text:
    Union Savings Bank of Eau Claire, Wisconsin, Appellant, v. Frank Milhening, Appellee.
    Gen. No. 31,550.
    1. Appeal and error — necessity of including depositions and legal propositions in bill of exceptions. Depositions used in a cause upon the trial and legal propositions then offered should be included in the bill of exceptions instead of the common-law record.
    2. Negotiable instruments — discharge of indorser by failure to serve notice of dishonor. The indorser of a note is discharged by failure to give him notice of dishonor as required in Cahill’s St. ch. 88, ¶ 110, on the evidence showing that he did business in the same building where notice of protest was served on the maker but no inquiry was made of his whereabouts, and that the notice of dishonor was mailed in an address in another State at which he had never lived and done business.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Julius C. Kern, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 19, 1927.
    Mack & Lowes, for appellant.
    Carleton H. Pendleton, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action of assumpsit on a promissory note, brought by the indorsee, Union Savings Bank of Eau Claire, Wisconsin, against Frank Milhening, the appellee herein, as indorser. The note was dated Chicago May 23, 1921, payable one year after its date to the order of Henry Laycock, for $1,000, at 135 South State Street, Chicago, with interest at the rate of 6 per cent per annum. The note was made by Elmer E. Freeman and Frank Milhening, appellee, indorsed the note on the day of its date, and before its delivery to Laycock, and Laycock subsequently indorsed the note to the plaintiff hank.

The cause was tried before the court without the intervention of a jury. There was a finding and judgment for the defendant, and plaintiff prosecutes this appeal in an effort to reverse that judgment.

There are two reasons why the judgment must be affirmed. In the first place the hill of exceptions does not, nor does it purport to, contain all the evidence, hut omits several parts of it. Depositions used in the cause upon the trial and certain propositions, of law offered at the trial are not included in the hill of exceptions. Such documents are found in the common-law record, when they should be in the bill of exceptions.

In People v. Lindner, 262 Ill. 223, it was held that evidence heard on the trial must be incorporated into the bill of exceptions, and that such evidence does not become a part of the record by the clerk incorporating the same in the common-law record. To the. same effect is People v. Ellsworth, 261 Ill. 275.

And secondly, the failure to give defendant notice of protest as required by the Negotiable Instruments Act.

Section 88 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 110, provides that when a negotiable instrument has been dishonored for nonpayment, notice of dishonor must be given to each indorser and every indorser to whom such notice is not given is discharged.

The notice to Milhening, defendant, was sent to him addressed at Ban Claire, Wisconsin, a place where be never lived or did business. The note was payable at 135 South State Street, Chicago, and it appears uncontradicted by defendant’s evidence that he did business at the time the note was made and indorsed by him and at the time of its protest for nonpayment at 135 South State Street, Chicago, the same address as the maker of the note.

Notice of the protest of the note for nonpayment was mailed to defendant at Ban Claire, Wisconsin, and having given such notice erroneously, plaintiff made no attempt thereafter to discover the real address of defendant. It is in evidence by defendant that his name and address were in the city and telephone directories. When the notary served the notice of protest upon the maker of the note at 135 South State Street, Chicago, he could have with the exercise of the slightest diligence discovered that defendant’s place of business was in the same building, but no inquiry or attempt was made to discover the address of defendant by the notary or plaintiff, or anyone else. This dereliction of duty discharged the defendant from liability as indorser of the note in suit under the Negotiable Instruments Act, supra.

For failure to give the notice of protest to-defendant, as required by the Negotiable Instruments Act, supra, and for the additional reason that the bill of exceptions is informal and insufficient, as heretofore pointed out, the judgment of the circuit court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Bertha Frey, Appellee, v. City of Chicago, Appellant.
    Gen. No. 31,574.
    1. Municipal corporations — effect of admission of service of notice of injury. Upon trial of an action against a city for personal injuries, the admission of the city’s counsel that the notice- of personal injury was served, and signed by parties authorized to accept service on. the part of the city, makes the notice admissible and waives proof of service and the official capacity of those accepting service.
    2. Appeal and error — preserving for review proceedings in trial court to correct record. After an appeal is perfected by a city from a judgment against it in a personal injury action and the bill of exceptions is signed, unless the proceedings on plaintiff’s motion before the trial court to correct the record by showing plaintiff’s correct address in the notice of injury are signed by the trial judge as a bill of exceptions or certified by him in some manner, they are not preserved for review, and plaintiff’s cross appeal thereon is of no effect.
    3. Municipal corporations — necessity of correct addresses in notice of personal injury. A notice of personal injury, served upon a city, must be proved in the action based thereon to contain the correct addresses of the injured party and of her physician, as a statutory precedent to the right to maintain the action.

      Appeal by defendant from the Circuit Court of Cook county; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed.
    Opinion filed October 19, 1927.
    Rehearing denied November 4, 1927.
    Francis X. Busch, Samuel A. Ettleson, Corporation Counsel, John J. Kelly and William D. Saltiel, City Attorneys, for appellant; Daniel V. Gallery, Assistant Corporation Counsel, of counsel.
    Morse Ives, H. H. Patterson and C. C. Bodenstab, for appellee; H. H. Patterson, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action for damages for personal injuries suffered by the plaintiff in being tripped and falling on a defective sidewalk in the vicinity of the northeast corner of the intersection of South Michigan Avenue and East 110th Street in the City of Chicago.

There was a trial before court and jury, and a verdict in favor of plaintiff, assessing plaintiff’s damages at the sum of $12,000. At the conclusion of plaintiff’s case the defendant moved for an instructed verdict. This motion was denied, and the defendant standing by its motion declined to introduce any evidence in defense of the action. After overruling the defendant’s motions for a new trial and in arrest of judgment, there was a judgment upon the verdict for $12,000, from which judgment defendant prosecutes this appeal and asks a reversal.

Before the commencement of the action plaintiff, by her attorneys, gave what they claimed to he a notice required by the statute to the city authorities regarding the accident, which notice is in the following words:

“You Are Hereby Notified that Bertha Frey, a widow, sustained personal injuries on, to-wit, October 18th, 1923, at about 7:00 P. M.; that the said Bertha Frey, a widow, resides at 228 West 110th Place, Chicago, Illinois. The accident on account of which said injuries were received happened at a point on the side walk on the north side of 110th Street in the City of Chicago and about eighty-three feet east of the east curb line at the north east corner of the intersection of said 110th Street and Michigan Avenue in Chicago, and about sixty-eight feet west of the curb line of alley, immediately east of Michigan avenue said alley running north and south; that at the point of injury, aforesaid, the cement sidewall? was broken said break consisting of a large crack approximately three inches wide and running the full width of said sidewall?. Because of said break, said sidewalk is raised to such an extent at one point and lowered to such an extent at another point as to cause said Bertha Frey, a widow, to trip and fall; that she was greatly injured as a result of the same; that certain bones of her body were fractured; that she was treated for her injuries by Dr. Harry H. Beil, whose address is 11431 South Michigan avenue, Chicago, Illinois; that on the account of said injuries a cause of action has accrued for Bertha Frey a widow and she is about to bring an action against the City of Chicago, Illinois, to cover damages on account thereof.”

This notice was admitted in evidence over the objection of defendant. Counsel for the city stated that “We will admit the notice was served as it purports to be and that the signatures thereon contained are the signatures of the officers.

“The Court: Who were authorized to accept?

“Mr. Fleck: Yes,'we are not questioning anything on that.”

We think that the admission of counsel for the city properly made the notice admissible in evidence and waived proof of service and the official capacity of the person accepting service of the notice on behalf of the defendant, City of Chicago.

We restrict our decision of this case to the questions arising as to whether the proof sustains the material statements in the notice, and more particularly as to the addresses of the plaintiff and her attending physician, Dr. Harry H. Beil, stated in the notice.

In this record there are three places testified to as the residence of the plaintiff. In the notice it is stated to be 228 W. 110th Place, while it is testified to that plaintiff lived at 228 E. 110th Place. On the trial the plaintiff swore that she lived at the time of the accident at 10920 Edbrooke Avenue, Chicago. It appears from the testimony that plaintiff, who was dependent on her family for support, lived at times with her son at 228 E. 110th Place, and at other times she lived with her daughter, Mrs. Solomon, who resided at 10920 Edbrooke Avenue.

As to the residence of Dr. Harry H. Beil, the attending physician, he swore that he resided at 10815 South Park Avenue, Chicago; that when he first saw plaintiff he found her lying in bed at 10920 Edbrooke Avenue. In the notice Dr. Harry H. Beil’s address is given as 11431 South Michigan Avenue. There is no testimony in the record as to whether either of the addresses, the one in the notice or the one in the testimony of Dr. Beil, was his office or his residence.

Plaintiff made a motion before the trial judge to correct the record after the appeal had been perfected and the bill of exceptions signed, which motion was denied by the court on the ground that it had no jurisdiction to make any other record in the case as the term had passed and the case had gone to the Appellate Court in due course. The motion was made after the passing of the term of court at which the case was tried and after the bill of exceptions had been signed and approved by the trial judge.

While plaintiff has filed in this court what purports to have been the proceedings had before the trial judge on the motion to amend the record, it is not signed by the trial judge as a bill of exceptions, or certified by him. in any manner, and therefore the cross error assigned by plaintiff, on the rulings of the court, is of no force or effect, and does not preserve such proceedings for review in this court. Therefore, the cross error so assigned is not entertained by this court, although we have in fact examined the proceedings before the trial judge, as thus presented, and find the court’s ruling on that motion to be without error.

The notice given and in evidence is not sustained by the proofs, as neither the plaintiff’s nor the attending physician’s address is correctly given. In Swenson v. City of Aurora, 196 Ill. App. 83, the court said that “the most serious defect in the notice in question is the failure of appellee to state his place of residence. The residence given in the notice was not his and never had been. The omission of the place of residence is clearly fatal to the validity of the notice. And it is clear that this defect cannot be cured by the showing that he resided at some other place on the same street, for it is the very fact that he resided at some other place than the one mentioned in the notice that rendered the notice invalid. Unquestionably, the purpose which the Legislature had in view in requiring the notice to state the name and residence of the party injured and the name and address of the attending physician was to give cities, towns and villages in cases of this kind correct information, upon which they could properly pursue their investigation, to ascertain the extent and nature of the injury suffered by the person injured, which in many cases might become, as it did on the trial of this case, an important and controverted question. It is evident, therefore, that a definite and correct statement as to the residence of the party injured, in the notice, is of co-ordinaite importance with a correct and definite statement of the place where the injury occurred.”

The court further stated: “courts of this State have always insisted on the necessity of a strict compliance with the requirements of this statute, concerning the notice under discussion. The statute is mandatory, and the giving of a notice, such as the statute prescribes, is a condition precedent to the maintenance of a suit for personal injury against a city, village or town; and the giving of such notice must be averred and proved, otherwise the suit will be dismissed and a recovery barred. Erford v. City of Peoria, 229 Ill. 546; Ouimette v. City of Chicago, 242 Ill. 501; Schoeler v. City of Rockford, 160 Ill. App. 217.

“For the reason stated the statutory notice given to appellant in this case is clearly and fatally deficient, and the judgment must therefore be reversed.”

As the giving of the statutory notice is a condition precedent to the right to maintain the action, such statutory notice in every material matter must be proven upon the trial as stated therein. From what we have already said, it appears that the proofs failed to sustain the statement made in the notice concerning the residence of either the plaintiff or her attending physician.

The failure to prove the residence of plaintiff and her attending physician at the places set forth in the notice inhibits us in the decisions, supra, from sustaining the judgment of the trial court.

The judgment of the circuit court is therefore reversed.

Reversed.

Taylor, P.J., and Wilson, J., concur.


text:
    Nick Selamakos, Appellee, v. Victory Ice and Ice Cream Company, Appellant.
    Gen. No. 31,583.
    1. Corporations — general issue as admitting existence of. In assumpsit against a corporation for services, the plea of the general issue admits defendant’s corporate existence at the time of the contract of hire.
    2. Corporations — necessity of proving charter date. In assumpsit for services to a corporation, the defendant cannot prove the contract of hire was made before its corporate organization unless it places in evidence the charter or shows when it. was granted.
    3. Trial — when verdict for less than claim, is inconsistent with proof. In assumpsit for services, where the only evidence in support of the alleged contract on which the action is based is that given by plaintiff and his evidence is directly contradicted by the evidence of defendant’s officers denying that any such contract ever existed, the verdict should be either for the plaintiff for the amount claimed, or for the defendant, and a verdict for plaintiff for a part of the amount claimed is inconsistent with the proof and will not be permitted to stand.
    4. Trial — verdict for half plaintiff’s claim as showing compromise. In assumpsit for services, a verdict for half plaintiff’s claim indicates lack of due consideration of the evidence by the jury and a compromise verdict.
    Appeal by defendant from the Superior Court of Cook county; the Hon. William J. Lindsay, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed October 19, 1927.
    Kirkland, Patterson & Fleming, for appellant; David Jacker, Joseph H. Pleck and George T. Townley, of counsel.
    B. M. Shaffner, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This action is assumpsit, and the declaration is encompassed within one count; claim is for work and services plaintiff claims to have bestowed on defendant at its request prior to September 25, 1921; the ad damnum was fixed at $1,500. By the affidavit of claim filed with the declaration it is stated that plaintiff’s demand is for wages for work and services performed for defendant as chauffeur and mechanic from November, 1919, to September 25, 1921; and that there is due to plaintiff the sum of $1,500. To this declaration defendant interposed, first, a plea of the general issue, and second, a plea of payment, which added nothing to the plea of the general issue. With the foregoing pleas and affidavit a plea of set-off was filed for $22.84. Nothing is urged here regarding the plea of set-off.

There was a trial before court and jury with a verdict, finding the issues in favor of plaintiff, with damages assessed at $1,020. Motions for a new trial and in arrest of judgment were overruled and judgment entered upon the verdict, from which defendant prosecutes this appeal and asks for a reversal.

Plaintiff contended that he worked for defendant from October 1, 1919, to June 1, 1920, under a contract with Gust Chelamengos, the president of the defendant, at an agreed salary of $60 a week, and that he started to work October 1, 1919, and continued to work for defendant until June 1, 1920; that among other things he drove an automobile for defendant; that he received no money during his employment for his work, and quit June 1, 1920.

Defendant contends that the corporation was not in being at the time of the making of this alleged contract, and therefore was not bound thereby, claiming that the charter of the corporation was dated October 19, 1919.

There are two reasons why such contention cannot be considered on this appeal: First, the plea of the general issue admits the existence of the corporation, and second, there is no evidence in the record as to when the charter "was issued to defendant. All that was said in regard to it was by counsel for defendant, who said he had the charter in his possession, and that October 19, 1919, was the date of its issue. The charter was never put in evidence, and therefore in the eye of the law there is no evidence in this record as to the date when the charter was granted to the defendant corporation.

" In the first place it was incumbent upon the plaintiff to prove his contract by a preponderance or greater weight of the evidence. This he has utterly failed to do. He tendered no proof to sustain his contention that he made an oral agreement with the president of the defendant company to serve it at a wage of $60 per week. The president of the corporation denies in toto that he made any such agreement, or that any conversation was had between him and plaintiff in regard thereto. . It also appears that one Richard A. Keller, who was secretary and treasurer and general manager of the defendant corporation, was the only person authorized to make contracts of employment for defendant. He denies that any such agreement was made. It does, however, appear that plaintiff was employed by defendant in June, 1920, as an automobile mechanic, at a salary of $60 a week, and that he continued in such employment until September, 1921, .when he quit of his own accord, and it is conceded that during that time he was regularly paid his salary, and no claim is made for compensation by plaintiff during that period of employment. It is also without contradiction that plaintiff never made any demand upon the defendant or any of its. officers for any salary claimed from October 1, 1919, to June 1, 1920, and the only demand ever received by defendant of plaintiff’s claim was a letter dated October 2, 1924, from his lawyer, claiming that there was due to plaintiff the sum of $2,040, and threatening suit unless the claim was paid. It is also in evidence that plaintiff, during all of the time he claims wages from defendant, was employed by the Victor Auto Works at Chicago.

Plaintiff left for Greece September 28, 1921, and returned to Chicago September 1,1924. Plaintiff after his return from Greece applied to the company for employment and was refused, because there was no vacancy in the position which he applied for, and defendant was unwilling to discharge a working employee in order to give a job to plaintiff.

While there is a great deal of testimony regarding plaintiff’s having been seen driving automobiles with officers of the defendant company, and eating in restaurants during the time for which he makes the claim in suit, yet there is not one word of corroboration of his testimony that he ever had a talk with defendant’s president in regard to his going to work for the defendant company at a salary of $60 per week from October 1, 1919. All of this testimony is without corroboration of plaintiff’s alleged contract with the defendant.

It is, indeed, remarkable, to say the least, that plaintiff should leave the employ of the defendant at the salary he alleges was agreed to be paid him, and then after working for defendant for a considerable time for wages he agrees were promptly paid him by defendant, leave for Greece without making any demand or claim for any wages due him prior to June 1, 1920, and that on his return from Greece making no demand for such wages, and then not until he was unsuccessful in procuring employment with defendant did he cause a demand to be made by his lawyer with the threat of suit if the demand was not met.

Furthermore, the verdict and judgment are inconsistent with the proofs. Either the plaintiff was entitled to a verdict for the full amount of his claim or the defendant was entitled to .a verdict in its favor, and as the contract claimed by plaintiff was not supported by any evidence other than his own, and the alleged terms of that contract being denied explicitly by the president and secretary and treasurer and manager of the defendant, to be consistent, the verdict of the jury should have been for the defendant. As defendant • argues in its brief, “there is no middle ground. ’ ’

As said in Higgins v. Lee, 16 Ill. 495, we likewise say: “Where it is apparent, as it is here, that the jury must have misunderstood, or disregarded the evidence or instructions of the court, or neglected properly to consider the facts, or overlooked prominent and essential points in them, and have failed to do substantial justice, we are compelled to set the verdict aside and grant a new trial. Wendell v. Safford’s Executor, 12 N. Hamp. R. 171; Inhabitants of Bangor v. Inhabitants of Brunswick, 27 Maine R. 351; Gordon v. Crooks, 11 Ill. R. 142.”

In Galomopoulos v. Petropoulos, 147 Ill. App. 1, the court said: ‘ ‘ The only question presented by the record is whether the weight of the evidence justifies the verdict and judgment. We are satisfied from an examination of the evidence that a new trial should be awarded. The judgment is inconsistent with any possible theory of the case consistent with the evidence. The evidence justifies a verdict and judgment for $500 in favor of the plaintiff, or a verdict for the defendant. It is an action ex contractu, and if the jury were justified in finding against the defendant it should have been for $500.” The verdict in this case was for $300. To a like effect is Conrad Seipp Brewing Co. v. Peck, 85 Ill. App. 637.

In Cody v. Commercial Fire Ins. Co., 13 Ill. App. 110, where the claim was for $500 on a policy of insurance against loss by fire, the verdict was for the plaintiff with one cent damages, and the court said: " The verdict was inconsistent and absurd. The plaintiff introduced evidence tending to support the allegations in his declaration, and the jury found the issues in his favor. By the undisputed evidence the damages proved amount to the sum of $540. If the plaintiff was entitled to recover, the verdict should have been for that sum; if he was not entitled to recover, the verdict should have been for the defendant. The record as it stands, is simply a judicial burlesque, and, if allowed to remain unreversed, would reflect unfavorably upon the administration of justice in courts of law.”

There are many other questions argued in the briefs, but they are all subsidiary to the one above discussed. And while there are errors in instructions and in the rulings of the court in the admission and refusal of proffered testimony, in the view which we have taken of the case as above outlined, it is not deemed profitable to further discuss other errors. It is a remarkable coincidence that the verdict of the jury is just half of the amount of the claim made by plaintiff’s attorney in his letter of demand to defendant. Such action shows, in our judgment, a lack of due consideration of the evidence by the jury, and that their verdict was instigated by a spirit of compromise, a spirit which the law favors as between' parties, but condemns when it is the controlling factor in the verdict of a jury.

The plaintiff failed to sustain his claim of a contract of employment with defendant as of October 1, 1919, by a preponderance of the proof. Therefore the judgment of the superior court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Taylor, P. J., and Wilson, J., concur.


text:
    John P. Olin et al., Appellees, v. George W. Reinecke and Harold J. Gilmore, Appellants.
    Gen. No. 31,612.
    1. Fixtures — buildings on another’s land as. A lot owner who, through mistake on his own part, constructs a building on another’s lot thereby makes it a fixture and part of such real estate.
    2. Brokers — when responsibility to customer ceases. The responsibility of a broker to his customer ceases when the latter procures his deed upon payment of the purchase price.
    3. Fixtures — relief for placing buildings on another’s land through mistake. A lot owner who because of his surveyor’s mistake is led to construct a building on another’s lot next to his own lot, may not compel the other who was equally mistaken and did not in any way cause the mistake, to buy his improvement or as an alternative that the lot be sold and they accept the price received therefor after taking out the cost of improvements, but he will be given a deed to the lot upon which his building stands and will be compelled to deed his original lot to the other owner.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding.
    Heard in the third division of this court for the first district at the June term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 19, 1927.
    Rehearing denied November 4, 1927.
    Statement by the Court. This bill alleges inter alia that in April, 1921, John P. Olin purchased lot 33 in block 22 Southfield; that he by mistake improved lot 34, next to said lot 33; that he sold said lot 33 and improvements to complainants, Charles G. Melin and Augusta S. Melin, in March, 1922; that defendant, George Reinecke, purchased lot, 34 in block 22, aforesaid, in June, 1922, and took title in the name of defendant, Harold J. Gilmore; that such purchase was in pursuance of a conspiracy to defraud complainants of their equitable rights in lot 34, block 22; prays for an accounting and that Gilmore convey to the Melins lot 34 in exchange for lot 33; that Gilmore convey lot 34 to the Melins upon payment to him of fair value of lot 34 exclusive of improvements; that Gilmore convey lot 34 upon payment to him of purchase price of lot 34 with interest; or that Gilmore pay to Melins the fair value of the improvements on lot 34. Gilmore answered the bill and Reineeke disclaimed any interest in the property involved.
    Gilmore first demurred generally, which demurrer was overruled. Gilmore in his answer denies all notice and conspiracy, alleges his purchase of outstanding contract of lot 34, payment of purchase price and receipt of deed, and claims ownership of lot 34 with improvements.
    The cause was referred to a master, who heard the evidence and reported his conclusions thereon to the court, which report was approved after the overruling of objections and exceptions thereto.
    The material findings of the master were as follows:
    That in 1920, 1921 and 1922 William E. Harmon & Co., dealers in real estate, were agents of the owners of lots in Southfield subdivision; that Hubert 0. Lane was a salesman and agent of Harmon & Co.; that defendant, Reinecke, was engaged in the real estate business with an office about two blocks from South-field subdivision; that Lane listed some lots with Reinecke to sell, and that in December, 1920, John P. Olin asked at Reinecke’s office about vacant lots; that Reinecke and Olin went to Southfield subdivision; that there were few buildings in the subdivision; that walks were laid and the lot numbers were indented in the walks in front of the lots; that Reinecke told Olin that lot 33, thus marked, was for sale; that Lane testified that Reinecke produced Olin as a buyer and took a deposit, and then Olin came to the office and ordered the deeds; that “when one of those parties owning a lot desired to sell, that instead of letting him pay Harmon & Company and take his deed and deed it over to the buyer, they had the contract holder fill out an assignment blank and that assigned his interest to the party buying, and then they ordered the deed and guaranty policy in that buyer’s name, and as soon as that came through the buyer came in with his money and the balance due Harmon & Company was taken out and the deed turned over to the new buyer; that does away with having a second party on the record.”
    Walther held a contract for the lot purchased by Olin; that on April 9, 1921, the above procedure was followed and a deed of said lot 33, block 22, Southfield, was executed by Tyson, trustee, to John P. Olin and Hilma Olin, as joint tenants; that the deed was recorded April 27, 1921; that Olin listed the lot with Reinecke in April, 1921, but Reinecke did not procure a purchaser; that Olin decided to improve the property and employed Augustus Cavanna, a surveyor to survey lot 33; that the surveyor’s plat showed the lot to be the one in front of which the figures 33 were indented in the walk; that Olin then erected on said lot a two-flat brick building and a two-car garage, at a construction cost of $11,890.22, cost of plans and specifications $75 and superintendence $600; that Olin borrowed $6,000 and executed a trust, deed conveying lot 33; that on March 14, 1922, Olin and wife conveyed lot 33 to Charles H. Melin and Augusta Melin for a consideration of $14,000; on January 18, 1916, Harmon & Company sold lot 34 to Dick Bruening, under an instalment contract for $1,090, payable $11 per month; that on June 5,1922, Bruening executed an assignment of said contract to the defendant Gilmore, and on the same day Lyman executed a deed of lot 34 to Gilmore; said deed was recorded July 6, 1922; that Melin took possession of the flat building and garage in March, 1922, and. has been in possession ever since; that the flat building in question was constructed . on lot 34 instead of lot 33; that the sidewalk impression “33” is 1.72 feet north of the south line of lot 34; that “32” is .82 feet north of the south line of lot 33; that “34” is 1.02 feet north of the south line of lot 35; that “40” is in front of lot 40, but that none of the other sidewalk number impressions is in front of the lot of that number.
    That in 1921 and 1922 Gilmore was a salesman for Hart, Schaffner and Marx; that he is a brother-in-law of Reinecke and had talked with Reinecke about buying a vacant lot in Southfield on which to erect a flat building; that in the spring of 1922 Reinecke showed him 10 or 20 vacant lots; that in June, 1922, Reinecke showed him 2 or 3 lots in Southfield; that Gilmore authorized Reinecke to purchase lot 34; that he saw the lot before purchasing it; that he had a few hundred dollars in the bank and owned some Hart, Schaffner & Marx stock; that he turned the stock over to his father under an arrangement whereby his father was to advance money necessary to purchase the lot; that he did not know whether his father gave Reinecke the money; Reinecke did not know the Olin building was on lot 34 until Gilmore’s survey; that in July, 1922, Gilmore told Melin over the telephone that his buildings were on lot 34, and that Gilmore owned lot 34; that Melin told Olin, and Olin, Melin and Nelson, the mortgagee, met Reinecke, measured the lots and saw that the building was on lot 34; Olin told the surveyor Cavanna, who said it was his mistake; Cavanna offered Reinecke $500 to settle the matter, but Reinecke refused; Olin and Nelson called on Gilmore and offered $500 to settle and increased the offer to $1,000, which was refused. These offers of payment were admitted by the master as competent over objection of defendants. Reinecke was familiar with the lots in the subdivision, had made sales of lots there and made the original sale of lot 33 to Olin, that he and also Lane visited the premises while the building was being constructed, and knew that it was being constructed by Olin; that in June or July, 1922, Reinecke asked Lane over the telephone what lots he had for sale and he quoted lot 34 in with the rest of them, some were $1,700, and 34 was $1,600; he told him that he had a deposit on lot 34. Lane called in Bruening, who owed about $400 on his contract; the following day Reinecke brought in the deposit. Bruening was there and the deal was closed. Bruening admitted that he saw the lot twice, the last time in 1920; that there were no improvements except the sidewalk; that he never knew there were any improvements ‘‘until the other night”; that neither Olin, Melin, Nelson or Cavanna knew that the building and garage had been erected on lot 34 instead of lot 33 until so informed by Gilmore through his conversation with Melin in July, 1922; that in June, 1922, Gilmore visited the subdivision and looked at the vacant lot adjoining Olin’s building on lot 34, which Olin thought was on lot 33; that Gilmore looked at lot 33; that Gilmore assumed that $1,600 was the price of the lot at which he looked; that the deal was consummated for Gilmore through Reinecke, as his agent, on the theory that Gilmore was buying the vacant lot'next to Olin’s building; that Gilmore took title to it as a vacant lot; through error on the part of Lane acting for Harmon & Co. the deed to Gilmore did not describe the lot which Gilmore had personally inspected and selected, but it described lot 34 on which Olin had constructed the buildings in question. When Olin purchased his lot from Harmon & Co. he looked at the premises and picked out a vacant lot, and through error in the office of Harmon & Company and Mr. Lane, their agent, a deed was executed and delivered to Olin for a lot other than the one which he had examined and selected; that neither Olin nor Gilmore received a deed for the lot which he selected and agreed to purchase; that Bruening never had any legal title to lot 34 nor any equitable interest therein of which complainants had notice; that he never consummated his contract, that no deed was ever predicated upon his contract; that Gilmore never acquired any title from Bruening, but acquired title direct from the owners under a contract made with the owners through Reineeke and Harmon & Co. their agents; that the owners who made the deeds to Olin and to Harmon & Co. through their duly authorized agents had knowledge of the improvements made by Olin as they were being constructed on lot 34 instead of lot 33; that they should have known that Olin was placing them on the wrong lot; that they made no objection or protest and are therefore estopped from claiming any right or title to said improvements; that Gilmore selected lot 33 after the improvements were completed on lot 34 and he acquired no better title nor greater rights in lot 34 which was conveyed to him by mistake than those of Gilmore’s grantors; that Melin and his wife were in actual possession of lot 34 and improvements when Gilmore selected lot 33; that Reineeke acted as agent for Gilmore and the possession of Melin and wife was notice to both of them; that neither Reineeke nor Gilmore made any inquiry as to Melin’s rights; that they had no reason for making such inquiry because Gilmore selected lot 33, that Gilmore is not in law or equity entitled to any more than he bought, a vacant lot.
    From these findings the master recommended that complainants should be given an equitable lien on lot 34, block 22, Southfield, and improvements thereon for $12,565.22, besides costs and expenses of this proceeding; concludes that defendant Gilmore should be decreed to pay said sum to the clerk of the court, and that the clerk out of said sum should pay to John E. Nelson the mortgage indebtedness of $6,000 with interest; the balance to Melin and wife; upon failure of Gilmore and Reinecke to comply with such order that lot 34, block 22, and improvements be sold free and clear, and out of the proceeds Nelson be paid the mortgage indebtedness and interest, and the balanee of the proceeds of sale, after payment of said mortgage indebtedness, to the amount of the difference between said mortgage indebtedness and $12,565.22 and costs and expenses, be paid to Melin and wife, and the overplus, if any, should be paid to Gilmore. After said sale a conveyance of said lot 34 and improvements should be made.
    Hoag & Ullmann, for appellants; Frederic Ullmann and George M. Burditt, of counsel.
    Arthur H. Chetlain, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

It appears from the foregoing statement that Olin built a two-flat building and a two-car garage on lot 34, which he did not own, under the belief that it was lot 33, which he did own.

A . careful reading of all the evidence fails to disclose that Reinecke, Gilmore or any other of the persons involved in the original transaction, at any time did or said anything on which Olin acted in erecting his buildings on lot 34 instead of lot 33. .There can be no doubt from the testimony that Olin honestly believed that he was building bn lot 33, as was his intention.

Gilmore, who subsequently acquired title to lot 34, is not proven to have made any statement which would have induced Olin to build on lot 34, instead of lot 33, which he owned. There is no evidence, as we see it, that any statement was made by any party to this transaction to mislead Olin in building on the wrong lot. Reinecke told Olin when he was about to build to have the lot surveyed. Bruening held the contract for the purchase of lot 34 in 1916, and in the conveyance to Gilmore Bruening paid $400 due on his contract at the time Gilmore received his deed. It' is clear that the whole trouble here was that Cavanna, the surveyor, in making the survey for Olin, surveyed lot 34 instead of lot 33. In faith of the correctness of such survey Olin put his improvements on lot 34. In the faith of this survey being correct, Olin procured $6,000 on the mortgage of lot 33, which mortgage money was used in the construction of the two-flat building and the garages on lot 34. So far as this record shows every person interested believed that lot 33 was the lot improved and not lot 34; Gilmore had a survey made by the Chicago Guaranty Survey Company, and then for the first time discovered from that survey that the improvements made by Olin were on lot 34; at that time Gilmore had no knowledge of the improvements on lot 34 and called for a survey.

It is true that during all of the time after the erroneous survey by Cavanna, Olin or the Melins were in the actual possession of lot 34, and that such possession was notice to the world of their rights. The survey of lot 34 for lot 33 was a mistake of the surveyor, Cavanna.

-The record clearly shows that Olin intended to purchase lot 33; Harmon & Company intended to and did deliver a deed to Olin of lot 33; that Olin requested a survey of lot 33 and that Cavanna intended to survey and mark the borders of lot 33, but instead by mistake surveyed lot 34, and marked it lot 33.

There does not appear in the record any fact which would warrant the conclusion that any of the parties conspired or did any fraudulent act which misled Olin, and Olin did not act upon any representation made by Beinecke or anyone else, which misled him or influenced him to erect his buildings on lot 34 instead of lot 33, except the survey of Cavanna made at Olin’s request.

The buildings when constructed on lot 34 became and still are a part of the real estate. Crest v. Jack, 3 Watts (Pa.) 238, in which the court said: “If a stranger enter on the land of another and make improvements by erecting buildings, they become the property of the owner of the land. Were it not so, a person might gain a title by the commission of a trespass, and strip his neighbor of his estate, or subject him to compulsory expenses, under the pretext of improving his property. The foundation of property consists in its being an exclusive right: other persons cannot impair its enjoyment, or impose burdens on it by intermeddling with it'without the .owner’s leave, or color of legal authority. * * * There are, however, cases, in which an owner of land standing by and permitting another to spend his money in improving it, has, in equity, been deemed a delinquent, and been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right. * * * To permit such a one to take advantage of the mistake would be revolting to every sentiment of justice. But on the other hand, I know no case where equity has, on the mere ground of silence, relieved one who is perfectly acquainted with his rights, or has the means of becoming so, and yet wilfully undertakes to proceed in expending money on the land of another without obtaining or asking his consent.”

There can be but little doubt that all the parties in interest, including the agents, knew that Olin was constructing his two-flat building and garage, but everyone assumed that he was doing so under the title which he held to lot 33. (Green v. Biddle, 8 Wheat. [U. S.] 1.)

In Haggerty v. McCanna, 25 N. J. Eq. 48, the court said complainant “bases his claim to relief on the ground of mistake. But an error which is the result of inexcusable negligence, is not a mistake from the consequences of which equity will grant relief.' The complainant’s mistake in this case was in assuming, as he says he did, from the fact that his wife had administered on McCanna’s estate, that she was the owner of the lots of land in question. He appears to have made no inquiry whatever on the subject. On the argument it was urged that on the ruling of this court in McKelway v. Armour, 2 Stockt. 115, the relief sought might be granted. But the decision in that case was expressly put on the ground of the complainant! s mistake as to the location of a vacant lot, plotted out on a map only, a mistake which the court said was one which might occur to the most careful and diligent man, and the fact that the defendant stood by and participated in the mistake, which latter consideration was regarded as a most important feature in the case. * * * No relief can be afforded him on the ground of mistake.”

Kirchner v. Miller, 39 N. J. Eq. 355, is a case similar to the one at bar arising on a mistake, and the court said: “The principle of the case is that where one by mistake puts improvements on another’s land mistaking it for his own, equity will, in a proper case, compel the latter to sell and convey the land.to the former, at a price to be fixed by the court, unless he will consent to pay for the improvements. The exercise of such a judicial power, unless, based on some actual or implied culpability on the part of the party subjected to it, is a violation of constitutional right. ’ ’

While it is hard not to believe that Beinecke and Gilmore knew that Olin, for some reason unknown to them, had built on lot 34, yet there is no evidential fact in the record from which a court could hold that Beinecke and Gilmore conspired together to defraud Olin of his rights in lot 34, and by so conspiring and acting together they were guilty of actual fraud, as contended for by complainants. There may be a grave suspicion that they knew of the mistake made by Olin, but there is no evidence from which this court can conclude that Reineeke and Gilmore were guilty of conspiring together to defraud Olin of his rights.

It is insisted that Reinecke and Gilmore remained silent when they should have spoken. However this may be, it is clear that no party to this suit knew, until Gilmore procured a survey of lot 34 after his purchase, that Olin, who owned lot 33, had mistakenly built upon lot 34. Hone of the defendants stood in a fiduciary relationship to Olin, at any time, except Reinecke, who was the agent of the seller of lot 33, and negotiated the purchase by Olin. When that transaction was closed and Olin procured his deed on payment of the purchase price, Reinecke’s responsibility to Olin ceased. There was never a time, in law, thereafter that Reinecke or Gilmore were obligated to warn or advise Olin as to his rights or to tell him to desist from building on lot 34. That is patent from the fact that none of the parties knew that Olin was building on' lot 34 until after the buildings were completed and in the possession of the Melins.

If complainants are entitled to relief they are certainly not'entitled to the alternative relief given.by the decree. The utmost that a court of chancery could decree on the facts of this case would be that Gilmore be directed to convey lot 34 to complainants, the grantees of Olin, and that complainants be decreed to convey to Gilmore lot 33. Lots 33 and 34 are of the same dimensions; they adjoin each other; so far as can be gathered from the record, they are of about equal value. Olin was not guilty of any conscious dereliction in building upon lot 34, but that his so doing rested solely on the fact that his surveyor, Cavanna, surveyed lot 34 when he was told to survey lot 33, and reported to Olin that lot 34, which he did survey, was lot 33. That is the- crux of the whole trouble, Olin’s grantees being from any view point absolutely innocent in the transaction.

Gilmore, so far as the proofs show, cannot be penalized by being compelled to pay for the improvements placed by Olin upon lot 34; that would be highly inequitable and unjust because in Gilmore’s financial condition he might be unable to perform the financial part of the decree.

It is our opinion that the rights of the parties will be more equitably preserved by the Melins conveying to Gilmore lot 33, and Gilmore conveying to the Melins lot 34, and that the mortgage on lot 33 above recited, be transferred and attached to lot 34, and released from lot 33, and that all the parties execute appropriate conveyances to each other for that purpose.

The decree of the circuit court is therefore reversed and the cause is remanded with directions to the circuit court to enter a decree requiring each of the parties, the Melins and Olin, to make, execute and deliver conveyances of lots 33 and 34 as above recited, and that in default of their so doing within 30 days after the entry of such a decree, that a master in chancery of the court be directed to make such conveyances in the name and on behalf of either of the parties who may in this regard fail to make such conveyance or conveyances as may be directed to be made by the decree to be entered by the circuit court in pursuance of and in conformity with the directions in this opinion contained.

Reversed and remanded with directions.

Taylor, P.J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Shraiberg Manufacturing Company for use of Robert Bachrach, Appellee, v. Boston Insurance Company of Boston, Massachusetts, Appellant.
    Gen. No. 31,381.
    1. Appeal and error — opinion on one cause as controlling consolidated causes. After causes are consolidated on appeal, and the appellee, though objecting, has failed to supply a full record in the causes with short records, the opinion of the court on the case considered will be controlling as to the other cases.
    2. Garnishment — necessity of evidence to support verdict. In a dispute on whether a number of garnishment proceedings were consolidated as to the evidence, the verdicts in other cases than the one heard will be null as having no support in evidence unless they are admitted to have been consolidated therewith.
    3. Garnishment — answer by good defense to debtor as bar to. In a proceeding to garnishee insurance companies for insurance owing a debtor, the answers of the companies that the right to recover insurance had been forfeited because of the false representations of the insured, were, if true, good defenses to the debtor and raised a contingency which barred the garnishor of any right against the insurers.
    4. Garnishment — unliquidated claims under insurance policy as not subject to. Until the amount of an insurance loss had been determined in an action between insurer and insured, the creditor of the insured had no right to subject this unliquidated loss to garnishment in the hands of the insurer.
    5. Garnishment — statutory nature of. Garnishment is purely a remedy by statute, the words of which must control every proceeding thereunder, no matter what the effect.
    6. Garnishment — when question of debt determined. If at the time of the garnishee’s answer he is indebted to the judgment debtor without uncertainty or contingency, that debt is subject to garnishment.
    7. Garnishment — when will not lie for unliquidated or contingent claim. A garnishee proceeding will not lie where the claim is contingent or unliquidated or is not ascertainable by computation except by the verdict of a jury.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 19, 1927.
    Rehearing denied November 4, 1927.

      Hicks & Folonie, for appellant.
    Moses, Kennedy, Stein & Bachrach, for appellee; Hirsch E. Soble, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The facts in this case disclose that the Shraiberg Mfg. Co. was engaged in the sale of merchandise, consisting of ladies’ coats and dresses, in the city of Chicago; and that in July, 1925, there was a fire in the premises of the company and that, at the time, there were outstanding insurance policies totalling $18,000, insuring the company against loss by fire to the contents of its store. On November 16, 1925, Robert Bachrach, as assignee, made claim against the Shraiberg Mfg. Co. upon 21 promissory notes for the sum of $2,723.28, together with $137 attorney’s fees. These notes were signed by the Shraiberg Mfg. Co., by Irving II. Shraiberg, president, and were payable to one I. Arbetman and others, and these notes in turn were indorsed to Robert Bachrach, who brought this action in the municipal court. Judgment for the amount of $2,860.28, including the sum of $137 for attorney’s fees, was entered on November 17,1925, together with costs. On November 19, 1925, execution issued and was returned, no property found. November 27, 1925, an affidavit for garnishee summons was filed, setting up the judgment and the return of the execution, and stating that affiant believed that the Boston Insurance Company of Boston, Massachusetts, Delaware Insurance Company of New York, The London and Lancashire Insurance Company, Ltd., of London, The Girard Fire and Marine Insurance Company of Philadelphia, The Liverpool and London and Globe Insurance Company, Ltd., of Liverpool, England, London and Scottish Assurance Corporation, Ltd., of London, England, Massachusetts Fire and Marine Insurance Company of Boston, Massachusetts, National Surety Fire Insurance Company of Omaha, Nebraska, New Hampshire Insurance Company of Manchester, Patriotic Insurance Company of America, and Eoyal Exchange Assurance of London were indebted to the defendant and had effects of said defendant in their custody and possession. Garnishee summons issued and certain interrogatories were filed, directed to each of the said garnishees. The interrogatories, in effect, asked of the several garnishees whether or not they had in their possession, charge or control, at the date of the service of the writ issued in the cause, any moneys, choses in action, credits or effects owned by or due to said Shraiberg Mfg. Co.

Special appearances of each garnishee were entered, together with a written motion to quash the summons in each cause. This motion to quash the summons was withdrawn, and on January 20, 1926, the answers of the garnishees were filed in said cause, denying that they had in their hands, or in their possession, charge or control, at the date of the service of the writ, any money, choses in action, credits or effects, owned by or due to said Shraiberg Mfg. Co. On March 12, 1926, amended answers were filed by each of the garnishees, stating that it had no property, goods, chattels, rights, credits or effects of any kind belonging to said Shraiberg Mfg. Co., except that there was a contingent claim asserted against it by the said Shraiberg Company, arising out of an incendiary fire on July 18, 1925, and setting out more specifically the following as answers to said interrogatories: ‘ ‘ The said Shraiberg Mfg. Co.’s said policy of insurance was and became void before the commencement of this garnishment suit by reason of the said Shraiberg Mfg. Co. having misrepresented both in writing and orally and having concealed material facts and circumstances concerning tlie subject of the insurance, and by reason of fraud and also false swearing by the said Shraiberg Mfg. Co. in material matters relating to the insurance and the subject thereof after the said loss by fire.

“The said Shraiberg Mfg. Co., by its officers and representatives, did falsely and fraudulently represent that the origin of-the fire was unknown when they well knew that it was incendiary; did claim loss and damage in large value upon furniture and fixtures, well knowing that the said loss and damage was exaggerated at least 200%; did claim about $15,000 loss and damage on stock of goods, well knowing the loss was not in excess of half such amount. These representations were made by the said Shraiberg Mfg. Co. by its President under oath in sworn proof of loss to this garnishee, which representations were made with intent to cheat and defraud this garnishee; and by the terms of the said policy sued upon the said policy is void.”

The policy of insurance contains the following provisions: “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance'concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.” The garnishee asked to be discharged upon the filing of its answers, and this being denied, the case proceeded to trial before the court without a jury. There is nowhere in the record anything that shows a waiver of a jury, but in the placita in the record it does appear that the cause coming on to be heard and a jury being waived, the cause proceeded to trial before the court, so that the question of whether or not garnishees were denied the right of trial by jury does not appear to be present, as the record appears before this court. On July 2, 1926, a judgment order was entered, finding that at the time of the service of the garnishment writs, there was due and owing to the defendant from the respective garnishees, amounts as follows:

“Boston Insurance Company of Boston, Massachusetts, $972.22;
“The Girard Fire and Marine Insurance Company of Philadelphia, $1944.44;
“The Royal Exchange Assurance of London, $3,402.76 ;
“Patriotic Insurance Company of America, $1,458.32;
“The New Hampshire Fire Insurance Company of Manchester, $972.22;
“National Security Fire Insurance Company of Omaha, Nebraska, $1,458.32;
■ “Massachusetts Fire and Marine Insurance Company of Boston, Massachusetts, $1,458.32;
“London and Scottish Assurance Corporation, Ltd., of London, England, $1,215.32 ;
“Liverpool and London and Globe Insurance Company, Ltd., of Liverpool, England, $1,215.32;
“The London and Lancashire Insurance Company, Ltd., of London, England, $1,458.32;
“Delaware Insurance Company of New York, $1,944.44.”

Exception to the entering of this judgment and the finding was taken by each of the defendants and motion in arrest of judgment by each of the garnishees was overruled and exception taken; and judgment was accordingly entered (Abst. 8) that Shraiberg Mfg. Co., a corporation, for the use of the plaintiff, Robert Bachrach, as to the sum of $2,875.03 and interest thereon from November 17, 1925, together with plaintiff’s costs, and as to the residue for the use of itself, Shraiberg Mfg. Co. have and recover from the respective garnishees the respective amounts in the foregoing finding and that they have execution therefor and for the costs of the suit. From this judgment, each of the garnishees prayed a separate appeal, and it appears from the record that though the court was hearing the case of Shralberg Mfg. Co. for use of Robert Bachrach v. Boston Ins. Co. of Boston, Mass., the judgment that was entered as to the other garnishees was based upon the testimony heard in the foregoing cause, now on appeal before this court, and it is interesting'to observe on what the court based its right to consider this testimony in all the other causes. Quoting from the record it appears that the following took place before the court near the close of the testimony.

“Mr. Soble: There is one matter I want to take up before we get to the arguments, and that is that I want to renew my motion as to the other insurance companies. I am going to ask the Court to consider the evidence in this case to stand as the evidence in all the other cases.

“The Court: Wasn’t there a stipulation signed as to that?

“Mr. Soble: There isn’t any stipulation.

“The Court: There isn’t going to be any argument over what the agreement was in the beginning.

“Mr. Folonie: If the Court please, I made the suggestion to counsel that we let these other cases abide the result of this one, in other words, whatever the result of this one is in the Appellate Court or whatever it is that those others follow the same course. Counsel has a client that insists he thinks he is going to recover some money, that he therefore wishes to make it as expensive for us as possible, and he therefore wishes a judgment entered the same in that case so that the record would cost us $5,000 or $6,000 more if we appealed it. If counsel insists on doing it that way of course I will have to argue that out with the Court.

“The Court: We should have had an understanding in the beginning if those matters were discussed.

‘ ‘ Mr. Folonie: If the Court will remember, I made the suggestion at that time that we would abide the decision of this one on the others.

“The Court: Was there any discussion as to whether if there was an appeal these others should be — •

“Mr. Soble: There was a large amount of discussion at the first afternoon session that lasted about two hours, and finally when we got through Mr. Folonie said he had a proposition to make, and then a few days later did make that proposition and we considered it and turned it down, and we are not renewing the original motion.

“Mr. Folonie: Not, yet, because I haven’t made my motion at the close of all the testimony.

“Mr. Soble: I mean after you get through with that. ’ ’

The cause on hearing before this court, as entitled herein, contains the complete record of the testimony. Short records were filed on appeal in each of the other cases by each separate garnishee. On motion before this court the causes were consolidated so that the testimony in this case was to be considered in each of the others, and while objections were filed here by appellees, no effort was made by them to supply the record in the other causes, and for that reason the opinion of this court in the case under consideration will be controlling as to the other causes. Moreover, if no evidence was heard or considered as to the other causes, then there is no evidence whatever to support a verdict. At all times during the proceeding in the municipal court, appellant contended and took the position that it was the duty of the trial court to dismiss the proceeding on the coming in of the answers of the garnishees, which set up, in effect, that the garnishees did not owe anything under their policies, and that the claim, if any, of the plaintiff, was an unliquidated claim and did not come within the meaning or purview of the statute on garnishments. If this contention is correct, it would dispose of the case without requiring consideration of other matters of procedure raised in the lower court. The Garnishment Act (Cahill’s St. ch. 62, ¶ 1; Smith-Hurd Ill. St. ch. 62, § 1), provides as follows:

“1. Garnishment on Judgment.] § 1. Whenever a judgment shall be rendered by any court of record, or any justice of the peace in this State, and an execution against the defendant or defendants in such judgment shall be returned by the proper officer ‘No property found, ’ on the affidavit of the plaintiff, or other credible person, being filed with the clerk of such court or justice of the peace, that said defendant or defendants has or have no property within the knowledge of such affiant, in his or their possession, liable to execution, and that such affiant hath just reason to believe that any other person is indebted to such defendant, or defendants, or to either or any of such defendants, or hath any effects or estate of such defendant, or defendants or of either or any of such defendants, in his possession, custody or charge, it shall be lawful for such clerk or justice of the peace to issue a summons against the person supposed to be indebted to, or supposed to have any of the effects or estate of the said defendant, or defendants, or of either or any of such defendants, commanding him to appear before said court of justice, as a garnishee * *

Section 5, Cahill’s St. ch. 62, ¶ 5, of said act, under the section in regard to interrogatories and answers, requires the garnishee to answer interrogatories in writing, touching the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of such defendant, and the value thereof, in his possession, custody or charge, or from him due and owing to the said defendant at the time of the service of said writ. Paragraph 7 of said Garnishment Act, Cahill’s St. ch. 62, ¶ 7, in providing the manner in which the issues shall be made up and the cause tried, provides that when the garnishee has not truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of the defendant, then there shall be a trial conducted as other trials are conducted. It will appear from a reading of the three sections in question that the original or creating section limits the right of recovery in garnishment proceedings to cases where the garnishee is indebted to or has effects or estates of the defendant in his possession. The subsequent two sections, 5 and 7, Cahill’s St. ch. 62, ¶¶ 5, 7, seem to have a broader significance by reference to choses in action, moneys due or claims, credits, etc. This section has been construed by the Supreme Court of this State, on the identical question, in the case of Capes v. Burgess, 135 Ill. 61, which was a garnishment proceeding, where the garnishees' by their answer denied having in their possession any goods, moneys, etc., or being in any way indebted, but admitted that there had been a sale by them to the defendant, with a warranty attached thereto, but denied that there was any obligation on the warranty. The only question before the court appeared to be the question in issue, namely, as to whether a judgment creditor could, by process of garnishment, litigate a claim for unliquidated damages and subject it to payment of the judgment. The court in its opinion, page 65, says: “The remedy by garnishment is statutory, and the question of its application to any given case or class of cases is therefore purely a matter of statutory regulation. In other states, whenever the question has arisen, the courts, basing their decisions, of course, upon the peculiar provisions of their own statutes, have held that a person whose liability to the principal debtor was for unliquidated damages, could not be charged as garnishee. The rule is accordingly laid down by the leading text-writers on the subject of Garnishment, that in no case where the claim of the defendant against the garnishee rests in unliquidated damages can the garnishee be made liable. (Authorities cited.) * * *.

“The first section of our statute on Garnishment provides for suing out of a writ of garnishment by a creditor who has obtained judgment and whose execution has been returned unsatisfied, by filing an affidavit that the defendant has in his possession no property liable to execution within the knowledge of the affiant, and that the affiant has just reason to believe ‘that any other person is indebted to such defendant, or hath any effects or estate of such defendant in his possession, custody or charge. ’ This provision clearly indicates an intention to subject to the process of garnishment two classes of assets and two only, viz, 1. debts owing from the garnishee to the judgment debtor, and 2. effects or estate of the judgment debtor in the possession, custody or charge of the garnishee. In the subsequent portions of the act the distinction between these two species of assets is accordingly kept up, and they are subjected to different modes of procedure and necessitate entirely different forms of judgment.

“The fifth section requires the creditor to file in writing the allegations and interrogatories upon which he shall be desirous of obtaining and compelling the answer of the garnishee ‘ touching the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of such defendant, and the value thereof, in his possession, custody or charge, or from him due and owing to said defendant at the time of the service of the writ or at any time after, or which shall or may thereafter become due.’ The same language, in substance, is repeated in section 7, where provision is made for a traverse of' the answer by the creditor when he is. dissatisfied with the discovery made by the garnishee.

“It is claimed that because the language here used applies not only to the dioses in action and credits of the defendant in the custody, possession and charge of the garnishee, but also to such as are due and owing or are to become due from the garnishee to the defendant, every species of liability from the former to the latter is thereby brought within the reach of the writ. This, in our opinion, by no means follows. It is true the distinction between the two classes of assets sought to be reached is not here so sharply drawn as in section 1, nor would it seem necessary that it should be. The classes of claims to which the writ was intended to apply having been once clearly stated, and that too in the section under which the proceeding is set in motion and jurisdiction in respect to it conferred, it will be presumed that the distinctions thus created and the limitations thus imposed were intended, to be preserved and followed in the subsequent portions of the act, unless language is used which cannot be interpreted in harmony with such presumption.”

The court further on in its opinion, on page 67, after discussing the term “credits” holds that the terms thereafter used in sections 5 and 7 must come within the meaning of the original section 1, and that dioses in action must refer to a debt or credit and that a liquidated credit is one due upon payment and that that could be done only where the amount of the obligation is ascertained or is capable of ascertainment by computation; and holds in effect that an unliquidated contingent or uncertain claim does not come within the meaning of the Garnishment Act. This rule has been recognized and followed in the case of Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 228 Ill. App. 1.

The rule as to the right of a judgment creditor to maintain garnishment proceedings on a claim of this kind, does not appear to be uniform, and in many of the States, either by reason of the wording of the statute or by the construction of the court, a broader meaning has been given to the act, and garnishment proceedings may be maintainable on contingent or unliquidated claims. The general rule is well stated in 12 R. C. L. under “Garnishment,” section 25, p. 795.

“Unliquidated Claim — In several states the garnishment statutes compel the garnishee to answer upon oath the amount of his indebtedness to the principal debtor, in which case, if the amount of the claim is uncertain, it is impossible for the garnishee to make any answer upon which judgment against him can be rendered, thus excluding from the operation of the process all claims which are not certain, or at least ascertainable, in amount. In other states, there is a rule which excludes contingent claims, sometimes by the expression, and sometimes by the construction of the statute; but this rule, while apparently necessarily excluding claims which are contingent only as to amount, is sometimes applied to cases where the only contingency is whether anything will ever be due upon the claim, and if anything, a previously ascertained amount. In many states, also, there is a strict general rule, founded upon the phraseology of the statute, that a claim may not be garnished unless the principal debtor could at common law recover upon it against the garnishee in an action either of debt or indebitatus assumpsit. This rule, it will be seen, would necessarily exclude from the operation of the process all claims, whether in tort or contract, as well as claims in equity, which are unliquidated in amount, and are not certain, as id certum est quod certum reddi potest, in the sense of being ascertainable by calculation, and so would require the services of a jury to determine them. The reason for this rule lies in the fact that the statute in effect generally limits the process in one way or another to debts, and that those two forms of action are the appropriate means of collecting a debt, the action of debt, to enforce the debt itself, which must be for a sum certain, and the action of indebitatus assumpsit, to recover in damages the amount of the demand, which is not upon an express promise to pay a certain or any other sum; and in this action the jury would, according to the evidence, give a verdict for the whole or a part of the sum demanded.”

We are referred to the case of Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297, by both appellant and appellee. The opinion in this case, also by Bailey, J., who afterwards wrote the opinion in the case of Capes v. Burgess, supra, hereinbefore referred to in our opinion, holds the rule that a debt which is uncertain and contingent and may never become due and payable, is not subject to garnishment. . This case, while a garnishment proceeding against a fire insurance company for a loss incurred through fire, permitted a recovery because it appeared to the court that the contingency which was relied upon had been removed before the filing of the answer. In the case at bar the answer sets out matters of defense under the policies, namely, that the right to recover had been forfeited because of the false representations, and these, if true, would amount to a good defense in an action by a judgment debtor and the garnishee. Moreover, the amount of the loss was unliquidated and the garnishee had the right to have this question as well as any other questions of liability under the policy settled in a proper action between the garnishee and the judgment debtor.

The Supreme Court of this State, in the case of Wheeler v. Chicago Title & Trust Co., 217 Ill. 128, which was a garnishment suit begun against a person as executor for the probate of letters testamentary, says in its opinion, on page 135: “The remedy by garnishment is purely legal and every case must be brought within the scope of the statute, and whatever the effect may be the words of the statute must control.

“It is also the rule that the issue in a garnishment suit is whether the garnishee is indebted to the judgment debtor at the time of the answer, and if the indebtedness is owing without uncertainty or contingency at the date of the answer the debt is subject to garnishment.”

"When the answer was filed in this case the Trust Company, as executor, was legally entitled to possession of the estate and the legacy was not subject to any uncertainty or contingency.

It appears that whatever the general rule may be or whatever the rule may be with reference to particular statutes in other States, the law in this State is clear that a garnishee proceeding will not lie where the claim is contingent or unliquidated or is not ascertainable by computation except by a verdict of a jury, and for that reason the judgment of the municipal court is reversed and the cause remanded with directions to dismiss said garnishment proceedings on the answers herein filed by the defendant.

Reversed and remanded with directions.

Taylor, P.J., and Holdom, J., concur.


text:
    Mike G. Kusek, Appellee, v. Allied Packers, Inc., and Parker-Webb Company, Appellants.
    Gen. No. 31,481.
    1. Agency — establishing by agent’s statements. The relationship of principal and agent cannot be established by the statements of the agent made out of the presence of the principal.
    2. Agency — admissibility of agent’s words or deeds concerning. Evidence is inadmissible to prove am. agency if it consists only of evidence of the words and deeds of the alleged agent without any tracing of the alleged agency to the principal.
    3. Agency — admissibility of agent’s statements before formation of. Conversation of an alleged agent as to the fact of his agency, stated before the agency was claimed to have been formed, is not admissible to prove the agency.

      4. Agency — admissibility of conclusions as to. In an action to recover for goods sold and protest fees on dishonored cheeks of an alleged agent, from alleged principals, the court erred in admitting the testimony of the agent in which he did not attempt to give the substance of a conversation with the principals but merely his conclusions that he was thereby made their agent.
    5. Agency — effect of relying on agent. One who relies on and deals solely with an alleged agent in his sale of goods cannot afterwards demand the alleged principals make good the alleged agent’s failure to pay.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed.
    Opinion filed October 19, 1927.
    Rehearing denied November 10, 1927.
    Rosenthal, Hamill & Wormser and Phillips, Magic & O’Bryan, for appellants; Willard L. King and Edward M. O’Bryan, of counsel.
    Craft, Edgerton & Fraizer and Phillip J. Maguire, for appellee; Philip J. Maguire and F. E. Edgerton, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This action is predicated on a single count for hogs sold and delivered at an agreed price of $4,598.38, and for protest fees on dishonored checks amounting to $14.78, with interest from June 20, 1923. The action is in assumpsit and to the declaration were filed pleas of nonassumpsit by the Parker-Webb Company and the Allied Packers, Inc., appellants herein.

The facts show that one Alvin Whitton was engaged in the business of stock buying, and under arrangements with the Parker-Webb Company at Detroit, Michigan, procured and shipped a consignment of hogs to that company, for which he received a price of 25-cents a hundred over the top price at St. Louis, the Parker-Webb Company paying the freight. It is uncontradicted that up to and until early in June, 1923, the relationship between Whitton and the Parker-Webb Company was purely that of buyer and seller. It appears from the facts, and is uncontradicted, that one W. F. Maudlin was employed as an agent by Whitton sometime in April, 1923, and bought hogs for Whitton for which he gave his own personal checks. These checks were drawn on the Bank of Brayton, at Bray-ton, Nebraska, and the account in that bank was in the name of W. F. Maudlin for Alvin Whitton. It appears that when his account was in need of money Maudlin would draw a draft on Whitton, on the Bank of McFall, and that he was accustomed to sign drafts in blank and leave them with the cashier of the Bray-ton Bank.

Among the persons from whom Maudlin bought hogs was one Mike G. Kusek, appellee herein, living at Elyria, Nebraska. These hogs were shipped directly to the Parker-Webb Company, as consignee, at Detroit, with an arrangement by which they were sidetracked at Aurora where they were weighed and fed by Maudlin. They then continued on to the consignee at Detroit. It appears that this arrangement of a direct shipment to Parker-Webb was to avoid the expense of an increased freight rate, by reason of a shipment to Aurora, and then a separate shipment from Aurora to Detroit.

After the hogs were shipped Whitton drew sight drafts on Parker-Webb while the hogs were in transit. Appellee made four shipments of hogs on the days respectively, June 20th, 25th, 26th and 28th of 1923, which were the last shipments made by him and upon which this claim is founded. Kusek received for those four shipments checks from Maudlin, which were subsequently dishonored. The theory of appellee is that Whitton was the agent of the Parker-Webb Company and that Parker-Webb and the Allied Packers, Inc., were one and the same company, or so closely connected as to be acting in concert and connectedly. This contention is based upon a conversation between Maudlin and the appellee, Kusek, at Elyria, where, from the evidence of Kusek, it appeared that he was standing at the depot and was introduced to Maudlin by a conductor of one of the trains that was passing through, and that Maudlin stated to him, Kusek, that he was the agent of Parker-Webb. This conversation appears to have taken place sometime during the latter part of April or the first part of May, 1923. It is further contended in support of appellee’s contention that Maudlin was the agent of Parker-Webb, that Whitton, for whom Maudlin was working, had a conversation with Parker-Webb, in Chicago, in which the original arrangement of buyer and seller between Parker-Webb and Whitton was changed, and that thereafter Whit-ton was buying for Parker-Webb. This conversation is charged to have taken place sometime early in the month of June. It is further insisted by appellee that by a course of action Parker-Webb recognized Maudlin as its agent, and that it is estopped to deny this agency because of such conduct; and that Kusek had the right to rely upon it and consider that he was dealing with Maudlin as the agent of the Parker-Webb Company. It nowhere appears in the record that Kusek, after his first talk with Maudlin, made any investigation on his own account to ascertain the relationship between Parker-Webb and Whitton or Maudlin. He dealt directly with Maudlin and his consignments were shipped to Parker-Webb under the direction of Maudlin, and it is questionable whether he would have made any objection to any other consignee, if he had been so directed to make shipments, by Maudlin, to any other consignee. So that, outside and apart from the testimony concerning the two particular conversations, the facts 'appear to be clear that Kusek was dealing directly with Maudlin, receiving payments for his shipments from him, and following his directions concerning such shipments* So far as the question of estoppel by conduct to, on the part of Parker-Webb is concerned, the facts are uncontradicted that prior to June 1, 1923, Kusek had made a number of shipments to Parker-Webb, through Whitton and Maudlin, although during this period of time, as stated heretofore, it is uncontradicted that there was no relation of principal and agent between Whitton and Parker-Webb, and consequently no relationship as principal and agent between Parker-Webb and Maudlin, so that the course of conduct, if any existed, which created an estoppel, can only date from the alleged conversation of Whitton with Parker-Webb in Chicago, which, as already stated, was sometime in the early part of June. Moreover, it is clear from the record that Kusek did not rely upon such conversation, because he lmew nothing of it and assumed that he was doing business, as he had previous to that time. The drafts which were drawn on Parker-Webb, covering the four shipments in question, were paid by them but it appears in the record that Whitton was in default and did not see that the funds provided were used for the purpose of paying for the hogs in question. In approaching a consideration of the question as to the reliability of the testimony of Whitton, Maudlin and Kusek, it is well to bear in mind that each of said parties was interested and is interested in the outcome of the litigation, Whitton, because of the fact that if Parker-Webb should be considered the principal he would be released from liability under the allegations of the declaration in this case, so also would be Maudlin. Kusek would naturally be interested because it is apparent that his chances of recovery against Whitton and Maudlin are small, in view of the fact that the checks drawn in payment for the shipments, by Maudlin, were dishonored and Maudlin’s principal Whitton has not made good on the amount involved. In approaching the question as to the testimony of Kusek, concerning the conversation between himself, the conductor and Maudlin, at Elyria, it is well to bear in mind the fact that said conversation occurred sometime before the conversation of Whitton with Parker-Webb in Chicago, and it is not contended by anybody in the case that previous to that conversation Whitton was acting as the agent for Parker-Webb, but the facts are clear that the only relationship was that of buyer and seller, so that when Maudlin made the alleged statement to Kusek, in Elyria, he was not, in fact, the agent of Parker-Webb, and there would seem to be no reason why he should make such a statement that he was the agent if it was not based on the fact. Moreover, in our opinion, the conversation was improperly admitted, in view of the fact that its purpose was evidently to establish a relation of principal and agent, and this relationship, under the law, cannot be established by the statements of the agent out of the presence of the principal. Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41. The court in its opinion, page 49, says: “It is to be remembered that persons dealing with an assumed agent are bound, at their peril, to ascertain not only the fact of the agency, but the extent of the agent’s authority. They are put upon their guard by the very fact that they are dealing with an agent, and must, at their peril, see to it that the act done by him is within his power. It is their right and duty to ascertain the extent of his power, and to determine whether his act comes within the power and is such as to bind his principal. (Mechem on agency, sec, 276; Reynolds v. Ferree, 86 Ill. 570; 1 Am. & Eng. Ency. of Law, —2d. ed. — 987.) An agent cannot confer power upon himself, and therefore his agency or authority cannot be established by showing either what he said or did. (Proctor v. Tows, 115 Ill. 138; Mullanphy Savings Bank v. Schott, 135 id. 655.) The source of authority is the principal, and the power of the agent can only be proved by tracing it to that source in some word or act of the alleged principal.” There being no testimony as to the relationship of principal and agent at the 'time of this conversation, other than the alleged conversation itself, we believe that the conversation would be inadmissible and that it was error to permit it to go in. Moreover, as has already been stated, it is admitted and shown by the record that at the time of the alleged conversation there was no relation of principal and agent between Parker-Webb and Maudlin, and for that reason, if none other, the conversation would not be binding, as certainly a person could not bind another as principal where there was no relationship existing at the time. So far as the alleged conversation between Whitton and Parker-Webb is concerned, it appears from the record (Abst. 5) that Whitton was requested by Parker-Webb to go to the office of the company in Chicago, and that he did so, and met a Mr. J. A. Hawkinson, who it is admitted was the president of the company, at which time and place he had a conversation with Hawkinson, which was permitted to go in both as against the Parker-Webb Company and the Allied Packers, although the trial court found in a special finding (Abst. 146) that the defendant, Parker-Webb Company, was not the agent of the defendant Allied Packers Company, and that the Allied Packers Company was not the agent of the defendant Parker-Webb Company. Whitton testified (Abst. 6) that in his conversation Hawkinson told him that the hogs were costing too much and that he would have somebody else go over this matter; that he called in two or three fellows “and told them to go over this matter with me and see if we could not make a deal”; that he, Whitton, then went into another office and that he had a conversation with two persons, to him unknown and whose names he could not recall; that they there looked up -the rates and agreed that Whitton was to buy these hogs and that they were to give him 10 cents a hundred for buying them. Objections were made to this line of testimony, but it was permitted to go in subject to objection. In none of the conversation did the witness give or attempt to give what was said by and between himself and these unknown persons, nor was the conversation given directly nor was an attempt made to give it in substance, but the result of the answers seems to be the conclusions of the witness as to what the result of the conversation was, and in the view we take of this case, we feel that the court committed error in permitting it to go in, in the manner in which it did. There was no written contract, and the contract, if any there was, should be established by competent testimony. Moreover, as the record stands before us, it appears that Kusek, himself, looked only to Maudlin for the payment of his shipments and that his dealings were directly between himself and Maudlin, and that at' no time did he rely on the responsibility of Parker-Webb or the Allied Packers.

For the reasons hereinbefore stated, the judgment of the superior court is reversed.

Judgment reversed.

Taylor, P.J., and Holdom, J., concur.