is delivered at a lower price.

Defendant Milk Wagon Drivers’ Union regards this competition as unfair. It caused the plant of plaintiff to be picketed by persons who carried banners declaring that plaintiff was unfair to organized labor. It went further and placed pickets about the stores of such persons as purchased and sold plaintiff’s milk. There was no claim plaintiff was unfair as to, the treatment of or wages paid to its employees.

Plaintiff filed its complaint praying an injunction against this picketing and violence, intimidation, etc. said to go with it. The trial court dismissed the complaint. Plaintiff appealed to this court. We reversed the order and directed the trial court to issue the injunction as prayed. Maywood Farms Co. v. Milk Wagon Drivers Union of Chicago, Local 753, 301 Ill. App. 607 (Abst.).

On February 13, 1941, defendants relying on later cases filed in the trial court its petition praying modification of the injunction so as to permit peaceful picketing. Defendant relied on a number of cases holding that such picketing was lawful even in support of a secondary boycott. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287; American Federation of Labor v. Swing, 312 U. S. 321; 2063 Lawrence Avenue Bldg. Corp. v. Van Heck, 377 Ill. 37; and Ellingsen v. Milk Wagon Drivers’ Union of Chicago, Local No. 753, 377 Ill. 76. March 4, 1941, the trial court so modified the injunction. Plaintiff appealed and we affirmed the order. Maywood Farms Co. v. Milk Wagon Drivers’ Union of Chicago, Local 753, 313 Ill. App. 24. Thereafter peaceful picketing was continued by defendants until November 5, 1941, when a change was made which brought about the present litigation.

November 6,1941, plaintiff filed its petition alleging that defendant had changed its method and was using force, intimidation and violence in disregard of the injunction as modified. The court after hearing the evidence ruled James Kennedy, president of defendant union, Peter Hoban, its vice president, and A1 Richards, its business agent, to show cause why they should not be punished for contempt for violating the injunction. As first drawn the order also directe'd the defendant union to likewise show cause. This was afterwards changed by order of the judge by deleting at the request of defendants’ attorney and over objection of plaintiff the name of the defendant union. Afterwards plaintiff filed a petition setting up that defendants were using violence and intimidation and praying that the order of March 4, 1941, permitting peaceful picketing should be set aside. Defendants answered. Plaintiff moved that evidence taken on the rule to show cause should also be considered as applicable to the issue under this petition. Ruling was reserved and at the end of the hearing denied. The prayer of the petition was also denied, and the rule on the three respondents to show cause discharged.

Plaintiff appeals from the order of November 10, 1941, deleting the name of the defendant union, from the order to show cause, from the order of November 19, 1941, discharging the rule, and from an order entered denying its petition to set aside the order of March 4, 1941; also from the order denying its motion to consider the evidence taken on the rule to show cause on the issues raised by the petition of plaintiff to vacate the order of March 4,1941.

We hold the court should have ruled defendant union to show cause. Respondents were officers of the union and acting for it. The injunction ran against the union. There was no reason to rule the officers to answer and at the same time excuse the union for which they were acting in what they did. The union is a juridical entity. It is not excused from liability for its acts by reason of the fact that it is a voluntary unincorporated association. Anderson & Lind Mfg. Co. v. Carpenters’ Dist. Council, 308 Ill. 488, 496. The court erred in not ruling the union to answer.

We think also the court might well have considered as applicable to the issues on the rule to show cause and the petition to set aside the order modifying the injunction so as to permit peaceful picketing all the evidence heard on each issue. The issues were identical ; the parties were the same; the same judge was to pass on the issues. Under these circumstances there was no necessity to take evidence of the same occurrences as given by the same witnesses twice. The trial judge intimated he could not set aside this order because the injunction was permanent and the term of court at which it was entered had gone by. The court was hardly consistent in this. The original injunction was also permanent. The term of the court at which it was entered had passed, but the order to modify the injunction so as to permit peaceful picketing was nevertheless entered. The Supreme Court of the United States gave a sufficient answer to the problem in the mind of the court when in the Meadowmoor case it said that an injunction of this kind “is permanent only for the temporary period for which it may last.” Upon the same theory this court sustained the order modifying the original injunction. (313 Ill. App. 24.) We think the motion ought to have been granted.

We come to the question of whether respondents were guilty of violating the injunction by the use of violence and intimidation, etc. The issue was hotly contested. There is a voluminous record. Abstracts are submitted by each of the parties, adding much to the labors of this court. We have carefully considered all the evidence. In our opinion it shows respondents were guilty beyond a reasonable doubt. It would unduly extend this opinion to discuss every circumstance in detail. We therefore summarize.

Oscar E. Miske was president of plaintiff; Leslie Goudie was president of Teamsters’ Joint Council No. 25 of Chicago, affiliated with the international union. There were 47 local unions subject to Goudie, of which was defendant union. The whole membership of these would number about 50,000 persons.

Goudie, testifying for respondents, said he had a conversation with defendant’s officials, Haggerty, Kennedy and Hoban, about the 4th or 5th of November, 1941; they told him of their peaceful picketing and their exercise of the right of free speech according to approved standards. Apparently it had not proved effectual and sufficient from their standpoint, He told them, he says, that was not “the right procedure.” He told them the best plan would be “to go out to Maywood Farms and talk to the men and get a contract direct from the employer.” He says he had his clerk call up the locals “about cooperation of other affiliated locals under my joint council. . . . I instructed my clerk to call them up and tell them that we were going to call a strike on the May-wood Farms and if they could be of any help or assistance we would like to have them around there.”

November 5, all the respondents with officers of the defendant union and an undetermined number of members, officers and business agents of affiliated unions, gathered early in the day at plaintiff’s place of business. Plaintiff’s employees numbered about 60. The persons who gathered on this occasion are estimated from 10 or 15 to. 150 persons. Respondent Kennedy was present, and each day reported the progress to Goudie. It is agreed the drivers were accosted on this first morning, and the evidence for plaintiff tends to show were threatened and warned not to go out on their routes. Respondents deny threats, but whether they were made or not there is no doubt about what happened.

About 9 o’clock on this first day, at the intersection of route 53 and Irving Park Boulevard, one of plaintiff’s trucks was found abandoned. The hood was raised, the ignition wires as well as two fog lights had been removed. Early on November 6, a like unusually large number of men and automobiles gathered at plaintiff’s plant. Attorneys for plaintiff appeared before the trial judge (court then being in session) and at the suggestion of the judge appealed to the sheriff of Cook county for protection. The sheriff sent squad cars to protect the trucks on the highways. This protection began on Thursday afternoon, November 6. The protection was withdrawn on Friday afternoon of November 7. Goudie tells why this came about. He says that on November 6 he had a report from Kennedy as to the progress. The report came sometime in the afternoon. Kennedy called up from Maywood. He said the Maywood Farms were running trucks and that they were being convoyed from the sheriff’s office. He asked what they could do, and Goudie said, “Jim, all you can do is keep your place there and keep off the Maywood Farms Co. and don’t interfere with their trucks.” This is what he said. What he did he also tells. “I went to the sheriff’s office on November 7, to protest against the sheriff’s squad cars convoying the trucks to jobs and so forth and the sheriff said, ‘We have to protect lives and property.’ I told him that I had no objection to that . . . but I didn’t think it was right to make delivery men out of policemen.” This was (according to Goudie) between 3 and 4 o’clock in the afternoon. He says, “I was concerned with whether Sheriff O’Brien had his police out there because I thought that it was working against the employees of the company as well as our organization. . . . I talked to the sheriff to try to get his men from convoying the trucks.” Kennedy, president of the union, was with Goudie when he interviewed the sheriff. At 4:30 p.m. of that day the squad cars of the sheriff ceased giving protection. This was Friday afternoon.

What happened on Monday is significant. Barsevick, six years an employee of plaintiff, a witness who the trial judge said was so frank that he would believe him without corroboration, testifies that on Monday morning at about 9 o’clock he was driving a truck for plaintiff picking up milk from farm to farm. As he drove down Big Timber Road a black sedan pulled up along side and shooting was started. He pulled his brakes and stopped. There were five men in the black sedan. They had dark hats turned down over their faces. He had seen the car before. It was a black Cadillac, a 1941 car. Four other cars drove up. They beset him on either side and before and behind. There were five cars in all. He recognized the first car as one he had seen in front of the dairy all the time with defendant’s pickets standing around it with the usual signs. There were about twenty men in these five cars that assaulted him. The men got out, kicked the panels and sides out of the truck. The shooting came only from the first car. The witness, with his helper, ran down the road to a farm house. They afterwards walked back and examined the truck. The windows, panels and sides were knocked out, the floor was kicked in and the radiator filled with bullet holes. This testimony is corroborated by that of two other disinterested witnesses, hunters who were passing that way.

Violence was not, however, confined to remote roads. On the morning of November 7, Gabrielson and Helmuth Miske, two employees of plaintiff, went to work at the plant as usual. Some 22 steps away was a coffee shop, and they went there to get food and drink. The place was crowded with the organizers who had been called together. As G-abrielson came out the door he was hit in the eye, and he nam.es respondent Hoban as the man who hit him. He looked around and saw Miske lying on the sidewalk. The crowd set upon bim and hit him continuously as he went from the door of the restaurant to the office. His arms were pinioned; he was pounded in the face and over the head. Miske was likewise assaulted. His condition is described by agreement in the record as follows: “Two black eyes, the right eye blacker than the left eye. The right eye ball is red and inflamed. I see scratches on his nose and on his right cheek and under his eyes and I see three cut places on his lip.” The court inquired whether his eyes were black before he was struck, and the witness replied in substance that they were not.

Defendants called these men together. They offered no opposition to this beating and slugging. All this violence came about as a part of a movement defendants designed and of which they were a part. Arrangements were made with military precision. A crowd was present as a result of telephone calls made from Gfoudie’s clerk after a conference with Groudie and officials of the union. They who came out numbered all employees at plaintiff’s plant. Automobiles were on hand in large numbers. For a court to hold actions such as this the exercise of the right of freedom to speak and to write would be ridiculous.

The trial judge seemed to be of the opinion it was necessary for plaintiff to show that the respondents had themselves personally and openly participated in acts of violence. This is not the law. They who plan, aid and abet are also responsible. There is a wealth of authority. High on Injunctions, Vol. II, par. 1416; Christensen v. People, 114 Ill. App. 40; Anderson & Lind Mfg. Co. v. Carpenters’ Dist. Council, 226 Ill. App. 532; Fansteel Metallurgical Corp. v. Lodge 66 of Amalgamated Ass’n of Iron, Steel & Tin Workers, 295 Ill. App. 323; Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U. S. 287. In the case last cited the defendant union here was also defendant there. The words of the opinion by Mr. Justice Frankfurter are appropriate: “These acts of violence are neither episodic nor isolated. Judges need not be so innocent of the actualities of such an industrial conflict as this record discloses as to find in the Constitution a denial of the right of Illinois to conclude that the use of force on such a scale was not the conduct of a few irresponsible outsiders. The Fourteenth Amendment still leaves the state ample discretion in dealing with manifestations of force in the settlement of industrial conflicts. And in exercising its power a state is not to be treated as though the technicalities of the laws of agency were written into the Constitution. ... It is true of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondeat superior. International Association of Machinists v. Labor Board, 311 U. S. 72, 80; Heinz Co. v. Labor Board, 311 U. S. 514.”

The opinion goes on to say in substance that there is nothing in the Fourteenth Amendment that prevents a State from placing confidence in a chancellor’s decree and compels it to rely exclusively on a policeman’s club. This last case is particularly applicable to the issue arising on this record as to whether in view of the violence indulged in, peaceful picketing should be longer permitted. After stating the facts the opinion of Mr. Justice Frankfurter states the issue thus: ‘ The question which thus emerges is whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed.”

.The question is answered in the affirmative.

The order finding respondents not guilty and dismissing plaintiff’s petition will be reversed and the cause remanded with directions to enter an order finding respondents Kennedy, Hoban and Richards guilty of contempt as charged and imposing on them a proper penalty. The order dismissing the petition of plaintiff praying that the order of March 4, 1941, modifying the original decree of injunction and permitting peaceful picketing should be set aside will be reversed and the cause remanded with directions to enter an order as prayed, and for other proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded with directions.

O’Cohhor and McSurelt, JJ., concur.


author: Mr. Justice McSurely

text:
    Herbert Gould, Administrator of Estate of Leone Coral Gould, Deceased, Appellant, v. Robert J. Schlossberg, Trading as Crown Inn and Grill, and William Penny, Appellees.
    Gen. No. 42,075.

      Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed September 9, 1942.
    Rehearing denied September 23, 1942.
    Irving N. Stenn, Angerstein & Angerstein and Wendell H. Shanner, all of Chicago, for appellant; George W. Angerstein, Marion J. Hannigan, Thelma Brook and Charles Wolff, all of Chicago, of counsel.
    Lord, Bissell & Kadyk, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

March 19, 1939 Leone Coral Gould died, and the fundamental question here presented is whether Herbert Gould was the administrator of her estate with authority on May 19,1939 to file a complaint in the superior court alleging that the negligence of defendants caused her death.

April 15, 1940 defendant Schlossberg, the only one served with summons, withdrew his answer and instead moved to dismiss the complaint, alleging that Herbert Gould was not the administrator when the complaint was filed; that he was appointed April 17, 1940, which was more than one year after the death of the decedent; that sec. 2, ch. 70, Ill. Rev. Stat., provides that such death claims must be commenced by the personal representative of the deceased person within one year after the date of death; that Gould was not such representative when this suit was commenced.

April 17, 1940, the probate court, on motion of the attorney for Herbert Gould, found that on April 12, 1939 he applied to- be appointed administrator of the decedent’s estate, that the court costs were paid, administrator’s bond was filed with the Maryland Casualty Company as surety, which bears date of April 12, 1939, as does also the acknowledgment by Grould and the surety; and it was ordered that the records of the probate court he corrected to show that Herbert Grould was appointed administrator on April 12, 1939 and became duly qualified as such administrator on that date. It was also ordered that letters of administration be issued to him mmc pro tunc as of April 12, 1939.

May 7, 1940, the defendant asked the judge of the probate court to approve an appeal bond offered to secure a review in the circuit court of the correctness of the probate court’s nunc pro tunc order of April 17, 1940. This motion was denied.

May 9 defendant filed in the probate court a petition requesting the entry of an order vacating and expunging the nunc pro tunc provisions of the order of the probate court. December 6, 1940 the probate court denied this petition and defendant was given leave to appeal to the circuit court.

Defendant also filed his petition in the superior court for a writ of certiorari for the purpose of reviewing and setting aside the nunc pro tunc provisions of the order of the probate court entered April 17, 1940. These three actions, namely, the motion to dismiss plaintiff’s suit in the superior court, the appeal by Schlossberg to the circuit court from the order of the' probate court, and the petition for certiorari filed in the superior court, were consolidated for hearing and were heard in the superior court as one appeal.

In the superior court, the trial court on April 16, 1941, rendered a decision which, after reciting the three cases which had been consolidated, and the statute, section 2, chapter 70, which requires an action to recover damages for wrongful death he brought by the personal representative within one year after the death, held that Herbert Grould was not such a representative, that he was not appointed administrator until April 17, 1940, which was more than one year after the death of the decedent; that the order of the probate court that the letters issue nunc pro tunc as of April 12, 1939, was invalid as entered without authority, and sustained the motion of defendant to strike the complaint and dismiss the suit. The court suggested that plaintiff would be permitted to retain the proceedings in the probate court for other purposes.

Plaintiff appeals from this order of dismissal and defendant appeals from the orders of the probate court refusing to vacate its nunc pro tunc order and also denying the petition for certiorari to review the probate court record.

It has been held in many cases that where a defendant has been sued by an administrator in a wrongful death action the defendant has no standing in the probate court to question the order appointing the administrator.

In In re Trost’s Estate, 292 Ill. App. 60, the administrator brought a suit against certain defendants for the wrongful death of the decedent. The defendants moved in the probate court to set aside the order appointing the administrator. It was held that the defendants had no interest in the estate of the deceased that would authorize them to move to set aside the appointment of the administrator, and this for the reason that they were only debtors of the estate and that debtors have no such interest in the estate which would give them the right to attack the action of the probate court. The opinion in this case cites a large number of decisions to the same effect. In Missouri Pac. Ry. Co. v. Bradley, 51 Neb. 596, a railroad company sought to have the court set aside the appointment of the administrator. It was held that it was not a creditor but merely a debtor of the estate and sued by the administrator for the recovery of money and that this gave no right to it to petition for the removal of the administrator. Other cases to the same effect are Southern Ry. Co. v. Moore, 158 S. C. 446, 155 S. E. 740; In re Upton’s Estate, 199 Wash. 447, 92 P. (2) 210; In re Togneri’s Estate, 296 Ill. App. 33, 15 N. E. (2d) 908. The defendants’ brief attempts to distinguish these cases from the one at bar but the distinctions suggested are not of controlling importance. We are of the opinion that the superior court had no authority at the instance of the defendant to reverse the order of the probate court, and that the entire appeal from the order of the probate court was a nullity. It scarcely requires argument to sustain the proposition that strangers to any interest in the estate should not be permitted to interfere with the orders of the probate court acting within its general jurisdiction. 'The jurisdiction of the probate court to appoint an administrator is not questioned.

Other points are made upon which it is unnecessary to comment, for clearly the nunc pro tunc order of the probate court was not only within its power to make but was properly made. As we have noted above, Gould appeared in the probate court, applying for letters of administration, on April 12, 1939, as shown by the dates on the application, the date when the costs were paid and the dates on the administrator’s bond. On the same date the estate was given a file number and a page on the clerk’s docket was designated as the appropriate place for entries to be made in the estate. Moreover defendant on August 31,1939, filed bis answer denying liability only and raised no point as to the appointment of Gould as administrator, apparently assuming that the order of appointment was properly entered. It was not until April 15,1940, which was more than one year after the death of the decedent, that the appointment of the administrator was questioned. The failure to enter a formal order of appointment and to deliver letters of administration to Gould, as claimed, were errors which the court could properly correct by its nunc pro tunc order.

In Morgan’s Administrator v. Louisville & N. R. Co., 181 Ry. 76, and in Dallago v. Atlantic Coast Line R. Co., 165 N. C. 269, the facts are almost identical with those here presented, and the decision in those cases supports the conclusion that the appointment of the administrator nunc pro tunc was proper.

For the reasons indicated, the order of dismissal in the superior court was erroneous and the judgment, in that case, is reversed. This also disposes of the appeals by the defendant. The cause is remanded with directions to try the plaintiff’s claim on its merits and for further proceedings consistent with what we have said in this opinion.

Beversed and remanded with directions.

Hatchett, P. J., and 0’Consor, J., concur.


author: Mr. Justice McSurely delivered

text:
    O. F. Weisjohn, Appellee, v. Mary F. Bell, Appellant. Chicago Title and Trust Company, Garnishee.
    Gen. No. 42,092.

      Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed September 9, 1942.
    H. J. Thal, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Justice McSurely delivered

the opinion of the court.

Defendant, Mary F. Bell, appeals from a judgment against her for $737.50, entered in a trial by the court of plaintiff’s claim for a real estate broker’s commission.

No brief has been filed in this court by the plaintiff. We are of the opinion the judgment cannot stand.

Defendant had inherited from her deceased husband, Hayden N. Bell, a farm in Lake county, Illinois. Plaintiff is a duly licensed real estate broker and, knowing that the farm was for sale, in September 1939 wrote to the defendant, who was an invalid in a hospital in Tennessee, saying that he had shown the farm to a party who had made an attractive offer; that this prospect had several farms in mind but plaintiff felt sure he could close a deal with him, and requesting an answer from defendant. To this defendant replied by letter saying in effect that while she was of the opinion the farm was worth more, she would consider an offer of $16,000 net, but would not sell for any less. A number of communications passed between the parties, the plaintiff trying to persuade her to sell for $15,000, but she repeatedly said that she would not take less than $16,000 net. In December 1939 plaintiff again wrote to defendant stating that his “prospect” was Mr. Kay, who refused to pay more than $15,000. In March 1940 plaintiff wrote to her that Mr. Kay would still offer $15,000 and that this would be the last opportunity to make a deal with him unless “you have changed your mind.”

The following April defendant telegraphed to plaintiff that she was preparing to close the deal with another party but would consider an offer' of $15,500 cash, net, and requesting an immediate answer. She received no reply.

In the latter part of March or first part of April, Anthony Z. Clifford called at the office of R. L. Huszagh, another real estate broker working in the same general territory; Huszagh furnished him with a list of four or five farms, with prices, including defendant’s farm; Clifford, after examination, said that he liked this farm and that he would pay $15,000 for it; Huszagh told him he did not think he could get it for this amount, as $16,000 was the lowest offer that had been made on it. Huszagh made a trip to Tennessee where defendant was residing but found that she was an invalid in a hospital; he then negotiated with members of her family, and an attorney representing her from the office of Robert N. Holt, an attorney at this, bar; an agreement was made to sell the property to Clifford for $14,750 net, the purchaser to pay all brokerage commissions; about the middle of April a deed to the property and the purchase money were deposited with the Chicago Title & Trust Company in escrow, and when the sale was completed Huszagh received a check from Clifford for his brokerage commissions.

Clifford was a brother-in-law of Kay and apparently at the trial plaintiff argued that this fact tended to support the claim that the purchaser was Kay and not Clifford. The evidence does not support this claim. Defendant did not know of any such relationship and Huszagh testified that at the time the deal was closed he did not know Kay and that as far as he knew the farm was purchased by Clifford.

Defendant never listed her farm for sale with plaintiff and did not employ Mm. Plaintiff approached defendant through letters, claiming to represent a buyer, but the offer which plaintiff suggested he might obtain was repeatedly declined by defendant. As was aptly said in Watts v. Howard & Calkins, 51 Ill. App. 243, where a broker was employed to sell real estate at a fixed price: “In endeavoring to persuade his principal to take less than the price at which he has authorized a sale, he is not so much serving his employer as a would-be purchaser.”

Pertinent also is the opinion in Morton v. Barney, 140 Ill. App. 333, where a broker approached an owner through letters suggesting possible purchasers to whom he had offered the property; the owner subsequently disposed of the property elsewhere. It was held that it takes two persons to make a contract and the owner was under no obligation to respond to every letter of a real estate broker whom he had not employed. Much the same situation was involved in Wilcox v. Andrews, 150 Ill. App. 27, and Bunn v. Smith, 190 Ill. App. 530, and other cases. In Carlson v. Nathan, 43 Ill. App. 364, the broker was unable to secure an offer which the owner of the property would accept; more than a month thereafter the principals met and were introduced to each other by a banker, and after some time they finally agreed upon a trade. The court held that the broker was not entitled to a commission as Ms effort to procure terms which the owner would accept had failed. In Sheppard v. Cade, 227 Ill. App. 110, two brokers were employed; one of them failed in the negotiations with the prospective purchaser and he abandoned the attempt; the other broker subsequently succeeded, through Ms own efforts, in making a sale to the same person. It was held that the first broker was not entitled to commissions, citing Mechem on Agency, 2242, 2456-2459. And in Watts v. Howard & Calkins, above referred to, where the ultimate purchaser was the same party first introduced by the broker, the court said, ‘ ‘ Surely there must be a period within which, after a party introduced by an agent has declined to purchase, the owner or another broker may treat the negotiations as at an end, and entirely new and independent solicitation begin. Mears v. Stone, 44 Ill. App. 444; Carlson v. Nathan, 43 Ill. App. 364; Tombs v. Alexander, 101 Mass. 255; Earl v. Cummins, 54 Pa. St. 394."

The instant case is much more favorable to defendant, for here the purchaser was another party and not introduced to the owner by plaintiff.

Applying the conclusions in the cases above cited, to the facts before us, we hold that the trial court was in error in entering judgment against defendant, and it is reversed.

Reversed.

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


text:
    People ex rel. 1111 North La Salle Corporation, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 42,124.

      Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed September 9, 1942.
    Urion, Bishop & Sladkey, of Chicago, for appellant; Howard F. Bishop and Robert F. Dewey, both of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellees; James A. Velde and Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

On November 28, 1930, the petitioner had a judgment in condemnation proceedings for $36,000. This judgment was never paid, and petitioner filed this mandamus suit to compel the city to pay this with interest at the rate of 5 per cent per annum from the date it.was entered.

The trial court ordered the judgment paid hut denied the prayer for interest. Petitioner appealed to the Supreme Court, asserting that a constitutional question was involved. The Supreme Court was not of this opinion, and transferred the case to this court. Consequently, although there is some argument as to the constitutionality of section 16 of the Local Improvements Act, ch. 24, par. 715 of the 1939 Ill. Rev. Stat., we shall not comment upon this.

The trial court held that the claim for interest was barred by the five-year statute of 'limitations and, as this petition was filed in November 1940, the limitation period had passed.

Was the claim for interest barred by the five-year statute of limitations 1 This same question was presented in Epling v. Dickson, 170 Ill. 329, which was a proceeding to enforce payment of a judgment rendered in an action to recover damages to property because of the construction of a railroad; it was held that the five-year statute of limitations has no application to a proceeding of his character. In that case, as here, the trial court allowed recovery for the face of the judgment, but refused to allow interest. The Supreme court called attention to section 3 of the Interest Act, which provides that judgments shall draw interest until satisfied, and said: “No exception is made in the statute where a judgment has been rendered as compensation for lands taken or damaged for public use, and in the absence of an exception the statute which controls judgments in other cases must control here. Moreover, it has often been held that a final judgment for the amount found to be due as just compensation will draw interest. Cook v. South Park Comrs., 61 Ill. 115; City of Chicago v. Palmer, 93 id, 125.”

The record shows that the trial court in denying interest to petitioners relied upon an opinion in Cohen v. City of Chicago, in which a petition for rehearing was allowed, and another opinion rendered superseding the first opinion, 377 Ill. 221. However, in this Cohen case, and in every case cited by the defendants, the condemnation judgment had already been paid in full. In Bogden v. Milauckas, 313 Ill. App. 311, the condemnation judgment had been paid, which the property owner accepted and satisfied the judgment, and the court said that the suit for interest commenced eight years later was an independent claim and necessarily must be commenced within the five-year period. The decision referred to Tracey v. Shanley, 311 Ill. App. 529, where it was held that accruing interest is not separated from the judgment, and the statute of limitations does not run against it until the judgment itself is barred by the statute. We have noted all the cases cited in the briefs and find no case holding contrary to the proposition that, where a judgment is unpaid and unsatisfied interest continues until the judgment is paid. Turk v. City of Chicago, 352 Ill. 171; Feldman v. City of Chicago, 363 Ill. 247; Blaine v. City of Chicago, 366 Ill. 341; and many other cases.

We might note that in Garvy v. Wilder, 121 F. (2d) 714, which defendants stress, we find the same situation as in the other cases cited by defendants, namely, that the principal obligation had already been paid and satisfied before the institution of the suit for the recovery of interest.

There is no merit in defendants’ claim that interest which accrued more than five years prior to the institution of the present suit is barred" by the statute of limitations. The cases cited said to support this are not at all in point. If the point were sound, recovery of interest upon a note or other written instrument made payable more than five years after date would be limited to the interest which accrued in the last five years, and this even though the principal obligation had not matured or had not been paid. It would also mean that all holders of unpaid judgments must every five years bring a new and separate suit to protect their right to recover interest on their judgments. This cannot be the law.

The portion of the judgment order directing the payment of the judgment was proper. That part of the order denying interest is erroneous, and is reversed. The cause is remanded with directions that the writ of mandamus issue, requiring defendants to pay the principal amount of the judgment together with interest thereon at 5 per cent per annum from the date of the rendition of the judgment to the date of payment.

Reversed and remanded with directions.

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


author: Mr. Justice O’Connor

text:
    James Blackstone Memorial Library Association et al., Appellees, v. Alton Railroad Company, Appellant.
    Gen. Nos. 42,081, 42,082.
    Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed September 9, 1942.
    Rehearing denied September 23, 1942.
    Silas H. Strawn and Frank H. Towner, both of Chicago, for appellant.
    Follansbee, Shorey & Schupp, of Chicago, and Perkins, Malone & Washburn, of New York, N. Y., for appellees; John E. Gavin and Clyde E. Shorey, both of Chicago, and Watson Washburn, of New York, N. Y., of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Seven cases were brought in the Circuit court of Cook county by plaintiffs who are holders of preferred stock of a railroad company, the predecessor of defendant, to recover dividends due and unpaid on such stock. The seven cases were tried as one before the court without a jury, and June 30, 1941, there were findings and judgments for plaintiffs in each case. In four of them the judgments totalled $14,726.34 and in the other three $38,420.18. Defendant, to reverse these judgments, prosecutes two appeals to this court where they have been consolidated and submitted on one record and one set of abstracts and briefs.

The record discloses that March 15, 1878, the Kansas City, St. Louis & Chicago Railroad Company, entered into an agreement with The Chicago and Alton Railroad Company, which was modified by a supplemental agreement dated May 29, 1879, whereby the Kansas City Company, under the agreement of 1878 leased in perpetuity its line of railroad extending from Mexico, Missouri, to Kansas City, Missouri, a distance of about 160 miles. The railroad was thereafter to be operated by the lessee and May 29, 1879, the same two companies, together with the United States Trust Company as third party, entered into a supplemental agreement which provided for the issuance by the Kansas City Company, of $1,750,000 of preferred stock; that the lessee ‘ ‘ covenants and agrees to and with the said party of the third part that it the said party of the second part, will, on the first days of February, May, August, and November in each year hereafter, at the office or agency of the said party of the second part, in the City of New York, pay to the holders of said preferred stock of $1,750,000 a quarterly dividend of 1%% for each calendar year ending December 31, free of all United States taxes thereon.” The Chicago and Alton Railroad Company under the lease as amended, operated the properties of the Kansas City Company to March 8,1906, on which date it and the Chicago and Alton Railway Company were consolidated as the Chicago and Alton Railroad Company. Thereafter the consolidated company assumed the agreements of 1878 and 1879 and operated the Kansas City Company’s property from March 8, 1906 to August 30, 1922, making all payments required by the agreements. August 30, 1922, receivers were appointed for the consolidated company in a proceeding brought in the United States District Court in Chicago, in a case entitled, “The Texas Company v. The Chicago and Alton Railroad Company, et al.” which apparently was in the nature of a creditor’s bill. Some time afterward, foreclosure proceedings were made a part of the Texas Company case. The receivers of the consolidated company from the date of their appointment in 1922, operated the properties of the Kansas City Company until July 18,1931, when all of the railways and properties of the consolidated company were conveyed to defendant, The Alton Railroad Company, by deed, pursuant to a foreclosure decree entered July 6, 1929, in the proceeding in the Federal Court, the defendant being the assignee of the purchasers of the properties at the foreclosure sale. The properties conveyed included the agreements of 1878 and 1879, together with the leasehold estate of the consolidated company in the properties of the Kansas City Company. From August 30, 1922 to July 18,1931, the receivers of the consolidated company paid all taxes, dividends, and other expenses necessary to perform the obligations of the agreements of 1878 as modified by the agreement of 1879. After the properties were conveyed to defendant, July 18, 1931, it continued to pay all obligations, in-eluding the dividends specified in the supplemental agreement of 1879 until the dividends which became due during 1939 and on February 1 and May 1, 1940. It is to recover these dividends that the instant cases were brought.

While these suits were pending in the Circuit court, defendant Alton Railroad Company, on June 11, 1940, filed its petition in the Federal Court proceeding praying that the court make effective, by proper order, the railroad’s written election not to assume the agreements of 1878 and 1879 filed the day before with the clerk of the Federal Court. Motion to strike the petition for insufficiency was made by the Kansas City Company and certain stockholders of that company. The motion was sustained and the petition dismissed December 26, 1940. Texas Co. v. Chicago & Alton R. Co., 36 F. Supp. 62. An appeal was taken to the United States Circuit Court of Appeals, where the decree of the District Court was reversed February 12, 1942, and the cause remanded with directions to hear the case on its merits, 126 F. (2d) 83. Pending the appeal in the Circuit court of Appeals, the cases at bar were tried and judgments in plaintiffs’ favor entered June 30, 1941.

The question whether the defendant railroad company had the right to elect on June 10, 1940, not to assume the agreement of 1878 as modified May 29, 1879, was strenuously contested in the United States District Court, the United States Circuit Court of Appeals, on the trial in the Circuit court of Cook county, and in this court.

Counsel for defendant, railroad company, contend it had the right to elect not to assume the agreement as modified, (1) by virtue of the decree entered in the Federal Court July 6,1929, in the receivership proceeding ; (2) by the provision of the deed conveying the property to it, July 18,1931, and (3) by a number of orders entered by the United States District Court extending the time within which such election might be made. While on the other side, counsel for plaintiffs contend that what the receivers did and what the defendant railroad company did after the properties were conveyed to it, conclusively show that the agreement of 1878, as modified, was assumed and is binding on the defendant railroad company.

The decree of foreclosure entered in the receivership proceeding provides that “Any purchaser of the property described in this decree, or of any parcel thereof, and whether or not he has exercised or used any rights thereunder, shall, subject to the provisions hereinafter specified, within one year after the delivery of the deed or deeds or other instrument or instruments of conveyance or.assignment and transfer by the Special Master of the property purchased by him, or within such additional period as the Court may hereafter by its order or decree permit, have the right to elect not to assume or adopt any lease, traffic, trackage, terminal, crossing or operating agreement, or other contract, not fully performed, made or assumed by the Consolidated Company, or any predecessor company (but not any contract, lease or agreement entered into, made, assumed or adopted by the Receivers which does not expressly reserve to the purchaser the right to elect not to assume or adopt such contract, lease or agreement), which is a part of the property embraced in such deed or deeds or other instrument or instruments of conveyance or assignment and transfer. Such election shall be made by instrument in writing, signed by the said purchaser and shall contain a general description of the contracts or leases which he elects not to assume or adopt, and shall be filed with the Clerk of this Court within the aforesaid period. No user, of rights prior to the expiration of said period shall be deemed to conclude the Purchaser in respect of snch election, and upon the filing of snch election said Purchaser shall be deemed not to have assumed or adopted the said contracts or leases.”

The special master’s report of sale, dated December 27, 1930, recites the property he sold which includes the lease of March 15,1878, as modified May 29, 1879; the petition filed by the defendant, Alton Railroad Company, as assignee of the purchasers at the sale praying for a confirmation of the sale and the delivery of a deed, the deed to be in the form attached to the decree, but not to be delivered until the Interstate Commerce Commission had approved the acquisition and authorized the operation of the railroad by The Alton Railroad Company. The report further recites that the form of the deed provides that the purchase of the properties and acceptance of the deed by the grantee should not be construed as an election to accept any lease, etc., quoting from the provision of the final decree hereinabove referred to. A decree was entered approving the master’s report of sale and approving the form, of the deed which provided that its acceptance by the grantee “shall not be construed as an election to accept any contract, lease, or agreement sold as part of the property offered pursuant to the Final Decrees . . . and that nothing in this Indenture contained shall be construed to constitute an assumption, adoption, or ratification by the grantee of any such contract, lease, or agreement; but the grantee, its successors and assigns shall, within one year after the date of the delivery of this Indenture, or within such additional period as the Court may hereafter by its order or decree permit, have the right to elect not to assume or adopt any lease, . . . or other contract not fully performed” etc. The .deed also prescribes the method of exercising the right of election as that prescribed in the final decree and expressly provides, “No user of rights prior to the expiration of such period shall be deemed to conclude the grantee in respect of such election. ’ ’

The evidence further shows that the defendant railroad procured from the Interstate Commerce Commission the right to acquire and operate the railroad (see Alton Railroad Company Acquisition and Stock Issue, 175 I. C. C. 301). The records before that body are in the evidence before us.

We do not stop to analyze the evidence in this respect but think it sufficient to say we are of opinion that the report made to the Interstate Commerce Commission does not show that the railroad company assumed the agreement of 1878 as modified in 1879' but is to the effect that the Interstate Commerce Commission authorized the railroad to assume the agreement as modified, if it desired to do so.

The United States District Court held that the pleadings, on which the matter was disposed of by that court, failed to show that the lease in question was shown to have been assumed by the proceedings had before the Interstate Commerce Commission. But the court further held that the operation of the railroad by the receivers for about 9 years, established the adoption of the lease by the receivers and that the purchaser from the receivers who had operated for another 9 years had no right to disaffirm the lease. [36 F. Supp. 62.] As stated, the Circuit court of Appeals reversed the decree of the District court in an exhaustive opinion and held that what had been done by the receivers, and by the railroad company afterward did not constitute the assumption of the agreements because of the decrees and the orders of the United States District Court in extending the time within which non-assumption might be exercised.

We feel that we are bound by the decision of the Circuit court of Appeals. Cincinnati, Indianapolis & Western R. Co. v. Indianapolis Union Ry. Co., 270 U. S. 107. The United States courts had jurisdiction before the instant actions were brought and although the case was disposed of by the Federal Courts on the pleadings, we think the evidence offered in the Circuit court of Cook county, which is in the record before us, does not change the situation. The United States Circuit Court of Appeals having decided that defendant had a right on June 10, 1940 to elect not to assume the two agreements, and, since no step was taken to have this decision reversed by the Supreme Court of the United States, we think this question ought not be relitigated. Toucey v. New York Life Ins. Co., 314 U. S. 118. “It is just as important that there should be a place to end as that there should be a place to begin litigation.” Stoll v. Gottlieb, 305 U. S. 165.

Counsel for the defendant further say that “the only question for decision is the date as of which defendant’s election became effective. The dividends sued for herein are claimed to have become due from defendant during 1939 and on February 1 and May 1,' 1940, prior to June 10,1940, the date on which defendant filed its election not to assume the 1878 and the 1879 agreements. But under the law, defendant’s election was effective as of July 18, 1931, the date on which it took over the properties of the consolidated company. Its operation of the properties of the Kansas City Company since July 18, 1931, was provisional only, and its only obligation growing out of such operation was to turn over to the Kansas City Company the net earnings resulting from such operation. In other words, defendant never did have any obligations under the 1878 and 1879 agreements.” Whether this is technically so or not it is unnecessary for us to decide because we are of opinion that, by the conduct of the parties in paying the 6 per cent dividend on the preferred stock as rent in quarterly dividends for a period of about 18 years, viz., by the receivers, from August 30, 1922 to July 18, 1931, and from the latter date by the defendant railroad company to May 1, 1940 and made no complaint until June 10, 1940, when it filed its notice not to assume, in the clerk’s office of the United States District Court in the receivership proceeding, defendant cannot now be heard to say that it can now go back to 1931 and ask for an accounting to ascertain whether it has paid too little or too much. Defendant having taken the position, for a period of about 9 years, that it was liable for the dividends, and not having elected not to assume the agreements of 1878 and 1879 until after the amounts claimed by plaintiffs had accrued, will not now be permitted to stultify itself and say it was not liable for the amounts claimed.

Defendant further contends that the evidence does not show plaintiffs were the holders of the stock on the days the dividends accrued and for which suit is brought, and that the proof does not show that plaintiffs “were even record holders” of the stock and further, that “There can be no recovery in any event for any amount in connection with dividends claimed to have been due on February 1 and May 1, 1939.” We think none of these contentions can be sustained. Plaintiffs’ evidence tended to show, by the stock ledger, plaintiffs were the holders of the stock involved in the suits. And defendant’s counsel say “that all dividends actually paid on this stock by defendant were paid to the stockholders of record of the Kansas City Companies.” We think this made a prima facie case.

As to. the dividends claimed to have been due February 1, and May 1, 1939, defendant contends “The fact is that every plaintiff who sued in these cases for dividends alleged to have become due on February 1 and May 1, 1939, was paid the full amount sued for on January 5, 1940'. This payment was made between the date on which the three suits specified above were started and June 30, 1941, the date upon which the judgments were entered. ’ ’ In reply plaintiffs say that they “did not release their right to interest. Defendant did not show that the payments made January 7, 1940, amounting to $3 per share were tendered in full payment or that acceptance was conditioned upon release of accrued interest and costs.” The judgments entered in these cases were for interest only, the principal having been paid. We think plaintiffs were entitled to the interest.

For the reasons stated, the judgments of the Circuit court of Cook county are affirmed.

Judgments affirmed.

Hatchett, P. J., and HcSubely, J., concur.