author: Mr. Justice O’Connor , Mr. Presiding Justice Thomson

text:
    The People of the State of Illinois, Defendant in Error, v. Floyd Oberby, Plaintiff in Error.
    Gen. No. 30,319.
    1. Criminal procedure — necessity of approving propositions of law submitted where trial to court without fury. The failure of the trial court, in a prosecution for crime wherein trial is had before the court without a jury, to mark as “held” propositions of law submitted by the defendant is not error.
    2. Criminal procedure — immateriality on review of propositions of law submitted at trial. Propositions of law submitted at the trial of a prosecution for crime serve no purpose on review thereof in the Appellate Court.

      3. Highways — sufficiency of evidence to show possession of motor vehicle on which original motor number changed in violation of Cahill’s St. ch. 95a, If 36. A 'conviction of violating Cahill’s St. ch. 95a, If 36, by having possession of a motor vehicle on which the original motor number had been altered, was warranted by proof that the defendant, after having purchased such motor vehicle at second hand, wrecked the motor thereof and replaced it with a secondhand block from another car; that such block had been rendered a blank, before defendant bought it, by filing therefrom the original number thereof; and that on installing it in the car defendant had stamped upon the block the number originally borne by the motor he wrecked.
    Thomson, J., dissenting.
    Error by defendant to the Municipal Court of Chicago; the Hon. Howard W. Hayes, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 10, 1926.
    Roy C. Woods, for plaintiff in error; Roy S. Gaskill, of counsel.
    Robert E. Crowe, State’s Attorney, Edward E. Wilson and Clarence E. Nelson, Assistant State’s Attorneys, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

On April 18, 1925, by leave of court, an information was filed in the municipal court of Chicago, charging that the defendant “did then and there knowing and unlawfully have in his possession a certain motor vehicle on which the original motor number had been altered from 7286043 to 9515119, to wit, a Ford Tudor-sedan car, in violation of section 35 of the Motor Vehicle Law [Cahill’s St. ch. 95a, ¶ 36], contrary to the statute.” The defendant was arraigned and entered a plea of not guilty. By agreement a jury was waived and after hearing the evidence, the court found the defendant guilty as charged in the information, and a fine of $200 and costs was imposed, to reverse which the defendant sued out this writ of error.

It appears from the evidence that the defendant was engaged in the selling of secondhand automobiles, principally Ford cars, his place of business being located at No. 5904 South Ashland Avenue, Chicago. A police officer testified that he went to defendant’s place of business on April 18, 1925, because he had been informed by a man who lived at Manteno, Illinois, that the defendant had a stolen automobile in his possession; that afterwards the party making the complaint advised the officer that he had made a mistake, that he had given the officer the wrong number of the automobile and that the car had not been stolen. The officer further testified that he examined the Ford car in question, at defendant’s place of business. “We found it was a changed number car” and that “I arrested the man (defendant) for changed numbers”; that he together with other officers took the automobile to the Municipal Pier and by a heating process tested the numbers on the engine of the automobile; that the engine number, which was visible on the car, was 9515119; that the test brought out the fact that underneath this number was the number 7286043. The officer further testified that the car in question had not been stolen; that when he was at defendant’s place of business, defendant produced a bill of sale for the car which showed that defendant had bought it. He further testified' that the defendant also showed his bills, showing that the defendant had. bought a secondhand block to put in the automobile. Another officer testified that the original motor number on the block was 7286043 and that that number was raised to 9515119, the latter number being stamped over the former.

The defendant testified that he purchased the car in question from E. 0. Shepard, Manteno, Illinois; that it was a secondhand car, in first class condition when he got it, but later the motor was wrecked; that When he bought the dar, he obtained a bill of sale from Shepard; that after the motor was wrecked, he went to the Sherman Motor Company in Chicago and bought a secondhand block, which he installed in the car. It further appeared, from a statement made by the defendant’s counsel on the trial, that the defendant was a larger dealer in secondhand Fords, handling about 1,500 cars per year, but that some of them were other makes of automobiles. The defendant further testified that when he bought the secondhand block from the Sherman Motor Company, it was blank, no number on it at all; that after he installed this block in the car in question, he caused the number 9515119 to be stamped on the block, and this was the same number that was on the block which he took out of the car and which block he destroyed' when he removed it as the law required. The foregoing is the substance of all the evidence offered on the hearing.

1. The defendant contends that the court erred in refusing to mark “held” certain propositions of law submitted by him. The Supreme Court in People v. Johnson, 288 Ill. 442, held that the submission of a proposition of law to the court is inapplicable to a criminal case where the trial is before the court without a jury. Moreover, propositions of law serve no purpose in this court. Pittsburgh, C., C. & St. L. Ry. v. Chicago City Ry. Co., 300 Ill. 162.

2. The defendant further contends that the evidence shows he in no way violated the provisions of section 35 of the Motor Vehicle Law [Cahill’s St. ch. 95a, ¶ 36], for the reason that he only transferred the No. 9515119, which appeared on the block in the car in question, to the secondhand block which he later installed in the car, and that section 35 does not make it illegal to so transfer such number. His further position is that there was no violation of the Motor Vehicle Law, because that law was enacted to prevent concealing or hiding the identity of a motor vehicle, and that since the evidence discloses that he placed the identical number on the secondhand block which he installed in the car as was on the one which he removed from it, the identity of the car was maintained.

' In discussing the reason for the enactment of the Motor Vehicle Law and section 35 thereof, the Supreme Court in. the case of the People v. Billardello, 319 Ill. 124, said that section 35 of the act (p. 125) “was enacted in the exercise of the police power in the interest of the general welfare, not only for the protection of that part of the public who may be the owners of automobiles against theft, but for the protection of the public in general against the commission of crimes, and the escape of criminals by the use of stolen automobiles whose identification is made difficult by the destruction of identifying marks. Not only is the stealing of automobiles an extensive criminal avocation, but stolen automobiles are used extensively in the commission of other crimes in bringing the criminals’ to the scene of their criminal action from a great distance and in enabling them to depart swiftly to a great distance, leaving slight clues to their identity. These evils, and others connected with the use of automobiles and other motor vehicles, have rendered the* adoption of stringent legislative regulation of dealing in motor vehicles, and of the transfer and use of them, necessary for the protection of the public.” And the court there further said that the legislature had seen fit to require the registration and identification of automobiles by giving the factory and engine numbers and the giving of bills of sale in case of the sale of the automobile and many other requirements. The facts in that case were not similar to those in the case at bar, because there the original number appearing on the engine had been changed, but we quote the language as showing the purpose of the Motor Vehicle Law.

The question for determination is, does the evidence show that the defendant violated section 35 [Cahill’s St. ch. 95a, ¶ 36] of the act, which provides: “Any person or persons, firm or corporation, who, * * * shall sell or offer for sale in this State, or who shall own or have the custody or possession of a motor vehicle, the original engine number of which has been destroyed, removed, altered, covered, or defaced * * * shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than two hundred dollars ($200.00) nor more than five hundred dollars ($500.00), or by imprisonment in the county jail for a term of not less than thirty days nor more than one hundred eighty days, or by both such fine and imprisonment, and upon a second conviction under this section the punishment shall be imprisonment in the penitentiary for a term of not less than one year nor more than five years.” Then follows a proviso, which is not involved here, following which it is provided that “It shall be the duty of every sheriff, deputy sheriff, constable, chief of police or other peace officer in this State having-knowledge of a motor vehicle, the engine number of which has been destroyed, removed, covered, altered or defaced, to immediately seize and take possession of such motor vehicle, arrest the supposed owner and custodian thereof, and cause prosecution to be brought in a court of competent jurisdiction.

“It shall be the duty of the court to retain the custody of said motor vehicle pending- the prosecution of the person arrested, and in case such person shall be found guilty said motor vehicle shall remain in the custody of the court until the fine and costs of prosecution shall be paid. In which event the court shall deliver said motor vehicle to such supposed owner or custodian for the sole purpose of removing said engine from said motor vehicle and tearing apart said engine and .disposing of same for junk. In case each fine and costs shall not be paid within thirty days from the date of rendition of judgment said court shall proceed to advertise and sell said motor vehicle in the maimer provided by law for the sale of personal property under execution, ’ ’ giving a detail description of the automobile and providing that a copy of the advertisement shall be mailed to the Secretary of State; that the proceeds of the sale, if any sum remains, shall be paid by the court to the supposed owner or custodian of the motor vehicle. And continuing the section provides that in case the motor vehicle is sold by order of court, “the purchaser of said motor vehicle shall remove said engine from said motor vehicle and shall tear the same apart and shall not dispose of it as a whole so that it might be thereafter used as an engine in any motor vehicle.” A further provision is that if at any time thereafter the true owner appears and proves to the satisfaction of the court that he is such owner, the vehicle is to be returned to him and he shall be entitled, upon application to the secretary of state, to have the original number of the engine restored.

Keeping in mind the purpose of the act as stated by the Supreme Court in the Billardello case, we think it apparent that the purpose of the act was that the engine of each motor vehicle should be stamped with a number so that all vehicles might be identified, not only the motor vehicle involved in a prosecution such as in the instant case, but all other automobiles. That part of section 35 above quoted shows that the legislature had in mind that the part of the engine of an automobile on which the number was stamped or placed could not be used in but one automobile, and in the instant case when the secondhand block, upon which there was a designated number and which had been used in some other automobile, was removed-from that automobile, it could not thereafter, under the law, be placed in another1 automobile and given another and different number, and this is what the uncontradicted evidence shows was done in the instant case. If defendent were permitted to do this, then the identity of the automobile from which the secondhand block had been removed would be to a great extent destroyed, and the purpose sought to be accomplished by that law, in part, nullified. Section 35, above quoted, specifically provides that where a person is arrested, who has an automobile in his possession the original engine number of which has been altered or changed, that the arresting officer shall take the automobile, and if the defendant is thereafter found guilty and pays his fine, the motor vehicle will be returned to him, but he must then destroy that part of the engine upon which the number is placed. If the automobile is sold by order of court, the' purchaser shall remove that part of the said engine from said motor vehicle and shall tear the same apart and shall not dispose of it as a whole, so that it might thereafter be used in an engine in any motor vehicle. In the instant case when the original number on the secondhand block was “covered” by the super-imposing of another number on it, it was “covered” within the meaning of section 35, and therefore the law was violated. The defendant’s testimony that the secondhand block was a blank when he bought it is contrary to the fact because the officer when he called at defendant’s place of business saw that the number of the block had been changed and he thereupon placed the defendant under arrest, as the statute provided; and afterwards, when the heat test was applied, the old number appeared, proving conclusively that it was a block on which the original number had been changed.

■ The judgment of the municipal court of Chicago is affirmed.

!'Affirmed■

Taylor, J., concurs.

, Mr. Presiding Justice Thomson

dissenting: I do not agree with the interpretation of the statute involved in this case, as set forth in the foregoing opinion. The facts presented are not in controversy. Although the officer who arrested the defendant supposed the Ford car which was in his possession was a stolen car, the officer himself stated that upon further investigation he found that it had not been stolen, but that the defendant had purchased it from its -rightful owner, as indicated by the bill of sale he exhibited. It is further admitted that after the defendant had purchased this secondhand car, it became damaged in some manner and the engine was taken out, and the engine block upon which the engine number was stamped was damaged so that it could no longer be used, and the defendant took the engine out of the block and scrapped the block. He then bought a secondhand block from the Sherman Motor Company, which they had taken out of some other car. The number on this secondhand block had originally been No. 7286043 and when the Sherman Motor Company dismantled that engine, the block being a good block and the Sherman Motor Company desiring to sell it for what it might be worth, they made a blank block out of it by filing out that number. It is further admitted that the “original engine number” of the car purchased by the defendant, as stamped on the engine block in that car, was No. 9515119, and when the engine block in that car became damaged and it was necessary to replace it with another block and the defendant did so replace it with the secondhand block purchased from the Sherman Motor Company, on which there was no number when it was so purchased, the defendant stamped on it the “original engine number” of his ear — No. 9515119; — so that when the defendant was arrested and charged with a violation of section 35 of the Motor Vehicle Act [Cahill’s St. ch. 95a, [[36] because of his possession of this car, it bore the same engine number which it had always home. There was, therefore, nothing whatever about the car to confuse its identity, either intentionally or unintentionally.

While the foregoing facts might have been put into this record in better form,, they are there, and, as above stated, the record shows that there is no controversy between the parties on these facts, for it is admitted by counsel for the State that they correctly represent the situation. I, therefore, of -course, do not differ from my associates in the decision of this case so far as the facts are concerned.

Such being the facts of the case, I am firmly of the opinion that a violation of the Motor Vehicle Act has not been shown. This is a penal statute and therefore should be construed strictly, especially in view of the fact that it goes so far as to provide a penalty for the doing of certain specified things, irrespective of intention. In my opinion, a reasonable construction of section 35 of the act, especially when it is considered in compliance with the rule just mentioned, shows that it does not cover the facts presented here.

This section provides clearly that anyone who sells or offers for sale or who shall own or have the custody or possession of “a motor vehicle, the original number of which has been destroyed, removed, altered, covered or defaced,” shall be fined or imprisoned, as therein provided. It seems to me to be too clear to admit of any reasonable doubt that the “original engine number”' of the motor vehicle, possession of which by the defendant is the basis of the prosecution in this case, had not been “destroyed, removed, altered, covered, or defaced,” but, on the other hand, it had been preserved and retained, at some pains, for the secondhand block which the defendant had purchased to replace the damaged block bore no number when it was so purchased, and when the defendant installed it in his car he stamped upon the block “the original engine number” of his motor vehicle.

It is. admitted that if the defendant had purchased a so-called blank block, which had never been used before and installed that in his car, and stamped the “original engine number” of his car upon it, it would have been all right. It is impossible for me to appreciate any. difference between that situation and the one involved by the facts presented here. In either case, the defendant was in possession of a motor vehicle “the original engine number of which” was plainly stamped in the usual and customary place on the engine block of that vehicle. I disagree entirely with the conclusion of the majority as expressed in the last paragraph of the foregoing opinion. The evidence shows- without contradiction that the block which- the defendant purchased from the Sherman Motor Company was- just as much a blank block as if it had» never been used. The defendant testified that the block he purchased from, the Sherman Motor Company “was blank. Had no number on it, no number at all.” There is no evidence to the contrary in the record. One of the police» officers testified that he looked at the car in question and “noticed the numbers had been changed.” He doubtless* saw that the flat spot on which the engine number was stamped bore recent file marks, showing that the number which had been on that block (not the original engine number of this motor vehicle) had been .filed out, because he testified further “after we put the test on it,” another number showed up as having been originally stamped- on that block. And it is admitted that this secondhand block originally bore another number. That, however, has nothing, to do with the question, which is, whether the defendant had in his possession this motor vehicle, “the original number of which” had been destroyed or changed so as to hide the identity of the motor vehicle. Clearly, in my opinion, he had not.

The defendant in this case has been convicted of a violation of this- statute and penalized as provided by that statute, not because he had in his possession “a motor vehicle the original number of which has been destroyed, removed, altered, covered or defaced,” but, as the foregoing majority opinion distinctly says, because he had installed in his motor vehicle a block which had been taken out of another automobile and which had originally been stamped with the original engine number of that automobile. The majority opinion states that if the defendant may do this, “then the identity of the automobile from which the secondhand block had been removed,” would be destroyed and thus the purpose sought to be accomplished by the law would be nullified. In my opinion, that is entirely beside the point. This defendant may not be penalized under this statute except with regard to a motor vehicle found in Ms possession or custody, or offered for sale by him. And this statute may not be applied, so far as the other automobile is concerned, to anybody except one who may offer to sell it or be in possession of it, provided the original engine number of that automobile “has been destroyed, removed, altered, covered or defaced.” This record is entirely silent as to the other automobile, and properly so, for it has nothing to do with the charge against this defendant.

It seems to- me that the foregoing opinion has the effect of re-writing the statute, so as to make it say what the majority believed it might better have provided, to meet what is deemed to have been the intention of the legislature in enacting it. The majority, in my opinion, decided the issues here presented as though the statute provided that whoever sells or-offers for sale or owns or has the custody or possession of a motor vehicle with an engine block in it on which a prior number has been filed off and a new number stamped upon it, shall be penalized, even though the new number so stamped upon the block may be the “original engine number” of the motor vehicle. In my opinion, that is not what this statute provides, even under a liberal construction of it, let alone the strict construction, which, under the law, we should give it.

The purpose of the legislature in passing this statute is clearly set forth in the majority opinion, as our Supreme Court has stated it in the Billardello case, supra. It is impossible for me to appreciate how the admitted facts of this case may reasonably be so construed as to come within that purpose.

For these reasons, I am of the opinion the judgment of the municipal court should be reversed.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Frank A. Hecht, Jr., and Clara K. Hecht, Executors of the Estate of Frank A. Hecht, Deceased, Appellants, v. Joseph Powell, Appellee.
    Gen. No. 30,329.
    1. Sales — sufficiency of tender of performance under option to purchase. Where an offer to sell a certain quantity of whisky at a given price per barrel concluded, “Option good until July 6, 1917,” an acceptance of such offer accompanied by a tender of a certified check for the purchase price, made on July 6, 1917, was within the terms of the offer.
    2. Sales — when breach of contract of sale by vendor shown, Where an offer to sell certain whisky at a stated price per barrel gave the prospective vendee an option to accept the offer “until July 6,” and on that date the vendee accepted and tendered the purchase price in a form to which no exception was then or thereafter taken, but the vendor delayed performance on various grounds from day to day until September 15 and then refused to perform, the time of the breach of the contract, for purposes of computing damages, was September 15, vendee having in effect waived his right of action based upon prior breaches.
    3. Sales — when vendee not obliged to renew tender before claiming default by vendor delaying performance after execution of binding agreement. Where after a prospective vendee had accepted an offer to sell in accordance with its terms and made a sufficient tender of the purchase price, the vendor, while taking no exception to the form or sufficiency of the tender, delayed performance from day to day on various grounds for two months before definitely refusing to perform, the vendee was under no obligation, before claiming a default, to renew his tender or show continued ability to perform.
    4. Witnesses — lender of money to plaintiff for purchase from defendant’s testator as person “directly interested" under Cahill’s St. ch. 51, f 2. Cahill’s St. eh. 51, II 2,' precluding persons “directly interested in the event” from testifying in an action wherein “any adverse party sues or defends as executor,” does not in such an action based upon a contract of sale between the plaintiff and the defendant’s testator, bar testimony by one who had agreed to lend plaintiff, at a legal rate of interest, funds with which to make the purchase, and who had participated in the negotiations between the parties, at the request of the plaintiff, who deemed himself in need of such aid on account of his defective hearing.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed with a finding of fact and judgment here.
    Opinion filed March 10, 1926.
    Rehearing denied March 24, 1926.
    Tenney, Harding, Sherman & Rogers, for appellants.
    Altheimer & Mayer and Morton A. Mergentheim, for appellee; Morton A. Mergentheim, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

At the April term, 1921, the plaintiff, Joseph Powell, filed a claim in the probate court of Cook county, in the estate of Frank A. Hecht, deceased, for $55,200, the alleged difference between the purchase price of 2,300 barrels of whisky on June 29, 1917, and the market price of the whisky on September 15,1917. On March 21,1924, after a hearing, at which evidence was presented, the probate court allowed the claim in the sum of $48,300. From that order there was an appeal by the executors of the estate of Frank A. Hecht, deceased, to the circuit court of Cook county. There was a trial de novo in the circuit court, without a jury, and on March 10, 1925, a judgment was entered for the claimant and against the executors of the estate in the sum of $27,851.85. This appeal is by the executors from that judgment, and the claimant has assigned cross errors. Hecht died on November 20,1920, and the claim against his estate was filed by Powell in the Probate Court on May 7,1921. The claim alleged that it was based on a written offer made on June 29, 1917, by Hecht to Powell, which is as follows:

“I will sell you twenty-three hundred (2,300) barrels of Waterson 1912 & 1913 Whiskies, as evidenced by the receipt of the Pleasure Eidge Park Distilling Company, of Louisville, Kentucky, and will guarantee the whiskies in the warehouse of that company and delivery on presentation of warehouse receipts, storage and taxes to be paid by me to date of sale.

“Price — Twenty-Eight ($28.00) Dollars per barrel, option good until July 6,1917.”

It alleged that Powell accepted the offer and at the time mentioned, and thereafter, was ready, able and willing to perform his part, and so notified Hecht; that Hecht failed to deliver the 2,300 barrels of whisky on July 6, 1917, and thereafter, although delivery was demanded of him and payment tendered, and on September 15, 1917, Hecht notified him, Powell, of his refusal to carry out the contract and deliver the whisky.

Damages were claimed in the total sum of $55,200, being the difference between 2,300 barrels at $28 a barrel, the contract price, and at $52 a barrel, the latter being the market price on September 15, 1917.

At the trial in the circuit court, four witnesses were called by the claimant, Powell, and one by the defendant. The only witnesses who testified on the merits of the controversy were Bosenfield and Guyton, both called by the plaintiff. Powell, being ineligible under the statute [Cahill’s St. ch. 51, ¶ 2], did not testify.

The evidence of Bosenfield is to the following effect: He was an officer of the Sunnybrook Distilling Company. The document in question, the writing of June 29, 1917, he first saw on that date. He had known Powell for about 20 years. Powell, as soon as he got the written offer, came to him, the witness, and asked him if he would finance it, and he told Powell he would. He, the witness, was to advance the money and get Powell’s note, at seven per cent interest, and to receive the whisky receipts as collateral.

Powell asked him, as he, Powell, was very hard of hearing, to go with him to see and speak with Hecht, to act for him, Powell. He and Powell went to Hecht’s office, on July 5 or 6, 1917. He, Rosenfield, had with him a certified check, payable to Hecht, for $64,400, and Powell had the written offer. There were present at that meeting Hecht, Guyton, an employee of Hecht, Powell, and himself, the witness. He, the witness, told Hecht that he was there with Powell, who desired to exercise his option and. was ready to take it up. He had a certified check with him, and tendered it to Hecht. Hecht then? went through his papers and found certificates for about 500 barrels. He said the balance was in the bank and would come over tomorrow, and asked him, the witness, to come over tomorrow; that he had the papers in the Continental Bank. Hecht told him how he happened to have the whisky; that he was financing a man named Flexner, and wanted to get his money out. When he, the witness, showed him the certified check, he, Hecht, did not say anything about the quality of the tender. He, the witness, went back to his office and after talking, the matter over, his brother wrote on the bottom of the written offer the following: “7/6/1917. I herewith - extend the option for the purchase of the above described whiskey at price hereinbefore named until July 14, 1917.” The next day after the first meeting he, the witness, and Powell went again and saw Hecht, and showed him, the memorandum and said to him: “If you can’t deliver today, why don’t you set a date!” Hecht said: “No, I will deliver those warehouse receipts, but I cannot deliver them now”; that he was advised not to deliver “now.” He saw Hecht at various times thereafter about the delivery. After July 6, he talked a number of times with Hecht, at the request of Powell, on the telephone, the first time being about July 8 or 10, then again a week after, and two weeks after, and in August, and Powell used to call Hecht up about every other day. Hecht kept putting him off from day to day, and never set any specific timé. On. one occasion he said he did not have it in shape, to let it go for a while. Powell was with him, the witness, on the occasions when he saw Hecht. The substance of Hecht’s answers, until the middle of September, was VI cannot deliver,” and then about the middle of September he said, “I won’t deliver.” Prior to that Hecht had not said he would not deliver it. Hecht told him on one occasion that his lawyer advised him that he had better not sell the whisky; not to deliver, that his legal position was not such that he could.

The evidence of Guyton, Hecht’s employee, is to the following effect: Powell, whom he had known for many years, came to his, the witness’, desk sometime in July, 1917, and he took him to Hecht’s office. He did not remember exactly the conversation, but he saw the check tendered and heard some conversation about it, and heard Hecht say he could not deliver the whisky.

There was introduced in evidence for the claimant an affidavit of an employee of the National Bank of the Republic, which recited that on July 6, 1917, that bank certified a check for $64,400 drawn upon the Rosenfield account. There was, also, introduced in evidence for the claimant an affidavit of merits, sworn to and filed by Hecht in the municipal court in a suit by the claimant, Powell, against him for the same account. That recites that Powell did not, nor anyone for him, on July 6,1917, or at any time, accept his, Hecht’s proposition; that Powell was not on that date or at any other time, ready, able and willing to carry out the proposition; that he did not, nor any one for him, on July 6, 1917, or at any other time, notify him, Hecht, that he, Powell, was ready, able and willing to perform his part; that he did not at that time or at any time, offer or tender to him, Hecht, any money or thing of value, for the purchase price of the whisky, but abandoned whatever right he had; that he did not, nor any one for him at any time, demand a delivery of the whisky; that he did not on September 15, 1917, or at any time, notify him that he, Hecht, had refused to carry out his contract by delivering the whisky; that on July 6, 1917, he, Hecht, was ready, able and willing to deliver to Powell the warehouse receipts for the whisky and to- carry out the terms of his offer.

(1) It is contended on behalf of the executors of the estate of Hecht, deceased, that the words of the offer, “Option good until July 6,1917” are to. be interpreted to mean that Hecht’s offer was to be accepted before 12 o’clock p. m. July 5, and that an acceptance and tender on July 6 was too late; that as there was no tender of. the consideration or acceptance by Powell prior to July 6, Hecht was not bound to deliver the warehouse receipts, and the claim should be disallowed. That contention involves a determination of the meaning, as a matter of chronology, of the word “until.” The evidence, undoubtedly, establishes — chiefly by means of the affidavit of Huitsing, an employee of the National Bank of the Republic, which recites that on July 6 the Bank certified a certain check drawn upon the account of Rosenfield Brothers & Company in the sum of $64,400 — that the tender was first made to Hecht on July 6. That conclusion is supported, also, by the fact that the claim filed in the probate court stated that the tender was made on that date. It follows, therefore, that if the word “until,” as used in! the offer of July 29, excludes any time beyond July 5, the tender was too late and the offer had lapsed. There is no doubt that the word “until,” without a qualifying context, frequently excludes the day to which it refers. On the other hand, very frequently it is used in such a way as, obviously, to include the day to which it refers. Strictly etymologically, it is a word of exclusion, but as commonly used, it is just as likely to be used in an inclusive as an exclusive sense. Such being the case, it is the duty of the court to give it the meaning which the context, situation of fact and conduct of the parties make reasonable.

Counsel for the executors cite Webster v. French, 12 Ill. 302; Richardson v. Ford, 14 Ill. 332; Byrne v. McCarthy, 221 Ill. App. 139, and a number of decisions of foreign courts. An examination of the decisions of this State does not show, however, that the word “until” is necessarily a word of exclusion. Both the Webster and the Byrne cases disclosed contextual facts which justified concluding that the word was used as one of exclusion. Here, the evidence shows that when the tender to Hecht was made on July 6, Hecht made no objection on the ground that the offer had expired, but looked through his papers and found certificates for about 500 barrels of whisky, and told Powell and Rosenfield that the balance was in the bank, and intimated that he would have them the next day, and, accordingly, asked those making the tender to call on the next day.

The evidence of Guyton, Hecht’s employee, is that he saw the check tendered and heard some conversation about it, and that Hecht said he could not deliver the whisky, and Hecht in his affidavit of merits, which was sworn to and filed by him in the municipal court, set up “that on July 6th, 1917, he, Hecht, was ready, able and willing to deliver to Powell the warehouse receipts for the whisky and carry out the terms of Ms offer.” Such being the circumstances we feel bound to conclude that the acceptance and tender made by Powell on July 6 was seasonable and within the terms of the offer.

(2) It is contended for the executors that if any breach of the contract occurred, it took place on July 6, and that the damages should be measured as of that day; then, on the other hand, it is contended on behalf of Powell, the claimant, that Hecht asked for and received an extension of time to deliver, no definite time of delivery being set, and that the breach occurred only when Hecht refused to deliver.

From June 29 to July 6, there was outstanding merely an offer by Hecht to sell a certain amount of whisky at a certain price. In and of itself, that offer, of course, was not a contract; it might never be accepted; it was in the eyes of the law merely something potential, but not creative by itself, without more, of any legal obligation on anybody. But not being withdrawn and, therefore, presumably still outstanding as an offer, when Powell and Rosenfield went to Hecht on July 6 and offered acceptance, that is execution on Powell’s part, and tendered the certified check for $64,400, there, for the first time, came into being a legal and binding contract, and one of the obligations of that contract was, as to Hecht, that he should at once deliver to Powell the “receipt” or indicia of ownership. As to Powell, having made a good tender, the contract was at once executed in full as to him, and he was without further obligation. It was a unilateral contract, executed on the part of Powell, and with an obligation outstanding on Hecht to turn over the receipt to Powell.

That being the situation, when Hecht then refused the tender of Powell and refused to deliver the “receipt,” he, Hecht, put himself at once- in default, and there was then at once a breach by him, unless contemporaneously the two parties mutually agreed, or from their conduct must be assumed to have agreed that the time for performance should be extended. Although the offer was in writing, the time for performance might be extended by parol. Williston, Contracts, Vol. 2, sec. 856. Globe Brewing Co. v. American Malting Co., 152 Ill. App. 194; Kissack v. Bourke, 224 Ill. 352; Vroman v. Darrow, 40 Ill. 171; Moses v. Loomis, 156 Ill. 392; Baker v. Whiteside, Breese (1 Ill.) 174; Wadsworth v. Thompson, 3 Gilm. 423; Kimball v. Tooke, 70 Ill. 553; Palmer v. Bennett, 96 Ill. App. 281.

The question then arises: What does the evidence show as to an understanding, if any, between them at that time, or as to their mutual conduct in the matter? If it shows no agreement as to the time to which the performance was to be extended, no meeting of minds on that subject, or no waiver of time of performance, then Powell had a right of action for damages for a breach eo instante; that is, at the close of the meeting on. July 6.

The trial judge held that the evidence showed that Powell was justified in assuming that sometime in August, Hecht “was then breaching his contract,” and in computing damages, fixed upon August 10 as the time of the breach. Counsel for Powell claim that the evidence points to September 15 as the time of the breach, while, on the other hand, counsel for the executors insist that if there was any breach, it occurred on July 6, and that the damages, if any, are to be measured as of that day.

The conversation which took place on July 6, at the time of the tender, between Bosenfield and Hecht, shows that after the tender had been made, Hecht went through his papers and found certificates for about 500 barrels, and said that the balance was in the bank and would come over tomorrow, and asked Powell and Bosenfield to come back the next day. And that was the substance of all that transpired on July 6, save that Guyton, Hecht’s employee, testified that he heard Hecht say, though of the day he is not sure, that he could not deliver the whisky. As there is no evidence that Bosenfield or Powell said anything to Hecht after he asked them to come over tomorrow, but that they went away, and by their silence, did not necessarily repudiate Hecht’s proposition, it may be said that those circumstances evidence a meeting of minds to the effect that the time for performance on the part of Hecht was extended to the next day, and that Powell waived his right to claim a breach at that time. The evidence shows that on the next day Powell and Bosenfield went with the memorandum made by Bosenfield’s brother providing for an extension of the offer to July 14; that when Bosenfield showed Hecht that memorandum and asked him the question, “If you can’t deliver today, why don’t you set a date?” Hecht answered, “No, I will deliver those warehouse receipts, but I cannot deliver them now,” that he was advised not to deliver “now.” That shows that Powell was still waiving his right to claim a breach of the contract, and that Hecht so understood it, and therefore that the time of performance was still being extended. The evidence further shows that there were numerous telephone communications between the parties, and that not until the middle of September was it understood between the parties that Hecht would not deliver the receipts provided for in the contract. Bosenfield testified that at that time Hecht said: “I won’t deliver.” It is true that the evidence does not show that there was at any time after July 6 or July 7, any express oral agreement of extension to a particular time, but nevertheless the conduct of the parties does show clearly that there was a mutual understanding that the written date of performance was being waived and the time extended from time to time; that there was no actionable breach until finally, in the middle of September, Hecht categorically said that he would not carry out his contract.

In Globe Brewing Company v. American Malting Co., 152 Ill. App. 194, it was held that an extension or waiver of the time of performance does not have to be shown by an express agreement, bnt that it may be inferred from facts indicating an intention to waive; that is, from the conduct of the parties; and that to bring about an extension or waiver a new consideration is not essential, citing Frost v. Thompson, 18 Ill. App. 410; Vroman v. Darrow, 40 Ill. 171.

If a seller tells a buyer that he cannot deliver on time and asks indulgence, and the buyer, by his conduct, gives it, the default may be said to be temporarily condoned, and if later the seller tells the buyer definitely that he refuses to deliver, there is then as of that time a breach of the contract. In our judgment there was a breach of the contract by Hecht on September 15, 1917, and not until then.

(3) It is further contended for the executors that it was necessary for Powell to make a tender or show his ability to carry out his promise after July 6; that is, before he could require Hecht to make a delivery he must again tender his purchase price, or show his ability to perform. That we think is untenable. Powell had already made a good tender, and the evidence shows that no question arose thereafter during the negotiations with the parties as to- Powell’s ability and willingness to carry out his part of the contract.

(4) It is further contended that under paragraph 2 of chapter 31 (Cahill’s St. 1923), Bosenfield was disqualified as a witness. The statute provides that: “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein * * * when any adverse party sues or defends as * * * executor.” In Stephens v. Hoffman, 263 Ill. 197, the court considered the meaning of the words, “directly interested,” and said that the witness “must have a legal, certain and immediate interest in the result of the cause or in the record”; that “the disqualifying interest must be of some legal, certain and immediate interest, either in the event of the cause or in the record, as an instrument of evidence in support of his own claims in another action.” Ackman v. Potter, 239 Ill. 578; Flynn v. Flynn, 283 Ill. 206; McClure v. Otrich, 118 Ill. 320.

Considering the way in which the court has interpreted paragraph 2 as to what interest disqualified, we are of the opinion that the fact that Bosenfield had agreed to lend Powell the money at a legal rate of interest in order that he might purchase the whisky, and, also, because Powell was hard of hearing, had taken part in the negotiations with Hecht, did not make him so directly interested in the lawsuit in question as to bring him within the inhibition of paragraph 2, chapter 51.

(5) The breach of contract having occurred, in our judgment, on September 15, 1917, the question arises as to the amount of damages that should be allowed. Four witnesses were called to testify to the market price per gallon in September, 1917. Bosenfield said from $0.95 to $1.10; Oberfelder, from $1 to $1.20; Werner from $0.90 to $0.95, and Hinde from $0.95 to $1. With that as the evidence, and taking the minimum figures given, which show an average of $0.95 per gallon, in our judgment the market price on September 15, must be taken at that figure. The evidence shows that an average barrel of whisky contains 48% gallons, making a total, for the 2,300 barrels, of 111,550 gallons. Multiplying that number of gallons by the market value of $0.95 makes $105,972.50, and subtracting from that amount $64,400, the sale price, leaves $41,572.50 as the difference between the sale price and the market price on September 15, 1917, and being, therefore, the amount of the damages for which the claim of Powell should be allowed.

The judgment, therefore, will be reversed with a finding of fact, and, the cause having been tried without a jury, judgment will be entered here in the sum of $41,572.50 in favor of the claimant, Joseph Powell, and against Frank A. Hecht, Jr. and Clara K. Hecht, as executors of the estate of Frank A. Hecht, deceased.

Reversed with a finding of fact cmd judgment here.

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

Finding of fact: We find as a fact that the contract was broken by Hecht on September 15,1917.


text:
    Aaron Goldman and Dorothy Goldman, Appellants, v. Samuel B. Blanksten et al., Appellees.
    Gen. No. 30,356.
    1. Equity — instrument made part of original "bill as included in amended bill subsequently filed. Where in a suit to procure rescission of a contract for the purchase of real estate, the contract is made a part of the original bill, it thereby becomes part of an amended bill subsequently filed by complainants.
    2. Rescission and cancellation — sufficiency of bill. Allegations in a bill to rescind a contract for the purchase of real estate and to secure a refund of earnest money paid to a third person for the benefit of the parties thereto, that at the time the contract was made the title to the property wasi in the third person, although falsely represented by him and the pretended vendors to be in them; that the said vendors falsely represented that they had recently purchased the property for a named sum; that such third party exhibited to complainants a pretended agreement on the part of the said vendors to purchase the property for such sum, thereby knowingly making a false representation; that such false representations were material inducements made to persuade complainants to purchase the property, and that complainants did not know of the falsity of such representations but relied upon them as, true and were deceived by them, held sufficient, if proven, to justify an avoidance of the contract and a decree for the return of the earnest money.
    3. Equity — sufficiency of bill as against demurrer based upon possibility of adequate relief in action at law. Where under the allegations of a bill in equity to secure rescission of a contract for the purchase of real property and for the return of earnest money paid thereon to a third party for the benefit of the parties to the contract, complainants were entitled to a decree for the relief first mentioned as against the defendant vendors, and for the other relief as against the defendant third party, the bill was not subject to demurrer on the ground that the complainants had an adequate remedy at law, although there was then pending an action at law by the said vendors based upon an alleged breach of the contract aforesaid by the complainants.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 10, 1926.
    Rehearing denied March 24, 1926.
    Benjamin I. Morris and Morris A. Mills, for appellants; Morris A. Mills, of counsel.
    Lewis, Adler, Lederer & Kahr, for appellees.
   Mr. Justice Taylor

delivered the opinion of the Court.

The complainants, Aaron Goldman and Dorothy Goldman, having signed a contract for the purchase of certain real estate, and paid $4,000 as earnest money, and having discovered, as it is claimed, that the contract was brought about by the fraud of the defendants, filed an original bill of complaint, then an amended bill, asking that the contract be declared null and void, that the earnest money be returned to them, and that the defendants, the Kolkeys, be restrained from prosecuting a pending suit at law against the complainants for an alleged breach of the same contract. A general demurrer was filed by the defendants to the amended bill of complaint, and sustained, and a decree entered dismissing the bill for want of equity. This appeal is from that decree.

It is alleged in the amended bill of complaint, filed on February 24, 1925, as follows: that on April 9, 1924, the complainants entered into a written agreement with the defendants, Nathan and Sarah Kolkey, to purchase from the Kolkeys certain Chicago real estate for $130,000, subject to about $98,250 of assumed incumbrances; that the complainants deposited $4,000 with the defendant, Blanksten, as earnest money, and agreed to pay, within five days after the title was found to be good, $16,000, and to execute a trust deed securing $11,750 ; that the deposit with the defendant Blanksten was for the mutual benefit of all parties to the agreement.

It is further alleged that they were induced to make the agreement through the fraudulent conspiracy of all three defendants; that prior to and at the time the contract was entered into, the title was in Blanksten; that that fact was known by the Kolkeys but not by the complainants; that the defendants represented to the complainants that the Kolkeys held title to the property; that to defraud the complainants, the defendants engaged certain real estate brokers to approach the complainants with a proposition that they should buy the property in question from the defendants.

It is further alleged that the Kolkeys represented that they had recently purchased the property for $125,000, and offered to prove that fact by showing the complainants the written contract of the purchase, and induced the complainants to go to the office of Blanksten, an attorney at law practicing in Chicago; that the complainants, having little experience in real estate matters, relied upon the representations made by the real estate agents of defendants, and having confidence in Blanksten, went with the Kolkeys, together with the real estate agents, to the office of Blanksten, who showed the complainants what purported to be an agreement, by which the Kolkeys agreed to purchase the property for the sum of $125,-000; that Blanksten' at that time represented to the complainants that that agreement was an actual and bona fide one, and that the consideration for the purchase was $125,000; that that agreement was not an actual and bona fide one, but merely part of a conspiracy by which the defendants intended to defraud the complainants; that Blanksten acquired the property for the consideration of $90,000; that relying upon the representation made by the defendants that it cost the Kolkeys $125,000, and relying upon the representation made by Blanksten that he was not interested in the property, but was merely acting as a disinterested third party, they were induced to enter into the agreement to purchase the property from the Kolkeys for the sum of $130,000, and to deposit with Blanksten the $4,000, to be held by him for the mutual benefit of the complainants and the Kolkeys.

It is further alleged that the defendants, also, represented to the complainants that the rental for the ' premises, as represented by the actual bona fide leases, was not less than $20,500 per year, when, as a matter of fact, it was considerably less; that to defraud the complainants the defendants had entered into leases whereby the stipulated rentals were far in excess of the rentals actually paid by the tenants; that "in order to disguise the fact that the tenants were not paying the rents stipulated in said leases large concessions had been given to the tenants.

It is further alleged that the Kolkeys were not interested in any way in the property in question, but were represented to be the owners for the purpose of furthering the scheme of the defendants to induce the complainants to rely upon the representation of Blanksten as a disinterested party, and to enter into the agreement and to make the above-mentioned deposit with Blanksten, well knowing that the complainants, not having had much experience in real estate matters, would rely upon the representation of an attorney at law, and would thereby be induced to enter into a contract of this kind more readily than if they had known that Blanksten was the owner and held the title to the premises; that the complainants did rely upon the representation of Blanksten and upon his integrity and representation as an attorney at law.

It is further alleged that the complainants had no knowledge that the representations were false, and could not discover it until after an abstract of title was delivered to them, and after it was examined; that an examination showed that the title was in Blanksten; that the complainants then began to look into the matter and upon the discovery that the said leases on said premises were false, and that numerous concessions had been given, and that said Nathan Kolkey and Sarah Kolkey had not purchased said property, or agreed to purchase the same for the sum of $125,-000, or for any other sum, “demanded the return of the earnest money from Blanksten, but it was refused.”

It is further alleged that, in furtherance of the scheme, there was filed in the circuit court a suit by the Kolkeys against the complainants for breach of contract; that that suit is not bona fide, but merely a device to carry out the scheme that the Kolkeys were the actual sellers of the property to the complainants, whereas, the Kolkeys have no interest in the property, and never purchased it, and do not intend to purchase or sell it, but are merely acting on behalf of Blanksten; that said suit was started for the purpose of harassing the complainants.

It is further alleged that the suit in the circuit court was started by the Kolkeys without curing the objections to the title shown in the opinion of title furnished to Blanksten, which opinion shows that certain taxes and assessments, and a judgment (which are recited in detail) were out against the property, and which shows that there were several judgments and decrees against one Samuel B. Blanksten.

The real estate contract, which was made part of the original bill and so is part of the amended bill— Becker v. Billings, 304 Ill. 190 — provides that it shall be the duty of Blanksten to apply the $4,000 of earnest money, “first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second, to the payment to vendor’s broker of a commission of $1,500.00 payable to the Independent Realty Company on the selling price herein mentioned, for his services in procuring this contract rendering the over-plus to the vendor.”

The prayer of the amended bill of complaint asks that the contract be declared null and void; that Blanksten be ordered to return the earnest money, and that the Kolkeys be restrained from prosecuting their suit in the circuit court.

It will be seen from the foregoing that, succinctly stated, it is alleged, inter alia, (1) that at the time, and before the contract was made, the title was in Blanksten, and the defendants falsely represented it was in the Kolkeys; (2) that the Kolkeys represented that they had recently bought the property for $125,-000, which representation was false; (3) that Blanks-ten showed the complainants an-agreement which purported to prove that the. Kolkeys had agreed to purchase the property for $125,000, which was a false representation and known by the defendants to be so; (4) that the representations that were- made were material inducements and were made to persuade the complainants to make the contract; and (5) that the complainants did not know those representations were false, but relied upon them as true, and were deceived by them.

To make out a case of fraud, the complainants must allege that the representations were false; that the defendants knew they were false; that they were material inducements to the making of the contract; that the complainants did not know they were falser and relied upon them as true. Applying those principles, it follows quite obviously, we think, that the allegations of the original and amended bill of complaint made out such a case of active fraud as, if proven, would justify an avoidance of the contract and a return of the $4,000’ of earnest money. Whitney v. Roberts, 22 Ill. 381; Murray v. Tolman, 162 Ill. 417; Woodruff v. Day, 278 Ill. 199.

The question then remains, and it is the one that is chiefly discussed in the briefs of counsel, whether the Kolkeys, having already brought suit at law in the circuit- court against the complainants here, the Gold-mans, for an alleged breach of the contract by them, the bill in this ease, based on fraud, and seeking to avoid the contract in- question and to obtain a return of the $4,000’ earnest money, and enjoin the suit at law, will lie.

It is urged for the defendants that the complainants have an adequate remedy in their defense to the suit at law in the circuit court. The question arises then, whether the chancellor should have taken jurisdiction and enjoined the suit at law — which the complainants allege was not begun in good faith, but merely as a device to. carry out the scheme that the Kolkeys were the actual sellers of the property to the complainants, — on the ground that the suit at law would not afford adequate relief to the complainants. Although fraud, such as is charged in the bill here, may be looked upon as a species of tort, and as such might give rise to an action at law, or to a defense at law, in which compensation could be claimed by way of damages, nevertheless, as stated by Black in his Treatise on Rescission and Cancellation, section 843, “this does not exclude the wider jurisdiction of equity under which a fraudulent transaction may be unraveled, the contract or transfer completely undone, and the parties restored to their former position.” It has been held that a court of equity will take jurisdiction to avoid a multiplicity of suits (Mohr v. Smith, 178 Ill. App. 64); to save a complainant from the expense of double litigation (McHenry v. Hazard, 45 N. Y. 580); where fraud and want of consideration, relied on as grounds for the cancellation of a deed, do not appear on the face of the deed (Summers v. Abernathy, 234 Mo. 156); and where there is want of capacity to make the contract in question. (Jordan v. Kirkpatrick, 159 Ill. App. 231.)

In Metropolitan El. Ry. Co. v. Manhattan Ry. Co., 14 Abb. N. C., (N. Y.) 103, it was held that where the successful assertion of the complainant’s rights required that a third person should be before the court and his rights adjudicated upon, as by the cancellation of a tripartite agreement, and he could not be joined as a defendant in any action at law, the complainant might then maintain a suit in equity. Smith v. Bates Machine Co., 79 Ill. App. 519.

There are many cases of fraud where the parties imposed upon have an adequate remedy at law, and there are many where only equity would suffice. The cleavage between the two is frequently difficult to discover. As there is no standard or rule fixed or formulated, the facts of each case have to be analyzed and considered by themselves. The history of this subject is quite elaborately set forth by Mr. Justice Waterman in Shenehon v. Illinois Life Ins. Co., 100 Ill. App. 281.

The technical question here, is whether there is something of substance which the complainants are entitled to by way of relief which cannot be obtainable in a suit at law. According to. the charges in the amended bill of complaint, the complainants were entitled to a cancellation of the contract on the ground of fraud, and to be reimbursed for the $4,000 paid to Blanksten. Neither of those things can be obtained by the complainants in a suit against them at law in the circuit court. The agreement, although signed only by the complainants and the defendants, was a tripartite one. Having deposited the $4,000 with Blanks-ten for the use and benefit of all, there were created obligations on him to all the others, and corresponding rights in them as against him; and so he has to be considered in equity, at least, as a party to the contract. If the contract were to be declared a nullity on account of the fraud of Blanksten and the Hotkeys, the rights of the complainants could not be satisfactorily decreed, unless the decree ran also against Blanksten, as well as the Kolkeys, but in a suit at law, no matter what the judgment, the contract would still be outstanding and the judgment, whatever it was, would have no effect upon Blanksten. Obviously, therefore, a judgment at law could only be partial and not complete justice, and could not give the complainants what, in reality, according to their charge, they are entitled to. No judgment in a common-law suit could bring about the status quo ante; that could only be accomplished in equity, or by several suits at law; that is, by circuity of action. In equity, for the purpose of administering the remedy against the fraud, Blanksten, who assisted in the fraud, would be considered as a trustee, ex maleficio, and compelled to make restitution. Wheeler v. Reynolds, 66 N. Y. 227. In Smith v. Bates Machine Co., 79 Ill. App. 519, the court said: “The jurisdiction in equity attaches, unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as sufficient as the remedy which equity would afford under the same circumstances.” In 22 Cyc. 798, the law is stated as follows: “The existence of a defense at law does not make an injunction against the action at law improper when for any reason a court of equity is a more suitable tribunal for the determination of the matter or where equitable remedies, unavailable in the court of law, are necessary.” In Bank of Montreal v. Waite, 105 Ill. App. 373, this court quoted with approval the following language from 2 Pomeroy’s Equity Jurisprudence, sec. 699:

“The remedy which equity gives to the defrauded person is most extensive. It reaches all those who were actually concerned in the fraud, all who directly and knowingly participated in its fruits.”

Counsel for the defendants have cited many cases, but, bearing in mind the facts here involved, we do not find any of them in point. In our judgment, on the facts alleged, the complainants did not have an adequate remedy at law, and the demurrer should have been overruled.

It may not be inapt to say, though by way of digression, that it is to be regretted that our procedure is so antiquated that such a question as to jurisdiction may arise.

The decree will be reversed and the cause remanded with directions to overrule the demurrer.

Reversed cmd remanded.

Thomson, P. J., and 0 ’Connor, J., concur.


text:
    Morris Shapera, Plaintiff in Error, v. Livingston W. Fargo and Peter M. Hoffman, Sheriff, Defendants in Error.
    Gen. No. 30,412.
    1. Replevin — sufficiency of evidence to show estoppel of plaintiff to claim title to replevied property. Plaintiff in an action of replevin was estopped to claim title to a machine replevied from a judgment creditor of a corporation of which he was president where he had permitted the machine to be displayed by the corporation in its show rooms under circumstances calculated to induce creditors and others to believe that title to the machine was in the corporation.
    2. Estoppel — essential elements of estoppel in pais. An estoppel in pais arises whenever one, by his conduct, affirmative or nega
      tire, intentionally or through culpable negligence induces another to believe and have confidence in certain material facts, and the latter, having the right to do so, relies and acta thereon, and is, as a reasonable and inevitable consequence, misled to his injury.
    Error by plaintiff to the Municipal Court of Chicago; the Hon. C. F. McKineet, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 10, 1926.
    Brown, Brown & Brown, for plaintiff in error.
    Winston, Strawn & Shaw, for defendants in error; James H. Cartwright and Paul H. Moore, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

The defendant, Peter M. Hoffman, sheriff, having levied upon a cloth spreading machine under a judgment in favor of the defendant, Livingston W. Fargo, and against the Victor Electric Automatic Cloth Spreading Machine & Manufacturing Company (hereafter called the Victor Company), for the sum of $1,770, and the plaintiff, Morris Shapera, having, thereafter, on December 11, 1924, replevied the cloth spreading machine, there was a trial of the replevin suit, and on March 25, 1925, a judgment by the trial court, without a jury, finding that the right to possession of the property replevied was in the defendants. Pursuant to that finding, judgment was entered that the defendants have and recover the possession of the property, and that a writ of retorno habendo issue to that effect. This appeal is from that judgment.

It is the theory of the plaintiff that he bought the machine in question from one Harry Teo on March 26, 1923, for $1,500, and that, although he leased the use of it to the Victor Company, and it was set up for display purposes on premises rented from the defendant by the Victor Company, it remained and was his personal property at the time the levy was made by the sheriff under the execution.

On the other hand, it is the theory of the defendants that they rented certain space in a building at 304 "West Jackson Boulevard, Chicago, to the Victor Company, of which the plaintiff was president; that the machine in question was installed in the premises which were rented; that it had conspicuously upon it two separate metal plates, one about four inches long and two inches wide, the other two and one-half inches long by one inch wide, riveted to the metal part of the machine and in plain sight, and bearing the words, respectively:

“PROPERTY OF VICTOR
ELECTRIC CLOTH SPREADING MACHINE CO.
CHICAGO, ILL.”
“VICTOR CLOTH SPREADING MACHINE CO.
Pat’d U. S. A. and in Foreign Countries.
Other U. S. A. and Foreign Pat’s Pend.”

that the plaintiff permitted the Victor Company to hold itself out as the owner of the machine in question; that the defendant Fargo permitted the Victor Company to remain in the premises after it was in arrears in rent, upon the faith of the apparent title of that company in the machine — for the display of which the premises involved were rented — and that at the time of the levy, the plaintiff was estopped from asserting or claiming title to the machine.

The plaintiff, Morris Shapera, who claimed the machine as his own property, and who was president of the Victor Company, the judgment debtor, did not appear as a witness.

The testimony of his brother, Frank E. Shapera, was substantially as follows: On March 26, 1923, a contract in writing, called a conditional sale agreement, was made between the plaintiff and Harry Yeo, whereby the latter sold to the former, at Muncie, Indiana, for $1,500, one cloth spreading machine and 70 feet sectional table, and all appliances connected therewith, which machine, was manufactured by Yeo under the Shapera patent. On the same day, the plaintiff gave to Yeo a note for $1,500 for the machine in question, which note was paid on August 17, 1923. Subsequently, the machine was brought to Chicago for display purposes, and set up on the premises at 304 West Jackson Boulevard. On February 23, 1924, a written agreement was made between the plaintiff and the Victor Company reciting that the corporation was organized under the laws of the State of Delaware for the purpose of manufacturing, leasing and selling cloth piling machines, and giving the Victor Company, as license, sole and exclusive right to- manufacture, sell and lease cloth piling machines made under certain patents. That contract was signed by the plaintiff, Morris L. Shapera, and the Victor Company, by Morris L. Shapera, president. He, the witness, was secre-' tary of the Victor Company. The cloth spreading machine in question was the only one of its kind that was built. It was brought to Chicago on a truck from Muncie, and Mr. Shapera put it up on the'premises rented at 304 West Jackson Boulevard, for display purposes, and it was there for something over a year. It was turned over to the Victor Company under the contract between that company and the plaintiff. His brother, the plaintiff, visited the premises on West Jackson Boulevard, where the machine was set up, about half a dozen times. It had a long table about 60 feet long and about 60 inches wide, and extended practically the full length of the floor of the premises that the company occupied at 304 West Jackson Boulevard. There was a stamp on one of the gears showing that the machine was patented, or that a patent was applied for. When, asked if there was a steel plate on the machine with the words “Property of the Victor Electric Automatic Cloth Spreading Machine Company,” he answered that he never noticed it; that he did not know, he never saw it. He saw the machine on the premises 20 or 30 times, and looked over the machine when there were people there who were interested, and if there was anything on the side of the machine he would have seen it.

There was introduced in evidence a memorandum of sale showing that on March 26, 1923, Teo sold to the plaintiff the cloth spreading machine for $1,500. It also showed that on August 17,1923, it was paid for.

It was admitted that the defendant, Fargo, had a judgment against the Victor Company in the sum of $1,770, and that an execution was taken out and levied upon the machine in question.

At the close of the testimony of Frank E. Shapera, the plaintiff rested.

The defendant, Fargo, offered in evidence the testimony of Lowenthal, at one time secretary of the Victor Company; Mateer, who acted as an agent' for Fargo in regard to the collection of rents for the property in question, and Grolde, who acted at one time as attorney for the Victor Company.

The evidence of Lowenthal is to the effect that he was secretary of the Victor Company after its organization ; that one Donahue, one of the stockholders and organizers of the Victor Company, gave him $2,000, and that of the $2,000 he gave $1,000 to the plaintiff, and used the other for the purpose of organization; that he deposited the $2,000 check to his own account; that he did not know whether the corporation owed the plaintiff any money at that time or not; that he gave the plaintiff a check in person-for $1,000 on or about March 26, 1923; that he generally followed Donahue’s directions; that at one time he was a stockholder, but did not get a certificate of stock; that the company started to operate on the theory that it would not sell but give a license on a royalty basis; that the plaintiff never made a statement to him as to the title of the machine.

The evidence of Guide is to the effect that he was the attorney for the Victor Company, and had certain communications as such with the secretary of state concerning the corporation; that an application to' sell securities for the Victor Company was never filed nor accepted, although one was prepared in his office; that the only assets, as far as he knew, that the Victor Company possessed was an exclusive license agreement to manufacture machines according to1 various patents that were issued; that the application was signed by the plaintiff and his brother.

In the application, which is signed and sworn to by the plaintiff and his brother (April 30, 1924), it is recited under the statement of consideration received for the outstanding securities, after reciting certain shares of capital stock, “also dyes, cuts and cloth spreading machine,” and under the title, “Detailed Statement of Proposed Plan of Business of Issuer,” “Issuer has one machine in operation and expects shortly to begin the manufacture of a large number of these machines, and thereafter immediately lease the same to interested parties,” and on the balance sheet showing assets, there is the item, “Machinery and equipment, $1,650.00.” That exhibit also shows that 25,000 shares of the common stock, of the par value of $25 per share, were issued to the plaintiff in consideration of a certain license agreement. The application referred to was prepared by him and sent on to the secretary of state in order to get his opinion and approval; but the plans were changed because the secretary of state refused to issue the license based upon the exclusive license agreement, and demanded that the patent be assigned to the company.

The evidence of the defendant Fargo is to the following effect: That as trustee of the building at 304 West Jackson Boulevard, on August 30, 1923, he leased, in writing, to the Victor Company a part of the premises at 304 West Jackson Boulevard; that very frequently he made an inspection of the machine in question, and whenever he looked at it he saw the marks of identification on it concerning the title; that metal labels, conspicuously placed, were affixed to the machine; that one of them bore the words: “Property of the Victor Electric Cloth Spreading Machine Company, Chicago, Ill.,” and the other referred to certain patents; that he frequently spoke to the Victor Company “people” on “the subject matter of this suit,” while it was in the premises which were leased; that the company began to get in arrears as to the rent; that he let the rent run in arrears fro'm June to December, 1924, before'beginning suit; that no rent was paid from June until December, 1924; that he then began suit against the company and obtained judgment. .

The evidence of Darre, the janitor of the building, is to the effect that the Victor Company occupied the fourth floor, and had installed there a cloth spreading machine, which had two identifying marks, one riveted on one of the running boards, and the other on the side of the machine; that he was not sure that the plates were on there at the time they first moved into the premises, but knew that they were on there right after, when they started running.

The evidence of Mateer, who acted as agent for the defendant and collected the rents for the property in question, is to the effect that it was leased to the Victor Company; that he visited the premises in order “to obtain the license number of the property”; that he inspected the machine and found two metal plates on it, made a copy and diagram of them in the latter part of 1924, and gave the information to the defendant; that he made the copy on the premises from what was on the machine; that one was on the center of the drum, securely fastened, and was four by two inches; that the other was a little lower down, plainly visible; that the latter was two and a half inches long by one inch wide; that the larger plate contained the words, “Property of Victor Electric Cloth Spreading Machine Co., Chicago, Illinois”; that he was on the premises once before, sometime in November, 1924; that the machine was there at that time; that at that time the place was closed and the defendant had the keys.

There was offered in evidence the minutes of the meeting of the board of directors of the Victor Company, held on July 9, 1923, showing the acceptance by the Victor Company of an offer by the plaintiff to assign certain patents to the Victor Company in consideration of 20,000 shares of common stock, of the par value of $25. Those minutes, also, show that the president and secretary were authorized to secure premises “for the purpose of displaying the machine in Chicago.”

The foregoing being the evidence as disclosed by the record, the question arises whether the plaintiff proved that he had title to, and the right to possession of the machine, and whether if he did prove such title and right, his conduct was such that it showed he was estopped from asserting his title as against the levy of the defendant. The trial judge having found for the defendant, we are asked by the plaintiff to hold that his judgment was against the manifest weight of the evidence.

Does the evidence prove that the plaintiff was es-topped to claim that his rights of ownership were paramount? The machine was brought to Chicago on a truck from Muncie, Indiana, and put upon the premises in question for display purposes, and was there considerably over a year. The evidence of the brother, though slightly ambiguous, intimates that it was put up by the plaintiff. The machine occupied practically all the space which was leased by the defendant to the Victor Company. The defendant, as trustee of the building, leased the space in question to the Victor Company on August 30, 1923. His evidence is that he frequently made an inspection of the machine and that whenever he looked at it he saw the marks of identification on it concerning the title; that it had a metal label on it which bore the words, “Property of the Victor Electric Automatic Cloth Spreading Machine Company, Chicago, Ill.” The evidence is that no rent was paid from June to December, 1924, and that he then began suit against the Victor Company, and obtained the judgment, by reason of which the levy was made.

Mateer, the defendant’s rent collector, and Darre, the janitor of the building, both corroborate the defendant as to there being two identifying plates on the machine. Mateer said that in December, 1924, he copied both plates, and that the larger one contained the words, “Property of the Victor Electric Cloth Spreading Machine Co.” He had been on the premises once before, some time in November. He further said that he told the defendant what he had found concerning the plates. There is practically no evidence contradicting that of the defendant, Mateer and Darre, save the ambiguous testimony of Frank E. Shapera, the brother of the plaintiff. When he was asked about a steel plate on the machine with the words, “Property of the Victor Electric Cloth Spreading Machine Company,” he answered that he never noticed it; that he did not know; he never saw it, although he saw the machine on the premises 20 or 30 times.

In our judgment, the evidence referred to quite obviously establishes an estoppel as against the plaintiff. The oft quoted words of Lord Coke that “a man’s own act stoppeth up his mouth to allege or plead the truth,” are still good law. A host of authorities, modern as well as ancient, might be cited in their support.

It may be said as a general statement of law that an equitable estoppel or estoppel in pais which is now available at law as well as in equity, arises whenever one by his conduct, affirmative or negative, intentionally or through culpable negligence, induces another to believe and have confidence in certain material facts, and the latter having the right to do so, relies and acts thereon, and is, as a reasonable and inevitable consequence, misled, to his injury.

The cloth spreading machine was set up solely for the purpose of display and examination; it occupied, alone, substantially all the rented space, and showed conspicuously, judging from the size of the metal placard, that it was desired by its possessor that all who saw it should be notified and informed that it was “The Property of the Victor Electric Cloth Spreading Machine Co.” It may be justly asked, why the special emphasis as to the ownership, made by the plaintiff and the Victor Company, if it were not true? And it then may be asked, also, why now the seeming stultification and repudiation of such a public representation? It is not a case where the acts in pais were secretive or casual or ambiguous, or really controverted, but, on the contrary, one where there was a voluntary, public, categorical announcement of ownership, made, undoubtedly, with the knowledge of the plaintiff, who was at the time, himself president of the Victor Company. Even admitting that the machine was the plaintiff’s property when it was installed, and that it remained his as regards his personal contractual relations with the Victor Company —although the evidence gives rise to a suspicion to the contrary — it does not follow, because rent had accumulated and the Victor Company became in arrears, that he was then entitled as regards third persons, among them the landlord, to repudiate the holding out, of which he knew, and successfully claim personal ownership. It is not claimed by the plaintiff that the Victor Company was wrongfully in possession. Its right to possession is admitted by the plaintiff. That differentiates these facts from those in Drain v. LaGrange State Bank, 303 Ill. 330. In that case, however, Mr. Justice Cartwright said: “The estoppeldoes not depend upon where the actual title is, but rests upon the act of the real owner, which precludes him from disputing the existence of a title which he hag caused or allowed to appear to be vested in another. If a vendor of a chattel delivers it to a vendee or allows him to have possession of the chattel before paymerit of the purchase price and to have all the indicia of ownership, retaining, however, a secret lien for payment, he cannot assert his right against a judgment creditor of the vendee without notice before a levy is made. An innocent purchaser will be protected, without regard to the terms of the contract of sale, where the appearance of ownership is in one while the title is really in another or there is a secret lien. (Van Duzor v. Allen, 90 Ill. 499; Chickering v. Bastress, 130 Ill. 206; Union Stock Yard and Transit Co. v. Mallory, 157 Ill. 554.) ” Charles Moe Co. v. J. H. Logue Co., 108 Ill. App. 128.

The plaintiff knew whose property it was; he permitted the placard announcing ownership in the Victor Company to be exhibited on the machine; it must be presumed that he exhibited it for the purpose of giving out information; he knew of the lease and the accrual of rent; he is presumed to have known the normal inference the landlord would draw from the placard on the machine; the landlord knew of the representations, and saw the placard frequently and had the right to infer, and may be presumed to have inferred, that the representation of ownership was true; and having that knowledge he allowed the rent from June to December, 1924, to become in arrears without distraint or suit. Such being the situation, it seems but reasonable and equitable to hold that the plaintiff is estopped, and is not now entitled to stultify himself and repudiate the representations which he either made or connived at, and so commit a fraud by taking advantage of his own wrong.

Further, in .addition» to the evidence referred to on the subject of estoppel, there is, also, some significant evidence in certain statements in the tentative application which was sent to the secretary of state for approval, and which was signed and sworn to by the plaintiff and his brother, which evidence is strikingly consistent with the announcement of the placard that the property actually was that of the" Victor Company. In that document, where the consideration is stated, are the words, “also dyes, cuts and cloth spreading-machine.” That representation would suggest that the plaintiff either had turned over or intended to turn over the title and possession of the machine to the Victor Company, but apart from that, and the question of actual ownership as between the plaintiff and the Victor Company, we are of the opinion that, on the question of estoppel, the evidence against the plaintiff is so strong and overwhelming that we would not be justified in overriding the judgment of the trial judge.

Counsel for the plaintiff has cited Peters v. Smith, 42 Ill. 417; Drain v. LaGrange State Bank, 303 Ill. 331; Kiewel v. Tanner, 105 Minn. 50, and other cases in support of the contention that the evidence did not establish an estoppel. We have examined the cases referred to, but we do not find that any of them holds contrary to what we have above set forth. Williams v. Fletcher, 129 Ill. 356; Cowdrey v. Vandenburgh, 101 U. S. 572; O’Connor v. Clark, 170 Pa. 318, 32 Atl. 1029. Bigelow’s Law of Estoppel, p. 556, 5th Ed.

Considering, therefore, what the record discloses and what the law is, we feel bound to hold that the judgment of the trial judge was entirely justified. Finding no error in the record, the judgment will be affirmed.

Affirmed.

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