text:
    Lillian Mae Hasel, by H. E. Vogelsinger, her next friend, appellant, v. Estate of A. B. Claudon, Jr., deceased, appellee.
    Gen. No. 8,111.
    Opinion filed May 17, 1930.
    E. A. Simmons, for appellant. Tuesburg & Armstrong, Adsit, Thompson & Herr and P. A. Gibbons, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Jones

license: Public Domain

text:
    Paul R. Goddard, appellee, v. James W. Parker, appellant.
    Gen. No. 8,127.
    Opinion filed May 17, 1930.
    Richard H. Radley and Richard H. Radley, Jr., for appellant. Clarence W. Heyl, for appellee; Heyl & Heyl, of counsel.
   Mr. Justice Jones

delivered the opinion of the court..


text:
    L. S. Mayer, trading as The Cannon Oiler Company, appellee, v. Erle E. Gluba, appellant.
    Gen. No. 8,132.
    Opinion filed May 15, 1930.
    Everett L. Werts, James Allen and Hartzell, Cavanagh & Martin, for appellant. Walter L. Mannon, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Parker Truck Company, appellee, v. Estate of Jacobus Koek, deceased, appellant.
    Gen. No. 8,139.
    Opinion filed May 17, 1930.
    Thomas J. Peden, Paul MacGuffin and Willis A. Overholser, for appellant. George A. Affeldt and Runyard & Behanna, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    William J. Reineke, appellee, v. Max Benthien, appellant.
    Gen. No. 8,156.
    Opinion filed May 17, 1930.
    Frank M. Ryan, for appellant. Welsh & Welsh, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Presiding Justice Boggs

text:
    Armer E. Johnson, appellant, v. Frank G. Hogland, appellee.
    Gen. No. 8,187.
    Opinion filed May 22, 1930.
    Rehearing denied June 24, 1930.
    Lathrop, Lathrop, Brown & Lathrop, for appellant. Hall & Dusher, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Eldredge

text:
    Third District.
    The People of the State of Illinois ex rel. Iva Ruth Mahr, appellee, v. Frank A’Hearn, appellant.
    Gen. No. 8,375.
    Opinion filed April 22, 1930.
    W. S. Jewell and Glenn Ratcliff, for appellant. G. Ray Senift, State’s Attorney and Marshall U. Faw, Assistant State’s Attorney, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    The State of Illinois, appellee, v. Louis DePape and Louise DePape, appellants.
    Gen. No. 8,378.
    Opinion filed April 22, 1930.
    L. E. Stone, for appellants. Harry B. Grundy, State’s Attorney, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Luther St. John, plaintiff in error.
    Gen. No. 8,396.
    Opinion filed April 22, 1930.
    Raymond G. Real, for plaintiff in error. C. M. Heinlein, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Thomas Craft, plaintiff in error.
    Gen. No. 8,399.
    Opinion filed April 22, 1930.
    T. N. Gofer, for plaintiff in error. C. M. Heinlein, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    In re Estate of Pleasant I. Ogden, alleged to be insane.
    Gen. No. 8,412.

      Opinion filed April 22, 1930.
    Lewman & Carter, for appellant. Graham & Dysert, for appellees.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Phil Stewart & Company, appellee, v. E. I. DuPont DeNemours & Company, appellant.
    Gen. No. 8,325.
    Opinion filed April 22, 1930.
    Graham & Graham, for appellant. Doyle, Sampson & Giffin, Terry Lindner and Alfred F. Newkirk, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Amanda J. Edenburn, executrix of the last will and testament of William T. Edenburn, deceased, appellee, v. M. S. Campbell, appellant.
    Gen. No. 8,402.
    Opinion filed April 22, 1930.
    Jones, McIntire & Jones, for appellant. Graham & Dysert, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    Thomas Tolbert, appellant, v. Minnie Snyder et al., appellees.
    Gen. No. 8,397.
    Opinion filed April 22, 1930.
    Ira J. Covey and Edwin L. Covey, for appellant. William A. Potts, for appellee; Robert H. Allison, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Capitola Wells et al., plaintiffs in error, v. Springfield Life Insurance Company, defendant in error.
    Gen. No. 8,410.
    Opinion filed April 22, 1930.
    Omer Poos and Dryer & Brown, for plaintiffs in error. Hill & Bullington and H. E. Fullenwider, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    The Federal Land Bank of St. Louis, Appellant, v. Mary Kenshalo et al., Appellees.

      Heard in this court at the February term, 1930.
    Opinion filed May, 21, 1930.
    Theo. E. Kircher, for appellant.
    Creighton & Thomas, for certain appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On July 23, 1922, Benoni Kenshalo applied to appellant for á loan of $7,000 on his farm of 206 acres in Wayne county. He described the land as the north half (N%) of the northeast quarter (NE%) of section two, township 3 south, range 7 east of the 3rd p. m.; and the south half of the southeast quarter of section 35, township 2 south, range 7 east of the 3rd p. m., and the southwest quarter of the southwest quarter of section 36, township 2 south, range 7 east of the 3rd p. m. containing 206 acres, more or less. In another part of the application he stated that 186 acres were cultivated and that there were 20 acres of timber. In another portion he made this statement: — “Value of land to be mortgaged, 206 acres, at $70 per acre—$14,420.”. He further stated that for the last crop, season there were 11 acres of corn, 40 acres of oats, 24 acres of cow peas, 22 acres of hay, 20 acres of timber and 89 acres of pasture, making a total of 206 acres. He also stated: “186 acres are now in cultivation, 206 acres can be profitably cultivated.” He also stated that he acquired this 206 acres in 1909 from Nancy Murphy.

All of this land lies in one body except that the northeast quarter of section two is separated from the other land by a public highway. This northeast quarter of section two is a fractional quarter containing 86 acres, and was owned by the applicant at the time he applied for the loan aforesaid. "When the appraisers went out to appraise the land the applicant was working on the farm and stood on his machine and pointed out the land, telling them that the farm contained 206 acres of land.

It clearly appears that the applicant intended to give appellant a mortgage on the entire farm of 206 acres, but in his application and in the mortgage the land in section two was described as the north half of the northeast quarter, when it should have been described as the northeast quarter of section two in order to comprise the 206 acres of land which the applicant intended to mortgage.

Appellant filed its bill to reform the mortgage in that regard and to foreclose the same. At that time the mortgagor had died and his widow and children and the First National Bank of Fairfield, Illinois, were made defendants. The First National Bank filed an answer denying that a mistake was made in the description of the land mortgaged and averred that no mistake was made and that the lands were correctly described in the mortgage. It also averred that on March 21,1929, it recovered a judgment in the probate court of Wayne county in the sum of $2,872.05, which judgment still remains due and unpaid. The court held and decreed that the First National Bank had no notice that appellant had or claimed any interest by reason of its mortgage in any lands of the deceased other than the lands mentioned and described in the mortgage, and that appellant was not entitled to have the mortgage corrected and reformed. The decree awarded foreclosure against the real estate as described in the mortgage, and appellant appealed to this court.

The First National Bank contends that by reason of the fact that the northeast quarter of section two is a fractional quarter containing but 86 acres, the description in the mortgage did not include the south 80 acres thereof. In other words the bank contends that the mortgage, as written, only includes 126 acres instead of 206 acres. The judgment held by the bank is a judgment entered by the probate court for the allowance of the bank’s claim against the estate of the mortgagor. The bank contends that because it holds this judgment against the mortgagor, it is protected by section 30 of the Conveyance Act, Cahill’s St. ch. 30, ¶ 31, and that the mortgage cannot be reformed as against it. This contention cannot be sustained; Noe v. Moutray, 170 Ill. 169.

Even if the First National Bank had procured a judgment against the mortgagor, instead of against his estate, appellant would be entitled to have the mortgage reformed. The equity of a mortgagee in a tract of land intended to be mortgaged to him, but which is misdescribed, is superior to the lien of a general judgment against the mortgagor, rendered before the mistake in the description had been corrected; Yarnell v. Brown, 170 Ill. 362. The latest utterance of the Supreme Court is to the effect that the lien of an ordinary judgment is general and extends only to the property right which the debtor owns in the premises, subject to the equities in it at the time of the judgment. It is limited to the actual interest of the judgment debtor; Hooper v. Haas, 332 Ill. 561; Sturdyvin v. Ward, 336 Ill. 594.

The First National Bank contends that the mistake in the mortgage is the result of the negligence of appellant and that a court of equity will not relieve appellant from the effect of its own negligence. No such defense was set up in the answer filed by said bank. A defendant cannot avail himself of any matter of defense not stated in his answer, even though it appears in the evidence; Millard v. Millard, 221 Ill. 86. We are satisfied, however, that the cases relied upon by the said bank in support of its contention in that regard are not applicable to a case of this kind. Negligence, in order to bar reformation of a deed in case of a mutual mistake as to the land conveyed, must be so gross as to amount to the violation of a positive legal duty, and the parties against whom the reformation is sought to be enforced, must have suffered a loss because of the delay in seeking to reform the deed; Shelly v. Ersch, 305 Ill. 126.

It is also contended that appellant was guilty of laches. The original bill filed in this case was an ordinary bill for foreclosure and did not ask for reformation. Shortly after the filing of the original bill appellant obtained leave to file an amended bill. The amended bill sets out that there was a mutual mistake in the description of the land in section two, as hereinabove mentioned, and that the mistake was not discovered until a few days prior to the filing of the amended bill. It is an inherent element of laches that the parties sought to be charged therefor have knowledge of the facts, and it is only when the delay is accompanied by some other element rendering it inequitable to permit the owner to assert his title that laches will be held to bar his rights before the statute of limitations has run; Peabody v. Burri, 255 Ill. 592.

Under the law and the evidence we are satisfied that the court erred in holding that appellant was not entitled to have its mortgage reformed so as to include all of the land which the mortgagor intended to mortgage. The decree is reversed and the cause remanded with directions to reform the mortgage as prayed in the bill and to foreclose the same as reformed.

Reversed and remanded with directions.


text:
    Bituminous Casualty Corporation, Appellee, v. Marion County Coal Company, Appellant.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    June C. Smith, for appellant.
    Wham & Wham, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee issued a policy of insurance insuring appellant against liability to its employees arising under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq. The policy was to remain in force from October 1, 1928 until canceled. By its terms it could be canceled at any time by either party giving a written notice stating when, not less than 10 days thereafter, cancellation should be effective. The effective date of cancellation was made the end of the policy period. It further provided that if appellant requested cancellation the earned premium should be computed and adjusted at short rates in accordance with a table printed on the policy. Appellant gave notice of cancellation and the effective date of such cancellation, as well as the end of the policy period, was 45 days after October 1, 1928.

Appellee sued to recover the earned premium for the 45 days computed in accordance with the short rate table aforesaid. Upon a trial before the court, without a jury, appellee recovered a judgment for $2,015.13. Appellant’s sole contention is that the short rate table does not and cannot apply to the policy in question because the policy was not written for a definite term, but was to continue in force until canceled.

The premium appellant was required to pay was based upon the annual remuneration appellant paid to all of its employees. At the time the policy was issued the estimated advance premium was computed upon such remuneration and same was figured at $2,500, which sum was paid by appellant upon receipt of the policy. Appellant agreed that on or before the 15th of. each month it would render a statement to appellee of the gross payroll expenditure for labor, etc., and that such report would be accompanied by a check for the premium on such payroll expenditure, based on the rates as stated in the policy. Appellant also agreed that at the end of the policy period the actual amount of the remuneration earn'ed by its employees during such period should be exhibited to appellee and the earned premium adjusted at the rates and under the conditions specified in the policy; that if the earned premium, thus computed, is greater than the advanced premium paid, appellant would immediately pay the additional amount to appellee; if less, appellee would return to appellant the unearned portion, etc.

From the terms of the policy it clearly appears that the advanced premium and the monthly payments to be made by appellant were subject to adjustment at the end of the policy period. Appellant’s notice of cancellation definitely fixed the policy period at 45 days. Appellant agreed that in such case the unearned premium should be computed and adjusted in accordance with the short rate table. It concedes that the judgment is correct if the short rate table applies to the policy in question.

We cannot agree with the contention that the policy is so ambiguous that appellant should be relieved from its agreement to settle the unearned premium in accordance with the short rate table. Giving the insurance contract a fair and reasonable construction we are satisfied that the trial court reached a proper conclusion. No sufficient reason has been shown to warrant the court in relieving appellant of its liability under the contract.

Judgment is affirmed.

Affirmed,


text:
    St. Louis Union Trust Company, Plaintiff in Error, v. Wabash, Chester & Western Railroad Company et al., Defendants in Error.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    George B. Gillespie and Gillespie, Burke & Gillespie, for plaintiff in error.
    Williams & Lewis, for defendants in error; Carter Harrison, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error had a mortgage on the property and income of the railroad company, and on January 3, 1924, filed its bill to foreclose and for the appointment of a receiver. On July 6, 1923, the railroad company was unable to meet its payroll. In order to procure funds for that purpose it wrote to the Ham National Bank as follows:—“In consideration of your extending this Company credit to the extent of $5,000, we will pledge as security therefor, freight collections of the Mt. Vernon station, which collections average about $25,000 per month. This security to continue until the credit aforesaid is paid by us in full.” At that time the bank loaned the railroad company $3,000 for which a note was taken. That note has been fully paid and is not in controversy.

To secure another loan of $2,500, the railroad company on July 11, 1923, gave the bank a written instrument certifying that there was then due the company from various concerns at Mt. Vernon, IIlinois, the following amounts for services in nature of transportation which amounts were subject to immediate payment: Mt. Vernon Car Mfg. Co., $2,700, Lumber Companies and miscellaneous firms $4,300, making a total of $7,000; that upon collection of the above amounts, the proceeds would be applied to extinguish indebtedness at the Ham National Bank, as follows: One note dated July 6, 1923, $3,000, one note dated July 11,1923, $2,500, total $5,500. The bank made the loan of $2,500 and took a note therefor.

Several months later a receiver was appointed in. the foreclosure proceeding who collected $2,210 from the accounts mentioned in the instrument of July 11, 1923. Ham National Bank filed a petition asking that the receiver be ordered to pay said' sum to it. The prayer of the petition was granted and the decree entered directing the receiver to pay said sum to the bank.

The fact that the income of the railroad company . was covered by the mortgage did not entitle plaintiff in error to.income that was due and owing prior to the appointment of the receiver. It is a well-settled rule of law that a mortgagor is entitled to the rents and income from the mortgaged property for his own use until a receiver is actually appointed. Mississippi Valley & Western Ry. Co. v. U. S. Express Co., 81 Ill. 534; Rohrer v. Deatherage, 336 Ill. 450. That being true, plaintiff in error had no right, title or interest in the accounts from which the receiver collected the $2,210 in question, and is in no position to assign error in regard to the court’s ruling as to the disposition of that fund. The fund represented income that was due and owing- to the railroad company long before the receiver was appointed.

The execution and delivery of the instrument of July 11, 1923, by the railroad company set aside certain accounts then due and owing to that company to secure the payment of the $2,500 note to the bank. By the execution and delivery of that instrument the railroad company thereby made itself a trustee to hold and collect said accounts and apply the proceeds on said note. Marble v. Marble, 304 Ill. 229; Hamer v. Sidway, 124 N. Y. 538; Day v. Roth, 18 N. Y. 448. The fund in question was a trust fund to which the bank was entitled and the court did not err in its ruling. The decree is affirmed.

Affirmed.


text:
    John Gills, Appellee, v. The New York, Chicago & St. Louis Railroad Company, Appellant.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Pope & Driemeyer, for appellant.
    Harry Faulkner, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In a crossing collision, appellee received personal injuries and his car was demolished. In the suit brought to recover damages, appellant, at the close of appellee’s evidence, moved the court for a directed verdict. The motion was denied and appellant offered no evidence. Appellee recovered a verdict and judgment for $1,200.

Appellant makes no contention that it was not guilty of negligence. The sole question presented is whether the court erred in refusing to direct a verdict for appellant. Five railroad tracks cross the public highway south of Beuhler station. The highway runs north and south and the several tracks run in an easterly and westerly direction across the highway. Appellee lived at a point north of the tracks. The most southerly track is the main track of appellant and it has a passing track a few feet north of the main track. Appellee was returning to his home from Granite City on the evening of January 31, 1929, at about the hour of 4 p. m. As he approached appellant’s main line from the south he stopped at the mail box some distance south of that track. After leaving the mail box he saw a freight train, consisting of 30 to 50 cars, coming from the west and observed it as it passed over the crossing. He was about 30 feet from appellant’s main track where he had stopped until the train passed. After the freight train had cleared the crossing he says he looked in both directions to see if any other train was coming and that he saw none and started north and about the time he was on appellant’s main track he saw a passenger train coming from the east on that track and if" was then about 25 feet away. He could not get off the track and the collision occurred. There was no obstruction to his view of a train coming from the east and he testified that when he looked he did not see the train because of the background of the other train and the smoke from the locomotive of that train. There is evidence to the effect that the passenger train was running 30 or 35 miles an hour and that no bell or whistle was sounded for the crossing.

A hack driver was killed in a crossing collision under similar circumstances. An electric railroad had double tracks running east and west across a north and south highway and about 75 feet north of the north track a steam railroad had a parallel track. The hack driver approached the electric line from the south and observed a freight train going east on the steam railroad and stopped his carriage about 30 feet south of the electric railroad and waited for the freight train to pass over the crossing. After it had passed he started north and when upon the track of the electric railroad he saw a car coming from the east upon that road and urged his horses forward but was unable to get across. A collision occurred and he lost his life. In that case there was nothing to obstruct the view of the hack driver of a train coming from the east. A car from the east was visible for a distance of about a mile. The court said that if he had looked to the east he could have seen the car approaching and that there was no evidence that he did look; that one witness testified that he did not observe the deceased looking to the east or looking at anything while the freight train was passing except his horses; that the engineer of the freight train said he did not see the deceased look at anything except the freight train. In that state of the proof, it was insisted that the trial court erred in refusing to direct a verdict for the defendant because the evidence showed that the deceased was not in the exercise of due care and caution for his own safety and that he was guilty of contributory negligence. The court held, under the facts above stated, that the question of contributory negligence was a question of fact for the jury and the judgment was affirmed; Gibbons v. Aurora, E. & C. R. Co., 263 Ill. 266. It is true that in the Gibbons case the deceased was driving a team of horses, while in the case at bar appellee was driving an automobile. Aside from that fact we see no material difference between the facts and circumstances of the two cases. In that case there was no evidence that the horses were in any way excited so as to require attention from the deceased. When he stopped to let the freight train pass he was about 110 feet from that train as it passed over the crossing. If we were to undertake to distinguish the present case from the Gibbons case it seems to us it would be necessarily a distinction without a difference. There is no doubt that under the circumstances in the two cases the passing of the freight trains was such as to divert or distract the attention of the drivers. The noise and smoke from the passing freight train and the failure of the passenger train to sound a warning for the crossing should all be taken into consideration. When all of the facts and circumstances are considered we would not be warranted in holding as a matter of law that contributory negligence on the part of appellee was proven. We think the evidence was sufficient to make it a question of fact for the jury. It is not contended that the evidence on the question of contributory negligence was insufficient to support the verdict. Appellant’s sole contention is that appellee was guilty of contributory negligence as a matter of law and that the court erred in refusing to direct a verdict. We cannot agree with that contention and the judgment is affirmed.

Affirmed.


text:
    David E. Keefe, Appellant, v. Servias Sondag, Jr., Appellee.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Philip G. Listeman and Harold J. Bandy, for appellant.
    Maurice V. Joyce, for appellee.
   Mr. Presiding Justice Barry

Appellee sued appellant to recover for the breach of a covenant against incumbrances contained in a warranty deed. In that action appellant filed certain pleas to which appellee demurred and the demurrer was overruled. Appellee elected to stand by his demurrer and the suit was dismissed at his costs. On appeal to this court we held-that the pleas presented no defense to the action and the judgment was reversed; Sondag v. Keefe, 251 Ill. App. 378.

After the cause was redocketed in the trial court, Mr. Keefe filed a bill in equity to enjoin the prosecution of the action at law. His bill contains substantially the same averments as were in the pleas which were held insufficient to defeat appellee’s cause of action. Upon the filing of the bill- appellant procured an injunction and appellee entered a motion to dissolve the same for want of equity on the face of the bill. The motion was allowed and appellee then filed a suggestion of damages and evidence was taken in open court on the part of appellee. Appellant offered no evidence. The court found that appellee was entitled to an allowance of $150 for his solicitor’s fees in procuring the dissolution of the injunction. A decree was rendered dissolving the injunction and awarding appellee the damages aforesaid. On motion of appellee the court then dismissed the bill for want of equity.

The bill does not state a cause of action. It does not show that appellant has any defense whatever to the action, the prosecution of which was temporarily enjoined. Appellee was entitled to a reasonable solicitor’s fee in procuring the dissolution of the injunction; Marks v. Columbia Yacht Club, 219 Ill. 417. The undisputed evidence in the record is that $150 would be a usual and customary fee for the services rendered in that regard. Appellant did not see fit to offer any evidence to the contrary and is in no position to complain. No reversible error has been pointed out and the decree is affirmed.

Affirmed.


text:
    Hattie Lawler, Plaintiff in Error, v. Charles Schilling et al., Defendants in Error.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Rehearing denied June 23, 1930.
    Robert Ferdinand Tunnell, for plaintiff in error.
    No appearance for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This is said to be the same case that was heard on a former appeal, Lawler v. Schilling, 249 Ill. App. 290. At that time the only question presented for our consideration was the sufficiency of a plea of former adjudication. We held the plea insufficient and remanded the cause, generally, for further proceedings.

When the cause was redocketed in the trial court, counsel for plaintiff in error moved the court to enter a final decree, but the court declined to do so and granted defendants in error leave to plead. Plaintiff, in error then filed a motion to strike the pleas from the files and her motion was denied. On January 14,1930, plaintiff in error was ruled to reply to the pleas but failed to do so and the bill was dimissed for want of equity at the costs of plaintiff in error.

It is argued that the court erred in permitting defendants in error to file their pleas. The former decree was reversed and the cause remanded, generally, for a new trial, and the court had ample power and authority to permit defendants in error to file additional pleas; Pyatt v. Riley, 265 Ill. 324. It.follows that the court did not err in overruling the motion to strike the pleas from the files. It is also argued that the court erred in deciding the issues in favor of defendants in error and in entering the decree. The record shows that plaintiff in error declined to join issue on the pleas and that thereupon the court dismissed the bill for want of equity. In so doing the court committed no error.

The record in the case at bar does not show that plaintiff in error filed a bill for foreclosure or for any other purpose. No bill of any kind is set forth in the record. One of the pleas filed by defendants in error was a plea of laches or limitations. So far as the record shows that plea may have presented a full and complete defense. There is no showing that plaintiff in error attempted, by amending her bill, to avoid the question of laches. Before we can say that the court erred in dismissing the bill it was incumbent upon plaintiff in error to show that the court did err in that regard. In the state of the record the decree must be and is affirmed.

Affirmed.


text:
    In re Estate of Iva Schwaebel (George T. Schwaebel, Appellant.)
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Turner & Holder, for appellant.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This is an appeal from an order admitting to probate the alleged will of Iva Sehwaebel. There were two subscribing witnesses, neither of whom testified that they believed the testatrix was of sound mind and memory at the time of the execution of the alleged will. Under the statute the attesting witnesses must declare on oath that they believed the testatrix was of sound mind and memory when the will was executed or acknowledged and in the absence of such proof the will should be denied probate; Thornton v. Herndon, 314 Ill. 360; Martin v. Martin, 334 Ill. 115-131. In the state of the proof the court erred in admitting the will to probate. The order is reversed and the cause remanded with directions to the circuit court to enter an order denying the probate of the alleged will.

Reversed and remanded with directions.


text:
    J. L. Edwards et al., Appellees, v. American Mutual Benefit Association, Appellant.
    Heard in this court at the October term, 1929.
    Opinion filed May 21, 1930.
    Leon A. Colp and Stone & Fowler, for appellant.
    William H. Warder, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On June 1, 1922, the American Mutual Union issued a benefit certificate for $1,000 to Raleigh Edwards in which appellees were named as beneficiaries. Insured died October 16, 1927, and appellant paid appellees $420 on their claim. This suit was brought to recover the balance, a jury was waived and the court found the issues in favor of appellee and rendered judgment for $580.

Appellant contends that it is not liable because it never issued the certificate. The American Mutual Union was organized under section 29 of the General Corporation Act of 1872, Cahill’s St. ch. 32, ¶ 159. In 1927 that statute was so amended that the insurer could only retain its corporate existence for six months after July, 1927, and for the sole purpose of winding up its business or reincorporating under some act, the enforcement of which comes within the jurisdiction of the Department of Trade and Commerce.

In 1927 the legislature passed another act for the incorporation of mutual benefit associations on the assessment plan, intended to benefit the widows, orphans, heirs and devisees of deceased members, etc., Cahill’s St. ch. 73, ¶ 435 (1). Section 15 of that act provides that any existing domestic corporation transacting business under section 29 of the Corporation Act of 1872, may reincorpórate under the new act of 1927 by filing a declaration with the director of Trade and Commerce of its desire so to do.

The directors of the American Mutual Union filed their declaration, under section 15 of the act of 1927, with the director of Trade and Commerce expressing their desire to reincorporate under the name “ American Mutual Benefit Association” and a reincorporation was duly effected on August 19, 1927. We decided the question involved in this case, against appellant’s contention, in Jones v. Loaleen Mutual Benefit Ass’n, 255 Ill. App. 170, and our decision was affirmed by the Supreme Court in 337 Ill. 431. Appellant contends that the decision in the Jones case is not controlling because there was no evidence in that case that the third paragraph of the declaration for reincorporation was forced upon the association by the director of Trade and Commerce. There is no evidence in the record in this case that there was any force used by the director of Trade and Commerce. There is evidence to the effect that the director furnished the blank form of declaration for reincorporation and that the directors of the American Mutual Union used that form without objection. Even if objections had been made the situation would remain the same. "Whether appellant was forced to accept the charter of reincorporation, or whether it voluntarily accepted it, is of no consequence. It was accepted and appellant is the reincorporated corporation. In the Jones case, supra, we held that the mere reincorporation or amendment of a corporate charter will not affect the identity of a corporation nor relieve it from previous liability. There is nothing in the record in this case that would warrant us in reaching a different conclusion from that announced in the Jones case, supra. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Barrt

text:
    Vincent Specht, Plaintiff in Error, v. Louis Richter, Defendant in Error.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Eugene W. Kreitner, for plaintiff in error.

      Farmer & Klingel, for defendant in error.
   Mr. Presiding Justice Barrt

delivered the opinion of the court.

Defendant in error executed and delivered to plaintiff in error the following written agreement:

“"Whereas, Aurelia Richter, daughter of Louis Richter, has given birth to a child, and

“Whereas, the said Aurelia Richter cannot definitely charge the paternity of said child to any particular person, and

“Whereas, in order to legitimize said child it will be necessary that a marriage ceremony be performed.

“It is therefore agreed and understood between Vincent Specht and Louis Richter, father of said Aurelia Richter, that the said Vincent Specht marry the said Aurelia Richter, for the purpose of legitimizing the said child and that upon said ceremony being performed and upon said marriage being consummated the said Louis Richter, father of said Aurelia Richter, hereby agrees to support, educate and maintain the said child born to said Aurelia Richter until said child shall become of age; and the said Louis Richter further agrees that in the event of any divorce proceedings being filed against the said Vincent Specht or any child abandonment proceedings are brought against the said Vincent Specht and an order of court is entered in said proceedings compelling the said Vincent Specht to pay alimony to the said Aurelia Richter or to pay for the support and maintenance of the said child born to said Aurelia Richter, then and in that event the said Louis Richter, the father of said Aurelia Richter hereby indemnifies and agrees with the said Vincent Specht to reimburse said Vincent Specht for any such payments made by reason of said proceedings aforesaid and that in case any suit at law is brought by the said Vincent Specht against the said Louis Richter to enforce the agreement herein contained on the part of Louis Richter the said Louis Richter hereby agrees not to set up any defense in such suit at law, and agrees that judgment be entered for such amounts which the said Vincent Specht was compelled to pay as aforesaid, hereby binding my heirs and personal representatives.

“Dated this 16th day of June, A. D. 1928.”

Plaintiff in error filed a declaration setting out the' provisions of the foregoing agreement, averring that in consideration thereof he married the said Aurelia Richter on June 16, 1928; that shortly thereafter she instituted a child abandonment proceeding in the county court of St. Clair county against him in which the court ordered that he should pay to her the sum of $5 per week for the support and maintenance of the said child; that since the entry of said order he has paid to the clerk of the said county court the sum of $155 for the support and maintenance of said child; that by reason thereof the defendant in error is indebted to him in said sum, etc. The court sustained a demurrer to the declaration and plaintiff in error elected to stand by his declaration and thereupon a judgment was rendered against him for costs.

Defendant in error contends that the contract is against public policy and that the trial court did not err in so holding. He argues that such a contract tends to disrupt the marital relation and would relieve plaintiff in error from his legal duty to support his wife and child.

At the time the contract was entered into defendant in error had an unmarried daughter who was the mother of a child and she was unable to say who was the child’s father. Defendant in error was anxious to have his grandchild legitimized. He said to plaintiff in error in writing, that if he would marry the daughter, he would support, educate and maintain the child until it became of age and that if plaintiff in error should be required by the order of any court to pay any alimony for the support of the said child or its mother, he, defendant in error, would reimburse him for whatever he had to pay. In other words, defendant in error was so anxious that plaintiff in error should marry his daughter and legitimize the child that he was willing to reimburse plaintiff in error for .any amount that he might be required to pay for the support of the child and its mother.

We are of the opinion that there was ample consideration for the contract. In fact there is no contention to the contrary. Plaintiff in error is legally liable for the support of his wife and child. The contract does not in any way relieve him from his liability in that regard. If defendant in error had offered to p'ay plaintiff in error a substantial annuity, sufficient to support .the daughter and her child, such an agreement would have been valid and binding. That being true we cannot say that the agreement in question is contrary to public policy. Having induced plaintiff in error to marry his daughter under the circumstances disclosed by the contract, defendant in error cannot be relieved from the liability which he voluntarily assumed and the price he agreed to pay to have his grandchild legitimized. The judgment is reversed and the cause remanded with directions to overrule the demurrer to the declaration.

Reversed and remanded with directions.


author: Mr. Justice Newhall

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Leonberger, Plaintiff in Error.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    James E. Denton and Marsh Wisehart, for plaintiff in error.
    Joseph L. Bartley, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.

Plaintiff in error was indicted, jointly with one Clem Page at the October Term, A. D. 1928, of the circuit court of Gallatin county, Illinois, for the crime of burglary and larceny, and for receiving stolen property.

The errors assigned relate to admitting improper evidence on the part of the prosecution and in refusing to admit certain evidence on the part of plaintiff in error; the giving and refusing of instructions, the denial of motions for a new trial and in arrest of judgment. The record shows that after a verdict was returned finding plaintiff in error guilty of petty larceny, the court sentenced plaintiff in error to pay a fine of $100 and to serve a term of one year at the State Farm at Vandalia.

Trial before a jury was had on October 9, 1929, and on November 4, during the same October Term, plaintiff in error was sentenced to the State Farm at Vandalia for one year and to pay a fine of $100 and costs of suit. On the same day that judgment was entered on the verdict, motions for a new trial and in arrest of judgment were made, overruled, and excepted to. The October Term of the circuit court was adjourned for the term on the 6th day of November, 1929. No time was fixed by the trial judge during the October Term for plaintiff in error to present or file a bill of exceptions.

The record shows that a purported bill of exceptions was presented to the trial judge on the 17th of December, 1929, which was after the final adjournment of the October Term of the said circuit court on November 6, 1929.

A bill of exceptions must be presented to the trial judge for signature during the term at which the cause was disposed of, or within such further time as shall be limited by the court by an order entered during that term; and if the court does not, during the term, enter an order extending the time for the filing of a bill of exceptions beyond the date of final adjournment, the court is without jurisdiction at a subsequent term to sign a bill of exceptions as to matters occurring previous to or at the time of the entry of the original judgment. Weber v. Sneeringer, 247 Ill. App. 294.

The alleged errors relied upon and discussed in plaintiff in error’s brief and argument relate only to the admission of evidence, the giving and refusing of instructions, and the sufficiency of the evidence. None of these questions can be considered by this court without a properly authorized bill of exceptions. No errors being assigned and argued upon the record proper of this case, there is nothing that the court can consider. People v. Cook, 324 Ill. 533.

For the reasons aforesaid the judgment of the circuit court of Gallatin county is affirmed.

Affirmed.


text:
    Paul Spangler, Appellant, v. Saline County Coal Corporation, Appellee.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Lloyd H. Melton, for appellant.
    Miley & Combe, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Paul Spangler, the appellant, brought suit in a justice court to recover for the loss of clothes which he claims were destroyed by fire while in possession of the appellee.

An appeal was prosecuted to the circuit court and on the trial before the court and a jury, at the close of appellant’s (plaintiff’s) evidence, the appellee moved the court to direct a verdict in its favor. The motion was granted and the peremptory instruction given.

A motion for a new trial was made and filed by appellant, which was overruled by the court. Judgment was entered on the verdict in favor of the defendant, from which appellant appeals.

We do not deem it necessary to pass upon the ruling of the trial court in granting the motion for a peremptory instruction, nor the overruling of appellant’s motion for a new trial because the questions were not properly preserved.

A careful inspection of the bill of exceptions shows no exception was taken to the ruling of the court on these two motions. “It is the well established rule in law cases that, in order to be preserved as a part of the record, all motions, including motions for a new trial and in arrest of judgment, and all the instructions given and refused by the court, must be preserved in a bill of exceptions signed by the court and filed as a part of the record in the case.” Greenwell v. Hess, 298 Ill. 459.

This court has frequently held that, in a jury trial, if it is desired to save for review the question of the sufficiency of the evidence to sustain the verdict, the losing party must make a motion for a new trial, and upon its being overruled, except to said ruling, and include such motion, order overruling the same and his exceptions thereto, together with the evidence, in a bill of exceptions. Quillman v. Cockram, 253 Ill. App. 413, 414. Clark v. Hoering-Buchholz Co., Inc., 254 Ill. App. 60.

We cannot see that the court erred in its rulings on the admissibility of evidence, and for the reasons assigned the judgment of the circuit court is affirmed.

Affirmed.


text:
    William Boudoures, Appellee, v. Earl G. Galloway and Sigmund H. Von Gruenigen, Trading as Galloway-Von Gruenigen Plumbing & Heating Company, Appellants.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    E. L. Maher, for appellants; J. B. Harris, of counsel.
    Keefe, Bawdy & Listemaw, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee recovered a verdict against appellants in the sum. of $1,080, upon which judgment was entered. The declaration charged that appellants wilfully, maliciously and wrongfully entered the building of appellee and carried away an oil burner and converted the same to their own use.

The evidence shows that appellants are engaged in the plumbing business as contractors; that appellee was the owner of a mercantile building in Granite City and had installed in said building an oil burner for the heating thereof. Sometime after the purchase of the oil burner appellee leased a portion of his building to another tenant known as the Newberry Company, who entered into a contract with appellants to install a new heating system in the building. The evidence on the part of appellee tends to show that when appellants installed. the heating system for the Newberry Company they removed appellee’s oil burner from the premises and never returned it to appellee.

Sometime after the oil burner had been removed, the heating company, from whom appellee had purchased the oil burner, filed a mechanic’s lien suit for the purpose of enforcing payment of the unpaid part of the purchase price which appellee owed for the oil burner. In this suit appellant, Von Gruenigen, testified that his partner, appellant Galloway, had removed the oil burner and stored it. Appellee testified to a conversation that he had with appellant, Von Gruenigen, in which he told appellee that he had taken the oil burner and stored it, without disclosing the whereabouts of the burner.

The evidence on the part of appellants denied that they or their employees had taken the oil burner, and disclaimed any knowledge as to its whereabouts, but appellant, Von Gruenigen, admitted that he had testified in the mechanic’s lien suit substantially as related by appellee.

The proof on the part of appellee tends to show that the actual cost of the oil burner with the installation charges was $800.

Appellants contend that there was an entire lack of evidence as to any malicious wrong and therefore no ground for punitive damages over and above the actual value of the oil burner, and in this respect we think the judgment is excessive and that the evidence did not warrant a verdict for anything in excess of the actual cost or value of the oil burner.

Appellants also contend that there is no evidence tending to support the verdict. By submitting the case to the jury, without a motion to direct a verdict, appellants must be held to have conceded that there was evidence tending to support the allegations contained in the declaration, and that question was not raised or preserved by the motion for a new trial. Warth v. Loewenstein & Sons, 219 Ill. 222.

■ Under the evidence in this record it was a question of fact for the jury to determine as to whether or not appellants were guilty of the alleged trespass and converting of the property of appellee, and in view of the sharp conflict in the testimony we would not be warranted in reversing the case upon this ground.

Appellants also contend that the court should have granted a new trial on the ground of newly-discovered evidence, but after an examination of the affidavits offered in support of the motion for a new trial we are of the opinion that the trial court did not err in refusing to grant a new trial on account of the alleged newly-discovered evidence, which was merely cumulative in its nature. There was no showing of diligence or that it could not have been discovered by reasonable inquiry prior to the trial.

We are of the opinion that the judgment is excessive in the sum of $280, and if appellee will within 15 days from the filing of this opinion file his remittitur in the sum of $280 the.clerk of this court is directed to enter judgment affirming the judgment of the court below in the sum of $800. In case of such remittitur appellants will be taxed with two-thirds of the costs in this court and appellee with one-third of the costs. In the event remittitur is not filed as above directed the cause will be reversed and remanded for a new trial.

Judgment for $800 affirmed upon filing of remittitur of $280 by appellee.


text:
    John Williams, Appellee, v. Southern Railway Company, Appellant.
    Heard in this court at the February term, 1930,
    Opinion filed May 21, 1930.

      Kramer, Kramer & Campbell and R. E. Costello, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This case was heard before this court at the February Term, 1929, and the judgment was reversed and cause remanded on account of an erroneous instruction given by the plaintiff in the court below. After the cause was remanded the case was again heard before a jury and verdict found against appellant for $3,200, upon which judgment was entered and appellant prosecutes this appeal.

On the second trial the case was heard upon the same pleadings, except that appellee was allowed to amend by increasing the ad damnum. Substantially the same facts were adduced by the respective parties at the second trial as are stated in Williams v. Southern Ry. Co., 253 Ill. App. 437, and we do not deem it necessary to here restate such facts and the same are adopted for this opinion.

Counsel for appellant contends that if appellee was injured as claimed by him the injury was occasioned from a risk which he assumed in Ms employment.

The declaration charged that the injury was due to the negligence of a fellow servant. In Reed v. Director General of Railroads, 258 U. S. 92-95, 66 L. Ed. 480, at page 482, it was held as follows:

“In actions under the Federal Act, the doctrine of assumption of risk certainly has no application when the negligence of a fellow servant, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury. To hold otherwise would conflict with the declaration of Congress that every common carrier by railroad, while engaged in interstate commerce, shall be liable to the personal representative of any employee killed while employed therein, when death results from the negligence of any of the officers, agents or employees of such carriers.”

In the case of Pennsylvania R. Co. v. Gavin, 234 Ill. App. 28, this court held that an employee, under the Federal Employers’ Liability Act, does not assume the risk of negligence from fellow employees, with certain exceptions that do not apply to the facts in this case.

The testimony on behalf of appellee as to how the accident happened is that appellee was working in a bent over position, holding a nipping bar, in the act of raising a railroad tie; that a fellow employee was also working about three feet away and while endeavoring to strike another tie in order to move it, missed the tie with his maul and struck some loose rock, which glanced and evidently struck appellee in the face causing an injury to his eye.

Whether the act of the fellow employee of appellee was merely accidental or was, under all the circumstances, negligence in view of the respective positions of the workmen was a question of fact" for the jury and we are unable to say that the verdict in this respect is manifestly against the weight of the evidence. Where the same question has been submitted to two juries and found adversely to appellant’s contention, ordinarily the verdict will not be disturbed. Meier v. Cleveland, C. C. & St. L. Ry. Co., 206 Ill. App. 285.

Counsel also contends that the trial court erred in not directing a verdict for appellant, claiming that the evidence shows that appellee, did not receive his injury in the manner testified to by him, and secondly that his present injury is due to a constitutional disorder of his nose.

If there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eyes of the law, find that the material averments of the declaration have been proved, a verdict should not be directed. Devine v. Delano, 272 Ill. 166.

The law is well settled that on a motion to direct a verdict for the defendant if the condition of the evidence at the close of plaintiff’s case does not justify an instruction for the defendant, no evidence introduced by the defendant will justify such instruction except where there is uncontradicted evidence of an affirmative defense. Shannon v. Nightingale, 321 Ill. 168. In view of the conflict in the evidence we are of the opinion that the court did not err in refusing to direct a verdict.

Counsel urge that the trial court erred in giving appellee’s first instruction. This instruction was approved by the Supreme Court in Devine v. Chicago R. I. & P. Ry. Co., 266 Ill. 248. Complaint is also made as to appellee’s tenth instruction, but in view of the principles of law announced in Gila Valley G. & N. Ry. Co. v. Hall, 232 U. S. 94, 101, and Brant v. Chicago & Alton R. Co., 294 Ill. 606, to the effect that an employee under the Federal Liability Act is not obliged to exercise care to discover danger which resulted from the employer’s negligence, we are of the opinion that said instruction was not erroneous.

Complaint is also made of the court’s rulings on evidence offered by appellant and refused, but we do not consider that such rulings were sufficient to constitute reversible error.

For the reasons aforesaid the judgment of the court below is affirmed.

Affirmed.


text:
    John I. Haynes, Assignee of John I. Haynes and George D. Barnett, Jr., Appellant, v. East St. Louis Council No. 592, Knights of Columbus, Appellee.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Senega C. Taylor and P. K. Johnson, for appellant.
    McGlynn & McGlynn, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This was a suit by John I. Haynes, as assignee of John I. Haynes and George D. Barnett, Jr., a copartnership doing business under the firm name of Barnett, Haynes and Barnett, architects and engineers, against appellee to recover a balance of $1,500 due for services under a written contract executed between the parties.

The amended declaration charges that at and prior to July 23, 1924, appellant and the said Barnett were copartners in the practice of architecture in the City of St. Louis, Missouri, under the above-mentioned firm name; that appellant was the holder of a certificate of registration as a registered architect by the Department of Begistration and Education of the State of Illinois; that the written contract was entered into between said copartners and appellee, which contract is set out in haec verba in the declaration.

The substance of the contract is that said architects, in consideration of . the payments provided to be made to them by the owner (appellee), agreed to prepare preliminary plans for the acceptance and after acceptance to prepare complete plans, specifications and drawings in a skilful arid, businesslike manner for a club building to be erected in East St. Louis by appellee as owner. The contract provided that the owner agreed to pay said architects for the strict performance of said agreement a commission of 3% per cent, based on a total estimated cost of the building ,o'f $300,000, payable iri instalments; the contract provided that the actual cost of the building, when completed, should include all work and material necessary to fender the same fit for occupancy,, except furniture and furnishings. There was a provision that the architect was to decide any disputes between the owner and contractor as to the construction of drawings and specifications, without extra charge therefor.

The declaration avers that pursuant to this contract the copartners prepared preliminary plans which were accepted, and thereafter prepared complete plans, specifications and drawings which were delivered to and accepted by the owner; that the owner used said plans and erected its building according to the same, with such changes as the owner caused to be made.

The declaration further avers that appellant, being a registered architect under the laws of the State of Illinois, as therein above set forth, had supervision of the preparation of said plans, specifications and drawings and gave his knowledge, skill and attention thereto, and fully approved said plans, specifications and details before the same were delivered to appellee. The breach charged in the declaration is that after said copartnership completed the work and duties required of them by said contract and after the day arose for appellee to make payment of $10,500, being the sum equal to 3% per cent of $300,000, the defendant paid only a part thereof and that the amount of $1,500 of the account remained due and unpaid and that appellee refused to pay the same.

The declaration charged that appellant was the assignee and the equitable and bona fide owner of the account due and payable under said contract and that he acquired title thereto by written assignment from the other copartners on May 17, 1926. •

A general and special demurrer was filed to the amended declaration which was sustained by the court and after appellant elected to stand upon the amended declaration, final judgment for dismissal of the suit and for costs was entered against appellant.

The sole question presented on this appeal is whether or not under the averments of the amended declaration appellant is barred from a recovery in this case because his copartner, George D. Barnett, Jr., was not a registered architect in the State of Illinois.

The declaration contains apt averments showing that appellant is the assignee of and the equitable and bona fide owner of the balance due under a written contract made between the original parties. It is conceded by appellant that if the copartnership firm could not have recovered under the original contract by reason of the failure of one of the copartners not having an architect’s license, that appellant cannot recover in this suit.

Section 1 of chapter 10% of the Revised Statutes in force July 1, 1919, Cahill’s St. ch. 10a, If 1, provides that it shall be unlawful for any persons to practice architecture without a certificate of registration as a registered architect duly issued by the Department of Registration and Education under said act.

Section 2 defines what shall constitute the practice of architecture and, in substance, provides that the planning or supervision of the erection, enlargement or alteration of any building or buildings or any part thereof, to be constructed for others, constitutes the practice of architecture.

Section 3 of the act provides that no corporation shall be licensed to practice architecture, but it shall be lawful for a stock company or a corporation to prepare drawings, plans and specifications for buildings which are erected or their construction supervised by such stock company or corporation, provided the chief executive officer or managing agent of such stock company or corporation shall be a registered architect, and provided further that the supervision of such building and construction shall be under the personal supervision of said registered architect, and that such drawings shall be prepared under the personal direction and supervision of such registered architect and bear the stamp of his official seal. This section also provides that registered architects may enter into a partnership with licensed structural engineers. There are no further provisions in the act in relation to the licensing of a copartnership as such.

Appellant contends that the trial court erred in sustaining the demurrer to the amended declaration and that under the authority of People v. Rodgers Co., 277 Ill. 151, appellant is entitled to recover the balance due from appellee for architectural services notwithstanding the fact that one of appellant’s copartners was not a licensed architect.

In the Rodgers case, supra, it was held under the former statute ,of 1916 that a corporation which had contracted to .perform all the usual and necessary architectural services for the building of a church was not violating the statute where it furnished the owner with plans and specifications which were all prepared by and under the direction of a regularly licensed architect.

Section 3 of the statute regulating the licensing of architects provides that it shall be lawful for a stock company or a corporation to prepare drawings, plans, etc., for the construction of buildings providing the chief executive officer or managing agent of such stock company or corporation shall be a registered architect and the supervision of the drawings, plans, etc., and the building constructed pursuant thereto shall be under the direction of a licensed architect.

The Supreme Court in the Rodgers case said in reference to the above provisions, as follows: “By the use in said section of the words, ‘but the same may employ licensed architects, ’ the legislature clearly intended that corporations might contract for the doing of architectural work, provided the same be done by a regularly licensed architect or under the supervision of a regularly licensed architect. The use of those words was not necessary to authorize a corporation to employ architects to do architectural work on any structure being erected for the corporation, as it clearly had that right without the use of such words. Making contracts for services to be performed by an architect and collecting the compensation therefor is not practicing architecture within the meaning of the statute. This clearly appears from section 9 of said act, which reads: ‘Any person who shall be engaged in the planning or supervision of the erection, enlargement or alteration of buildings for others and to be constructed by other persons than himself shall be regarded as an architect within the provisions of this act, and shall be held to comply with the same; but nothing contained in this act shall prevent draughtsmen, students, clerks of works or superintendents, and other employees of those lawfully practicing as architects, under license as herein provided for, from acting under the instruction, control or supervision of their employers; or shall prevent the employment of superintendents of buildings paid by the owners from acting, if under the control and direction of a licensed architect who has prepared the drawings and specifications for the building.’ . . .

“Any natural person, licensed or unlicensed, may make a contract to furnish architectural work to be performed by a licensed architect, and by section 9 of said act any draughtsman, student or other employee may do architectural work under the direction of a licensed architect. The object of this statute was, not to protect architects merely by limiting the work to those that possessed a license. The real purpose of the statute is the protection of the public against incompetent architects, from whose services damage might result to the public by reason of dangerous and improperly constructed buildings and by badly ventilated and poorly lighted buildings.”

In Keenan v. Tuma, 240 Ill. App. 448, it was held that where one, who was employed “architecturally” to make alterations upon a building, the work to include the making of plans, drawings and specifications, the letting of contracts and the supervising of construction, personally attended to all of such undertaking except the preparation of the plans, etc., which were done under his supervision by a licensed architect in his employ, such a person undertook and engaged in the practice of architecture in violation of the statute.

In the Keenan case the court found that the proof showed that practically all of the services that the plaintiff contracted to render pertained to the practice of architecture and that plaintiff himself inspected the work from time to time, as it progressed and checked the work according to the plans and specifications, and supervised “the erection, enlargement or alteration” of all that was contracted for.

The court further held, in view of this proof, that the acts of the plaintiff in that case constituted a violation of the statute and that it necessarily followed that such services could not become a valid consideration for the promise of the owner to pay therefor and denied a recovery to the plaintiff. It was further said in the Keenan case by the court that “Although section 3 of the act, as interpreted by the court in People ex rel. State Board Examiners of Architects v. Rodgers Co., 277 Ill. 151, provides that a corporation may contract for doing architectural work, if the work is to be done by a regular licensed architect, and there is no express provision in the act that a private person may do likewise, we think it must be assumed that the legislature did not intend to give a corporation greater contractual rights than an individual, and so deprive the latter of the right of employing licensed architects.”

In the case at bar the declaration avers that the plaintiff, being a registered architect under the laws of the State of Illinois, had supervision of the preparation of all said plans, specifications and details, and gave his knowledge, skill and attention thereto, and fully approved said plans, specifications and details before the same were delivered to the defendant.

In Greenberg v. Reinken, 197 Ill. App. 318, the court had under consideration the right of a copartnership to recover for plumbers’ services where one of the members of the plumbing partnership was not licensed in accordance with the act providing for the licensing of plumbers and for inspection of plumbing, Cahill’s St. ch. 24, ¶ 70. In this case it appears that one Greenberg and Levinson were in business as partners in the plumbing business; that the work in question had been performed under an agreement between them and the owner, for which they had been paid in part and on failure to pay the balance suit was instituted in the name of the copartners to enforce mechanic’s lien. The court in that case said:

“It appears from the evidence that in the conduct of complainants’ business Greenberg had exclusive charge of supervising the plumbing work, making sketches for the installation and laying out the job, and had charge of the practical part of the work; that Levinson was not a plumber and never did any plumbing work and was not familiar with it and had no charge or supervision over it; that his duties were mainly connected with office work and bookkeeping, tending to the payment of bills with supply houses, keeping the payroll book with the names of employees, and tending to the distribution of their pay envelopes; that he also did the collecting; that he had nothing to do with the actual plumbing work done by the firm, either in planning or construction.

“We do not find a decision in any case in this State directly in point. In Schnaier v. Navarre Hotel Go., 182 N. Y. 83, the Court of Appeals had under consideration a case involving facts almost identical with those now before us, with the additional fact that under the New York statute it was provided that ‘each and every member of the firm shall have been registered.’ In that case, as here, only one of two members of the firm was registered and he attended to the plumbing work. The other member was the financial man, who was not registered. The majority of the court held that this provision of the statute was invalid, saying: ‘It prohibits a business man, with financial means and business ability, and a registered master plumber, with the requisite mechanical skill, from uniting the financial and business ability of the one with the energy and mechanical skill of the other in a partnership for conducting a legitimate business. The right to form partnerships for the conduct of business has existed from time immemorial and any interference with that right must be regarded as an unwarranted interference with individual freedom condemned by the Constitution. The feature of the statute to which I have referred would deprive a firm engaged in the plumbing business, composed of half a dozen persons, from enforcing contracts and collecting their bills for work done unless they could show that each and every member of the firm was a registered plumber, and if, as in this case, it was impossible for one of them to become registered, the firm must dissolve. A law that produces such results in its operation cannot be valid.”

Counsel for appellee contends that under the strict wording of the contract appellee had a right to call upon either or both members of the copartnership for his services as an architect, and under such a contract calling for the practice of architecture, by one who was' not licensed, that the contract is therefore void and cannot be enforced.

The contract in question purported to be between appellant and George D. Barnett, Jr., in business as architects and engineers under the firm name of Barnett, Haynes and Barnett, architects and engineers, as parties of the first part, and was signed with the firm name by appellant and by appellee as party of the second part; the parties of the first part in the contract being referred to as architects and the second party as owner.

The contract executed by appellant on behalf of the firm did not specifically call for architectural services to be performed by each and every member of the firm, and, in the absence of such special requirement, any member of the firm who was lawfully licensed had the right to perform the architectural services mentioned in the contract.

Section 3 of the statute in question, Cahill’s St. ch. 10a, ¶ 3, authorizes stock companies or corporations to prepare plans, specifications, etc., providing the chief executive officer or managing agent is a regularly licensed architect. A stock company is merely a co-partnership and is governed by the' same rules as ordinary commercial partnerships. People v. Rose, 219 Ill. 46, 60.

It was said in the Keenan case, supra, “We .think it must be assumed that the legislature did not intend to give a corporation greater contractual rights than an individual and so deprive the latter of the right of employing licensed architects," and likewise it is clear that the legislature did not intend to give “stock companies” greater or different rights and privileges than ordinary partnership.

If, as held in the Rodgers case, supra, the making of a contract for services to be performed by an architect and collecting the compensation therefor is not practicing architecture within the meaning of the statute, then it is evident that the mere making of the contract in question did not constitute a violation of the statute and the contract is not void.

We think the court erred in sustaining the demurrer to the declaration and the judgment of the trial court is reversed and the cause remanded with directions to overrule appellee’s general and special demurrer.

Reversed and remanded with directions.


author: Mr. Justice Wolfe

text:
    Jessie Ridenour, Defendant in Error, v. Oren Johns and Paul Quindry, Minors, by John M. Quindry, their Next Friend, Plaintiffs in Error.
    Heard in this court at the October term, 1929.
    Opinion filed May 21, 1930.
    Endicott & Endicott and White & Quindry, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendant in error, Jessie Ridenour, plaintiff below, filed her suit in the circuit court of White county, Illinois, against Oren Johns and Paul Quindry, aged 9 and 13 years respectively. The plaintiff claims she was injured through the negligence of these two minor boys, who, while coasting on a sled, ran into her and knocked her down. A trial was had and a judgment entered against the defendants jointly for the sum of $100 and costs of suit.

The record in the case discloses that Oren Johns at the time of the accident was 9 years of age and Paul Quindry was 13 years of age. The record also discloses that no guardian ad litem, was appointed by the court to represent either of these minor defendants. These minor defendants filed a motion for a new trial, one of the assignments of error being that the trial court erred in not first appointing for each of these de fendants a guardian ad litem. The court overruled the motion for a new trial and entered a joint judgment against each of the minor defendants.

The minor defendants' by their next friend bring the case here for review upon a writ of error and assign numerous errors why the judgment of the circuit court should be reversed. We will not attempt to discuss all of the assigned errors as we feel that the.decision of the first assignment will dispose of the case in this court, viz: That the trial court erred in not appointing a guardian ad litem to represent each of these defendants.

In the early case of Peak v. Shasted, reported in vol. 21 Ill. at page 137, our Supreme Court decided that a minor must appear and defend his suit by a guardian ad litem appointed by the court, and if that is not done any judgment or decree entered against such minor is not void, but voidable. There is a long line of decisions that affirm this doctrine; Kesler v. Penninger, 59 Ill. 134, 135; Millard v. Marmon, 116 Ill. 649, 651; White v. Kilmartin, 205 Ill. 525; Wettrick v. Martin, 181 Ill. App. 94; McCarthy v. Cane, 301 Ill. 534; Simpson v. Anderson, 305 Ill. 172.

It was reversible error for the trial court to proceed with the trial of this case without first appointing a guardian ad litem to represent the minor defendants.

The judgment of the White county circuit court is hereby reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Wolee

text:
    The People of the State of Illinois, Defendant in Error, v. Robert Robinson, Plaintiff in Error.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    J. H. Lane and Harry Anderson, for plaintiff in error.
    George W. Hogan, Jr., State’s Attorney, for defendant in error.
   Mr. Justice Wolee

delivered the opinion of the court.

In July 1929 the State’s Attorney of Hamilton county, Illinois, filed in the county court of said county an information against Robert Robinson, plaintiff in error, charging him with the larceny of one chicken of the value of $1.50. The defendant was brought into court and entered a plea of guilty to larceny as charged in the information. Later, at the same term of court,' the defendant withdrew his plea of guilty and gave bond for his appearance to the October Term, A. D., 1929 of said court. The records show that on the 17th day of October, 1929, the defendant, Robert Robinson, came into open court and entered a plea of not guilty to the charge in the information and answered “ready for trial.” That on the same day a jury was impaneled and sworn to try the case and evidence heard. That the trial was finished on the 18th day of October, 1929, when the jury found the defendant guilty of larceny and found the value of the property stolen to be 75 cents. After the verdict and before the sentence the defendant, through his attorney, moved the court to set aside the verdict of the jury and grant a new trial, which was overruled. A motion in arrest of judgment was also overruled. After this the defendant was sentenced to the State Farm at Vandalia for six months and fined $20 and costs of suit.

It is contended by the plaintiff in error that the record does not show that the defendant below was present in court at the time sentence was pronounced against him. Our courts have held that where the fact of the prisoner’s presence by fair intendment can be collected from the record that is sufficient to show that he was actually present. (Schirmer v. People, 33 Ill. 276; Sewell v. People, 189 Ill. 174; People v. Moore, 161 Ill. App. 56.)

Since the record shows that the defendant on the 17th day of October, 1929, entered a plea of not. guilty and answered “ready for trial,” it follows that he was present in court at that time. The record shows that the proceedings were continuous and the verdict rendered on the 18th day of October and sentence followed on the same day.

, Where the record shows that the accused was present at the commencement of the trial and the whole proceeding appears to have taken place in a consecutive and continuous order, it will be presumed that the defendant was present at every subsequent stage of the proceeding down to the return and receipt, of the verdict and sentence of the court. Sewell v. People, 189 Ill. 174; Schirmer v. People, 33 Ill. 276; Padfield v. People, 146 Ill. 660; and Bolen v. People, 184 Ill. 338. We think the record in this case shows sufficiently that the defendant was present in court at all stages of the proceeding.

It is next contended that the record does not show that the jury was in charge of a sworn officer while they were deliberating on their verdict and that it is reversible error if the record does not show such facts. This question was not raised in the trial court and it cannot be raised in this court. In the case of People v. Fitzgerald, 297 Ill. 264, 269, it says, “It is also contended that the . record does not show that the jury upon their retirement to consider their verdict, were in charge of a sworn officer, as required by law. This point appears to have not been raised in the trial court and cannot be raised here for the first time.” The failure to have a jury placed in charge of a sworn officer during retirement is waived by the failure of the accused to object at the time to the omission of such duty, and the question is therefore not open to review upon a writ of error. McIntyre v. People, 38 Ill. 514; and Dreyer v. People, 188 Ill. 40.

We find no reversible error in the case and the judgment of the circuit court of Hamilton county, Illinois, is affirmed.

Affirmed.


text:
    C. C. McMahel, Appellant, v. Jacob T. Smith, Appellee.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Frank Fornoff, for appellant.
    M. J. White and C. H. Schafer, for appellee; P. J. Kolb, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an action of debt brought by the appellant, as plaintiff in the circuit court of Wabash county, to recover of appellee, defendant below, the statutory penalty of one-third' of the value of the personal property sold by the appellee under a chattel mortgage, in which appellant and appellee are respectfully mortgagor and mortgagee, for the alleged failure of the appellee to comply with the provisions of section 2 of chapter 95, 28, Cahill’s Illinois Revised Statutes 1929, governing the sale of mortgaged chattel property. The record is presented on purported errors in the pleadings and the appellant assigns as error the rulings of the trial court in sustaining appellee’s demurrer to counts one and two of appellant’s declaration and also in overruling appellant’s demurrer to appellee’s plea number two.

The demurrer to the declaration is general to all three counts and a special demurrer to each count thereof. In the special demurrer to count one the ground of demurrer is that the count is double. In his printed argument filed in the court the appellant states that when this count was drawn he entertained some doubts as to its singleness and “it would be of no personal importance to appellant, whether the first count would be held bad or good, provided the following two counts are held good.” Appellant also is of the opinion that a recovery can be had for the penalty provided by the above section of the statute without averring and showing that all provisions of the section governing the sale of chattels have been violated.

It is our conclusion from the foregoing that the appellant in this count has, in effect, abandoned his assignment of error, namely: that the lower court erred in sustaining the demurrer to count one of the declaration.

•The special cause of demurrer to the second count is that the count avers only the failure of appellee to give notice three days prior of the time and place of having the sale, but does not aver appellee’s failure to do all the things required by said U 28 in order that appellee would become liable to appellant for the penalty provided by the statute. Paragraph 28 provides that “notice óf the time and place of said sale shall be given to one or more of the mortgagors three days prior to said sale and by posting a copy of said notice at the place where said goods secured by said mortgage are located at least three days prior to said sale, and upon the mailing of said sale the mortgagee shall make out a statement showing the items of personal property sold, the names of each purchaser and the amount for which each article sold, and also an itemized statement of the necessary, reasonable expenses incurred in taking, keeping and selling said property, and shall deliver the same to the mortgagor or some one of them in person or by mail, and if he fails so to do within ten days after said sale,' the owner of said property may sue for and recover one-third of the value of the property so sold, from the mortgagee or person making said sale as assignee of said mortgagee.” In the case of Aoskad v. Packard Motor Car Co. of Chicago, 195 Ill. App. 251, the report of the mortgagee of the sale of mortgaged chattels omitted to give the name of the purchaser or purchasers of the chattels and the court held that it was not a substantial compliance with the statute. The provision of the statute requiring the report of sale to give the name of the purchaser is a distinct and unambiguous, requirement. The court in that case held that the omission of one requirement of the section is fatal. The court further said, “We cannot construe even a penal statute so liberally as to supply something wholly lacking. We might construe an imperfect attempt to state an item of required information so as to give effect to what was intended, but we must have something to start with. We cannot construe something into being from nothing.” We are of the opinion that it is not necessary to aver and prove a failure to comply with all the requirements of section 28 to sustain.a cause of action for the penalty provided by said section. (Pendleton v. Petchaft, 210 Ill. App. 313.)

■The demurrer to the third count being overruled, the appellee filed thereto three pleas, the general issue and special pleas two and three. A replication was filed to plea three. That plea is not before this court for consideration. To plea two the appellant filed a gen-, eral and special demurrer and it is now urged that the said plea is double and presents matters of defense available under the general issue. The. second plea set up that, after default had been made by the. mortgagor (appellant), appellant told appellee he would turn the property over to him and he could do what he pleased with it, that it was his; after being so informed the appellee took immediate possession thereof and sold it the next day. He gave to the purchaser a bill of sale, showing all of the items of property the same covered, the price, terms and name of purchaser. Such bill of sale was recorded in the office of the county recorder and on the same day appellant went to that office and read and examined it; that the next day appellant went to the purchaser of the property, at the place where the property was and the sale had been held, and asked the purchaser to see his bill of sale. That the same was produced for his inspection, and examined, and appellant and the purchaser went over it item by item so that the appellant could pick out the articles which were his and were not included in the chattel mortgage.

It is appellee’s construction of plea two that the plea is a complete defense to the action as it shows the property was not taken to foreclose the chattel mortgage in question, but that foreclosure procedure was obviated or rendered unnecessary by the appellant waiving the necessity of foreclosure by delivering the property to the appellee and telling him it was his and he could do as he pleased with it; and that further portions of the plea as aside from this issue should be regarded as mere surplusage.

It was incumbent upon the appellant to prove, as against the plea of general issue, that the taking of the property and a sale thereof was a foreclosure under the chattel mortgage. Plea two, if appellee’s construction thereof is accepted, was subject to the ground assigned in the demurrer thereto that the plea amounts to the general issue. Johnston v. Ewing Female University, 35 Ill. 518; Wadhams v. Swan, 109 Ill. 46; Benes v. Bankers Life Ins. Co., 282 Ill. 236. If that portion of the. plea which purports to set up a waiver of the statutory requirements on the ground that the appellant received knowledge concerning the sale of the property after its sale is material, then the plea should have confessed the cause of action alleged in count three, and allege matters which legally avoided the effect thereof.

Said plea does not traverse any material allegations of the declaration, hence it is fatally defective on general demurrer. Landis v. People, 39 Ill. 79; Gradle v. Hoffman, 105 Ill. 147; Galena & S. W. R. Co. v. Barrett, 95 Ill. 467.

Furthermore, the fact, if it be so, that the appellant obtained knowledge of the terms, conditions and name of purchaser of the mortgaged chattels after the sale, would not present a defense to the action for the penalty provided by the statute. (Aoskad v. Packard Motor Car Co. of Chicago, 195 Ill. App. 251.)

The judgment of the trial court dismissing the action is reversed and the cause remanded to the trial court with directions to enter an order sustaining the demurrer to the first count of the declaration, overruling the demurrer to the second count and sustaining the demurrer to plea two.

Beversed and remanded with directions.