text:
    Darling & Company, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 29,875.
    1. Highways — law of the road at intersections. Motor Vehicle Law, sec. 33, Cahill's St. ch. 95a, 1 34, giving vehicle approaching from the right at an intersection the right of way, does not confer such right regardless of the distance the approaching cars may be from the intersection.
    2. Highways — right of way at intersection for jury. In action for damage to truck in collision at street intersection, whether defendant coming from the right had the right of way held question of fact for trial judge.
    3. Highways — negligence and contributory negligence in colli■
      sion at street intersection for jury. In an action for damage to truck in collision with taxicab at street intersection, whether driver of truck was in exercise of due care and whether driver of cab was guilty of negligence held questions of fact for the trial judge.
    4. Highways — sufficiency of evidence to support finding as to negligence at intersection. In action for damage to truck in collision with taxicab at street intersection, finding of due care on part of truck driver and negligence on part of cab driver held not against the manifest weight of the evidence.
    5. Damages — cost of repairing motor truck presumed reasonable. Price paid for necessary parts used to repair damage to motor truck in collision will be presumed to be reasonable, in the absence of anything to cast suspicion on the transaction.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Charles C. Nauert, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed October 28, 1925.
    McGreaham & Blake, for appellant; Harris J. Blake, Jr., of counsel.
    Wolfsohn & Fireman, for appellee; Harry J. Fireman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover damages sustained by it by reason of its truck being struck and damaged by one of the defendant’s cabs. The collision occurred at a right-angle intersection of streets. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor for $182.

The evidence tends to show that on January 24, 1924, a two-ton truck belonging to plaintiff was being driven by one of its servants north in Paulina street; that one of defendant’s yellow cabs was being driven west in Monroe street; that the streets were very slippery; that the truck was moving about 12 to 14 miles per hour and the cab about 20 to 25 miles; that the truck which was being driven north in Paulina street in the east right of way of that street was turned to the northwest and the yellow cab which was coming west in the north roadway of Monroe street was turned in the same direction in an endeavor to avoid a collision; that the left front part of the cab struck the right front part of the truck and went around the truck over the northwest corner of the curb, some distance west in Monroe street before stopping; that the truck skidded around and stopped at the northwest comer of the intersection. The driver of the track testified that when he arrived at the street intersection he looked to his left and then to his right and saw the yellow cab about a half block down Monroe street, coming west; that he was then halfway across the intersection; that the streets were icy and slippery; that when he first saw the cab it was about 150 to 190 feet east of Paulina street. Another witness testified for the plaintiff that he was walking north on Paulina street, south of the intersection; that the truck was going north at from 10 to 12 miles per hour and the cab west at a speed of 20 to 25 miles per hour; that the pavement was wet and frosty; that the truck tried to steer out of the way, going to the west; that the yellow cab went around the track over the curb at the northwest corner of the intersection. This was all the evidence as to the occurrence. The driver of the yellow cab was not called to testify, nor was his absence explained. The track was damaged by the collision and was repaired.

The defendant contends that the driver of the truck was guilty of negligence in not yielding the right of Way to the defendant and that the driver of the cab was guilty of no negligence and it is argued in support of the charge of the - negligence of the driver of the track that under section 33 of the Motor Vehicle Law [Cahill’s St. ch. 95a, ¶ 34] he was required to yield the right of way. That section so far as material provides that : “All vehicles traveling upon public highways shall give the right of way to other vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left.” A number of opinions passing on this section of the statute have been handed down by the several divisions of this court, among them being: Lenartz v. Funk, 224 Ill. App. 180; Partridge v. Eberstein, 225 Ill. App. 209; Lasley v. Crawford, 228 Ill. App. 590; Zapf v. Kutten, 229 Ill. App. 406; Salmon v. Wilson, 227 Ill. App. 286; Sklar v. Hydrox Co., 237 Ill. App. 643; Larson v. Doerr, 237 Ill. App. 645. We agree with what was said in the Salmon case, as to the construction of section 33 to the effect that the vehicle approaching from the right has the right of way where other vehicles approach the intersection about the same time. That section does not intend to confer such right “regardless of the distance the approaching cars may'be from the point of intersection” as stated in the Salmon case. We are, therefore, of the opinion that the question in the instant case whether the defendant had the right of way was for the determination of the trial judge. From the evidence we are also of the opinion that the question whether the driver of the truck was in the exercise of due care and the further question whether the driver of the cab was guilty of negligence were also matters for the trial judge, and we cannot say upon a consideration of all the evidence that his finding in favor of the plaintiff on these questions is against the manifest weight of the evidence.

Complaint is also made that the judgment is excessive because it appears- from the evidence in the record that part of the amount is based on what plaintiff was required to pay for certain necessary parts used to repair the damage done and that the evidence does not show that the amount was a fair and reasonable charge. This was an ordinary business transaction and since there is nothing to cast suspicion on it the amount paid will be presumed to be reasonable. Cloyes v. Plaatje, 231 Ill. App. 183. We have examined the record as to the other items complained of by the defendant and are clear that they are without merit.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Thomson, P. J., and Taylor, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor Mr. Justice Taylor,

license: Public Domain

text:
    Dario L. Toffenetti, Appellee, v. J. W. D. Mellor et al., Appellants.
    Gen. No. 29,902.
    1. Agency — payment to designated agent as discharge of debtor. If an insured selected a representative of insurer as his agent to receive money from the insurer in payment of loss, payment of such loss to such agent would discharge the insurer.
    2. Agency — designation of agent to receive payment not made. Insured held not to have designated insurer’s representative as his agent to receive payment of a loss, though proof of loss contained agreement that “settlement in account with” a representative of the insurer should be a sufficient discharge of the insurer.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed October 28, 1925.
    Lord, Wire & Cobb, for appellants; Charles L. Cobb, of counsel.
    Millard R. Powers and Cesas & Leonard, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to recover a balance which he claimed was due him under an insurance policy issued by the defendants, insuring him against loss of rent accruing under leases on certain property in Chicago. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor for $3,461.70.

The parties filed a written stipulation of substantially all the facts in the case from which it appears that the defendants, underwriters, at Lloyd’s, London, issued through their agents, W. W. Barton & Company and Duffin & Company, the policy of insurance in question, whereby plaintiff was insured against loss of rent arising from certain premises, which he owned and which he had rented in Chicago. Barton & Company were insurance brokers, located in London, and Duffin & Company were brokers with offices in Chicago. It further appears from the stipulation that the terms of the insurance are set up in a “binder,” which was attached to and made a part of the policy - that the binder was signed and delivered for the underwriters to plaintiff by Duffin & Company; that it contained inter alia, the following: “In consideration of the stipulation herein contained, the several individual underwriters at Lloyd’s, London, as appears on contract on file in the office of Duffin & Company, Chicago, to which the binder specially referred.” And there was a provision that if the premium for the insurance was not received by Duffin & Company at Chicago within ten days from the date thereof, the binder would be of no force and effect; that payment by the assured to his broker should not constitute payment to Duffin & Company; that the binder might be canceled upon five days’ notice being given through Duffin & Company; that the binder was not to be valid unless signed by Duffin & Company. There was a further provision that the underwriters would not be liable under the policy unless the plaintiff gave notice in writing by registered mail to Duffin & Company, Chicago, within thirty days after the default in payment of any rent; that the policy might be canceled by the underwriters or by Duffin & Company upon return of any unearned premiums, and that the policy was not assignable without the consent of the underwriter, bearing the signature of Duffin & Company. The policy was dated November 1, 1922, and there was a default in payment of rent by plaintiff’s tenants, beginning December, 1922, of which default plaintiff notified Duffin & Company as representing, defendant. Duffin & Company took the matter up and on May 24, 1923, notified plaintiff in writing that they, as representatives of the underwriters, had canceled the policy on that date and inclosed their check to plaintiff for the unearned premium, stating, as their reason for canceling the policy, that they had been advised that the rental reserved by the leases was excessive for the location of the property. Afterwards plaintiff took the matter of the amount of the adjustment of his loss up with Toplis & Harding, insurance adjusters, located in Chicago, who were representing the defendants, and after considerable negotiation the amount of the loss was agreed upon between plaintiff and the defendants’ adjusters, and the adjusters having received the data from plaintiff, prepared a proof of loss, the proof of loss being made on a printed blank by filling in the necessary information in the blank spaces left for that purpose. This proof of loss was submitted by the adjusters to plaintiff and it was executed by him and it was apparently forwarded to the underwriters through their representatives to London, and upon receipt of it by the underwriters they paid the amount of the loss to their agents, Barton & Company at London, who in turn forwarded the money to the underwriters’ agents, Duffin. & Company, Chicago. Duffin & Company seems to have had some financial difficulties and failed to turn over to plaintiff all the money, so that there was remaining due plaintiff under his policy the amount for which he brought suit.

The defendants contend that payment by them to Duffin & Company discharged them from all liability and they base this contention on the fact that the proof of loss executed by plaintiff, above referred to, specifically authorized defendants to pay Duffin & Company in the discharge of their obligation. The proof of loss contained the following printed paragraph on which defendants rely: “I hereby make claim upon the insurers hereunder in the sum of $........in full and final settlement of loss and (or) damage referred to and hereby authorize Messrs. W. W. Barton and Company to collect this claim and I agree that settlement in account with them and by them with Messrs. Duffin and Company shall be a sufficient discharge to the underwriters and Messrs. W. W. Barton and Company.” Of course plaintiff might, if he saw fit, select Duffin & Company, or any other representative in Chicago, as his agent to receive the money for him and, if he did this, obviously the payment of such designated agent would discharge the defendants. But, in the instant case, the question whether Duffin & Company were the representatives of plaintiff to receive the money, as the defendants contend, is not to be determined alone by the one provision in the proof of loss but all the facts and circumstances as shown by the record must be taken into consideration and, when this is done, we think it clear that plaintiff in signing the proof of loss prepared by the defendants’ representatives did not make Duffin & Company his agent, so that payment to him would discharge the defendants. Duffin & Company were defendants’ agents in the execution of the binder, and the provisions of the binder show that Duffin & Company were given broad power. The premium was to be paid to them. They might cancel the policy if they saw fit. Notice of any default was required to be given by plaintiff to them. Plaintiff gave such notice and negotiations were had prior to the cancellation of the policy, and Duffin & Company after-wards canceled the policy and returned a part of the unearned premium. The printed blank upon which the proof of loss was made was prepared by the defendants’ representatives, the adjusters, and plaintiff did nothing more than to sign the proof of loss after it had been filled out by such adjusters. The selection of Duffin & Company to receive and pay out the money was for the sole benefit of the defendants. In these circumstances, we are in accord with the learned trial judge, who said, when deciding the case, that the proof of loss prepared as defendants required was so done to satisfy themselves, and that Duffin & Company were merely an instrument through which payment was to be made. The money not having been paid to plaintiff, he ,is entitled to recover and the judgment of the municipal court of Chicago is affirmed.

Affirmed.

Thomson, P. J., concurs.

Mr. Justice Taylor,

specially concurring: The insured said in writing that he would be satisfied to release the insurer if the money was paid to Duffin & Company, the insurer’s agent. The question arises whether a consideration in fact was given by the insurer for the act to be performed by the insured. What was contemplated was a unilateral contract, a promise on the part of the insurer and something to be done by the insured. But here the insured was already indebted to the insurer, and placing the money in the hands of Duffin & Company, its agent, was merely doing what it was already obliged to do in payment of its obligation of insurance. In other words, the insured was already indebted to the insurer, and by putting the money in the hands of Duffin & Company, its agent, it did not suffer any further detriment as the result of the insurer’s promise. Its position remained in statu quo. The insured had nothing after his promise that he did not have before.' It follows, therefore, that the promise of the insured was not binding or enforceable because there was no detriment to the promisee, nor advantage to the promisor.

The law on the subject is ably discussed in Willis-ton on Contracts, eh. YI, and although, as "there shown, it is still a subject on which courts take many different views, it seems reasonable to say, as applicable to the facts in this case, that where the promisee, the insurer, suffered no detriment and the promisor, the insured, receives no benefit, the whole transaction is but, in its nature, a midmn pactum.


author: Mr. Justice Taylor

text:
    Stanley S. Schaeffer, Administrator of the Estate of Frank Kerting, Deceased, Appellant, v. Albert J. Potzel et al., Appellees.
    Gen. No. 29,786.
    1. Judgments — dismissal binding until set aside or vacated. Court having jurisdiction of subject matter and parties before it who according to its judgment were the proper parties, and having pursuant to their agreement dismissed the cause, the dismissal constituted an adjudication which was binding until set aside or vacated, though there was error in substitution of parties.
    2. Judgments — grantees of property after judgment of dismissal held bona fide purchasers. Persons purchasing property after dismissal of cause affecting the property pursuant to an agreement between parties to the cause held entitled to he considered as bona fide purchasers as regards the lien of a judgment subsequently obtained after the order of dismissal was set aside.
    3. Judgments — jurisdiction to vacate order of dismissal at subsequent term. Court did not have jurisdiction at subsequent term of court to set aside and vacate an order dismissing the cause where only one of numerous defendants appeared by attorney, and the only notice of motion to set aside was that served upon the attorney representing only one of the defendants.
    4. Evidence — judicial notice of changes wrought during war. As respects laches wherein attorney showed that delay was due to his military service in France, the court takes judicial notice of the changes wrought in the year 1917.
    5. Sequestration — attorney serving in military forces not guilty of laches. Attorney for parties undertaking to have real estate sequestered for payment of judgment was not guilty of laches in not pressing the case where delay was caused by his entry into military service in France.
    6. Executions — levy abandoned by failure to advance fees. Where Judgment creditor failed to advance fees to advertise and sell property)'hnh'hailiff returned execution, no part satisfied, levy of execution was abandoned.
    7. Notice and becobd of title — vendee presumed without notice of subsequent conveyances and judgments. All persons dealing with property after date of record of deed by one who had been party to a suit which was dismissed are presumed to be free from charge of notice concerning any subsequent conveyances or judgments against the original grantor through the setting aside of the order of dismissal.
    8. Judgments — lien of judgment on land conveyed prior to rendition. Where party to action after its dismissal conveyed land and subsequently the order of dismissal was set aside and vacated and a judgment entered against the grantor, such judgment was not a lien on the land.
    9. Sequestbatton — persons interested in property entitled to intervene. In suit to have real estate sequestered for payment of judgment against a grantor, persons who had bought the property and had paid a valuable consideration for it were entitled to intervene.
    10. Equity — intervention discretionary with court. Intervention is a matter within the sound discretion of the court.
    11. Judgments — entry of order nunc pro tunc. Court held without authority to redocket a case which had been dismissed and enter an order nunc pro tunc as of a prior date.
    12. Appeal and ebkob — jurisdiction to enter order nunc pro tunc. Court had no authority to entertain motion to redocket case and enter an order nunc pro tunc as of a prior date where the motion and proposed decree were not made and presented until after appeal bond had been filed and approved, at which time the court had lost jurisdiction.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Oscab Hbbel, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed October 28, 1925.
    Rehearing denied November 10, 1925.
    Frank N. Reed, for appellant; Robert L. Floyd, of counsel.
    Charles L. Bartlett, George Gillette and Robert Humphrey, for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.

One Frank Kerting, on November 4,1916, filed a bill of complaint in the superior court undertaking thereby to have certain real estate sequestered for the payment of a judgment which he had obtained against one Mary F. Flood. Upon a trial before the chancellor, a decree was entered dismissing the bill for want of equity. This appeal is therefrom.

Nearly all of the evidence is documentary, so that there is little, if any, controversy as to the facts.

Mary F. Flood, on and prior to April 8, 1912, was the owner of a certain lot 7Q, the real estate in question subject to two trust deeds to Edward N. Weart. On April 8, 1912, by warranty deed, Mary F. Flood, together with Andrew J. Flood, her husband, conveyed the property to their son, Emmett M. Flood. That deed was recorded on April 10, 1912. By warranty deed dated February 10, 1916, recorded March 2,1916, Emmett M. Flood conveyed the property to Russell Q-. Flood, his brother. Later, on June 27,1916, Frank Kerting (the original complainant herein) recovered a judgment for the sum of $578.87, in the municipal court against Henry R. Planz, Mary F. Flood and Henry A. Planz.

On June 28, 1916, an execution was issued; and on January 17, 1917, it was returned reciting a levy on the interest of Mary F. Flood in the property; and on July 6, 1916, a certificate of the levy was filed in the office of the recorder of deeds. It also recited that the necessary fees for advertising the property not having been advanced, the execution was on January 17, 1917, returned, no part satisfied, and that it was served on Mary F. Flood on July 13, 1916.

On July 8, 1916, another execution was issued and on October 6,1916, returned, defendants not found and no part satisfied.

The bill of complaint herein was filed on October 4, 1916. Russell Gr. Flood was served with summons on October 5,1916, and Emmett M. Flood, on January 25, 1917. ° No service was had on Mary F. Flood. On February 9, 1917, an order of default for want of an answer was entered against Emmett M. Flood, and it Was ordered that the bill of complaint “be and is hereby taken pro confesso by and against the said defendant for want of an answer.”

On April 4, 1917, a summons was issued against Mary F. Flood, impleaded with Emmett M. Flood and Bussell G-. Flood. It was returned on May 7, 1917, “not found.”

On May 29, 1918, Mrs. Sedan Smith and Augusta Battray suggested the death, on February 25, 1917, of Frank Kerting, and, as the only surviving heirs, and as no administrator had been appointed, petitioned the court that they be substituted as complainants.

On the same day, Bussell Flood suggested the death of Mary F. Flood, a defendant, and as no administrator had been appointed, and as she left as her only heirs at law Andrew J. Flood, Alice Power and Mary Green, her daughters, Thomas A. Flood, Emmett M. Flood and Bussell G. Flood, her sons, and certain others named as husbands or wives of her daughters and sons, petitioned the court that they be substituted as defendants.

On the same day, May 29, 1918, “on motion of solicitor for defendants, and by agreement of parties, ” ah order was entered making the substitutions asked for. The same order, also, dismissed the suit. The words on that subject are as follows: “By agreement of parties and motion of Mrs. Sedan Smith and Augusta Battray, complainants, it is ordered that the cause be dismissed without costs.”

On June 1, 1918 (recorded June 4, 1918), Bussell G. Flood and Helen M. Flood, his wife, by warranty deed conveyed the property to John W. Burton. On June 25,1918 (recorded June 27,1918), John W. Burton, widower, by warranty deed, conveyed the property to Jeremiah Madigan and Della Madigan as joint tenants. On July 14, 1919 (recorded July 17, 1919), Jeremiah and Della Madigan, by warranty deed, conveyed the property to Albert J. Potzel and Jessie Potzel (his wife) as joint tenants.

On July 14, 1919, nearly fourteen months after the order dismissing the suit, Frank N. Eeed, as “attorney for complainant,” and Callahan & Callahan, “atty., for Admr.” served notice on M. W. Cagney by leaving a copy of the notice at the office of Cagney, that on July 15, 1919, they would ask that the order of May 28, 1918, dismissing the suit, be vacated and set aside, and that the executor be substituted as complainant.

A motion and affidavits in support thereof were filed on July 17, 1919. The chief matters set up in the affidavits were that Frank N. Eeed, who filed the bill of complaint herein was in military service and left for France on December 24, 1917, and did not return to Chicago until May 22, 1919; that no service of notice was had upon him, and that he knew nothing of the order of May 29, 1918, until a few days before making his affidavit. In opposition to the motion asking that the order of May 29, 1918, be vacated, an affidavit was filed on July 17, 1919, by M. W. Cagney, solicitor of record for the defendants. In that affidavit he alleged that on or about May 15, 1918, in undertaking to bring the cause to an issue or have it adjusted, he went to the office of Frank N. Eeed, and was there told that he was in Europe, and that no one had charge of his litigation; that then when he learned that Frank Kerting had died, he sought out the relatives of the deceased, Mrs. Sedan Smith, and Augusta Eattray, daughters of Kerting, deceased; that he got them to go into court and made a settlement; that the death of Frank Kerting was suggested upon the record and the suit dismissed by agreement of the parties, and Mrs. Sedan Smith and Augusta Eattray paid $25 each in settlement of the suit.

On July 17, 1919, the court entered an order, on motion of the administrator of the estate of the complainant, Frank Kerting, substituting Stanley S. Schaeffer as complainant in the cause. An order was also then entered, “that the order herein, dated May 29, 1918, in so far as it substituted Mrs. Sedan Smith and Augusta Rattray, complainants, and dismissed this cause, be and the same is hereby vacated, set aside and held for naught,” and that the cause be reinstated and redocketed, and that the defendants plead, answer or demur within thirty days. It was further ordered “that Mrs. Sedan Smith return to the defendants, or their solicitor, $50 paid her by them, in ten days from this date. ’ ’ On November 8,1920, on motion of the solicitor for the complainant, the demurrer and the plea of the defendant, Russell G. Flood, were overruled, and the defendant ordered to answer within ten days.

On December 29, 1920, it was ordered that the bill be taken as confessed as to the defendant Russell G. Flood; and on December 29, a summons was issued against the defendants Andrew Flood, Alice Power, Joseph Power, Thomas A. Flood, Catherine Flood, Mary Green, George Green, Josephine Flood, Helen Flood, impleaded with Russell G. Flood, and Emmett M. Flood, to answer Stanley S. Schaeffer, administrator of the estate of Frank Kerting. That summons was returned served on Alice Power, Maiy Green and Thomas A. Flood. On February 14, 1921, the three last-named defendants were defaulted, and an order entered that the bill of complaint be taken pro confesso against them for want of an answer.

On February 28, 1921, Albert J. Potzel and Jessie Potzel filed a petition asking leave to become parties defendant, and that they be allowed to answer the bill of complaint. On February 28, 1921, an order was entered granting them leave to become parties defendant and to answer the bill of complaint. On the same day, Albert J. Potzel and Jessie Potzel filed their answer in and by which they set forth various deeds and conveyances hereinbefore mentioned; that the said John W. Burton, Jeremiah Madigan and Della Madigan, and themselves, the petitioners, each purchased said real estate and paid full value therefor, relying upon the records of Cook County, Illinois, without, any notice or knowledge, either actual or constructive, of the alleged claims of Frank Kerting or the complainant.

On March 5, 1921, exceptions to the answer of the Potzels were filed on behalf of the complainant. On July 10,1923, the following order was entered: “This cause being this day called upon the general call, pursuant to the order heretofore entered on the 5th day of June, A. D. 1923, it is ordered that said cause be and is hereby stricken from the several dockets of this court.” On December 22,1923, an order was entered, on motion of the solicitor for the complainant, that the cause be “reinstated to be placed at issue within thirty days.” On January 19, 1924, exceptions were filed on behalf of the complainant to the answer of the intervening defendants, Albert J. Potzel and Jessie Potzel.

On May 21, 1924, on motion of the solicitor for the complainant, the bill was dismissed as to Joseph Power, Catherine Flood, George Green, Josephine Flood and Helen Flood.

At the hearing before the chancellor, beginning May 21, 1924, in addition to the documentary evidence, there was introduced the testimony of Fred W. Story, Vincent M. Reed and Albert J. Potzel. Story testified —his testimony being admitted, but not against the Potzels, the interveners — that at a hearing on a citation in the estate of Mary F. Flood, Emmett M. Flood stated that his mother deeded the property to him and that he paid her one dollar as the consideration; that up to that time she owned it; that he lived on the premises with his mother and father and paid them board; that at the hearing on the citation a Mrs. Green testified that Emmett M. Flood was under age at that time. Reed testified — his testimony being restricted as Story’s was — that Mary F. Flood, when he visited her in April or May, 1916, said: 1 ‘ This is for sale and it is my own property”; that, “The son made the statement that the property, as I remember it, he said, is in my name, after she had represented it right along, right in front of him as being her own property. ’ ’

Potzel, one of the interveners, testified that he and his wife bought the property in question from the Madigans and paid therefor, as a consideration, $6,800, which was made up of $3,200 in cash, and the balance in a mortgage. On cross-examination he testified that Madigan told him that he and his wife owned the property; that he employed the Chicago Title and Trust Company to look the matter up, and that company gave him a guaranty policy.

At the close of the hearing, on June 5, 1924, the chancellor entered a decree dismissing the bill for want of equity.

On October 15, 1924, a motion was made on behalf of the complainant that the court redocket the cause and enter a decree nunc pro tunc as of February 14, 1921, against Bussell G-., Emmett M. and Thomas A. Flood, and Alice Power and Mary Green. On October 21,1924, that motion was denied. This appeal is from the above-mentioned decree of June 5, 1924.

The following matters are here considered: (1) the order of May 29, 1918; (2) laches; (3) the judgment, as a lien; (4) the right to intervene; and (5) the motion of October 15, 1924, to redocket and to enter an order nunc pro tunc.

(1) There is no doubt but that Kerting had the right, on October 4, 1916, under the law, to file his bill of complaint and undertake to sequester the property in question for the payment of the judgment which he had obtained on June 27, 1916, against Mary F. Flood. The record shows that after the bill of complaint was filed, and after the death of Kerting on February 25, 1917, the court by agreement of the parties, and upon representations made on behalf of all the parties, complainants and defendants, entered an order, — owing to the death of Kerting and Mary F. Flood — substituting different parties as complainants, and adding and substituting different parties as defendants. And that the court then entered, on May 29, 1918, on motion of the new complainants, and “by agreement of the parties,” an order “that the cause be dismissed without costs.”

What then was the situation if it turned out that the substitutions for the original complainant were erroneous? It is claimed that it would show that the decree of May 29, 1918, was void. But the court having jurisdiction of the subject matter, and having jurisdiction over the parties before it, who, according to its judgment, were the proper parties, and having, pursuant to their agreement, dismissed the cause, that, under the law, constituted an adjudication and, so, became binding until set aside or vacated; it was not void. Finlen v. Shelly, 310 Ill. 170. “Where the jurisdiction of the court depends upon a fact which it is required to ascertain, its judgment determining that such fact does or does not exist is conclusive on the question of jurisdiction, until set aside or reversed by direct proceedings.” 15 C. J. p. 852, sec. 173. From that, it follows that the Potzels were justified in relying upon the order of dismissal of May 29, 1918. Being presumed to have relied upon that order and purchased the property in question, and having paid therefor a valuable consideration, they are entitled to be considered as bona fide purchasers.

In Claflin v. Dunne, 129 Ill. 241, it was held that even where jurisdiction was obtained over the defendant in his lifetime, a judgment rendered against him, even subsequent to his death, was not void, and that although a court ought to refrain from exercising jurisdiction over a party after his death, “its failure to do so is an error to be corrected upon appeal, if the fact of the death -appears upon the record, or by writ of- error coram nobis, if the fact must be shown aliunde.”

It is urged that the order of May 29, 1918, dismissing the suit was void, on the ground that no notice had been served on the administrator of the estate of Kerting, deceased, of the motion to dismiss. But the record shows that Schaeffer, the administrator, was not a party to the suit, and there was nothing in the records of the case showing that any letters of administration had ever been issued in the estate of Kerting, deceased. And, further, the only record before the court showed that no administration had ever been issued on that estate. As a matter of fact, all the parties to the suit were before the court and requested and agreed that the order of dismissal be entered.

Did the court have jurisdiction at a subsequent term of the court to set aside and vacate the order dismissing the cause? In other words, did the court have authority on July 17, 1919, to set aside and vacate the order of May 29, 1918? The record shows that no notice of the motion made on July 17, 1919, to set aside the order of dismissal of May 29, 1918, was legally served on any of the defendants, and that the notice of the motion to set aside and vacate the dismissal order was served on 1ST. W. Cagney, and on no one else, whereas, Bussell Gr. Flood and Emmett M. Flood had been served with summons; and that all the other heirs of the deceased defendant, Mary F. Flood, had voluntarily appeared in the cause and been substituted, and not one of the defendants, except Bussell Gr. Flood, had ever appeared by an attorney. Obviously, the notice to Cagney, after the dismissal of the case, was insufficient.

(2) It is argued for the petitioners, the Potzels, that laches is a bar to the complainant’s claims. The suit was dismissed on May 29, 1918. Bussell Gr. Flood deeded the property to Burton on June 4, 1918. Burton deeded it to the Madigans on June 25, 1918. The latter deeded it to the Potzels on July 14, 1919, and they gave a valuable consideration for it. The order vacating the order of dismissal was entered on July 17, 1919, more than a year after the date of the order of dismissal. In the affidavit of Frank N. Beed, in support of the motion of July 17, 1919, to vacate the order of dismissal, it is stated that he was the solicitor for the complainant and was in the military service and left for France on December 24, 191.7, and did not return to Chicago until May 22, 1919; that no service of notice was had upon him, and that he knew nothing of the order of May 29,1918, until just before the date of his affidavit. It will be seen that the suit was dismissed about five months after the solicitor, in military service, went to France. It is true that the original complainant, Kerting, died on February 25, 1917, and a substitution might have been made between that date and December 24, 1917, but we are mindful of and take judicial notice of the changes wrought in the year 1917, and certainly cannot justifiably charge Beed, the solicitor of Kerting, with laches in not pressing the case; doing the greater condones the less. It may well be that if Beed had not been in the military service in 1917, and in France from December, 1917, to nearly June, 1919, that the seemingly erroneous substitution and the agreement to dismiss and the dismissal itself would not have taken place on May 29, 1918. We do not, therefore, consider laches as a bar.

(3) It is urged for the complainant that the judgment was, and remained, a lien on the property in question. But the evidence shows that by reason of the failure of the judgment creditor to advance the fees to advertise and sell the property, the bailiff returned the execution, no part satisfied; and, also, the evidence shows that an alias execution was issued on July 8, 1916, all of which proves that the levy was abandoned. In Freeman on Executions, sec. 271 (3rd Ed.), the law* is stated as follows:

“The only proper object of a levy is to compel satisfaction of the writ out of the property seized, and if the plaintiff, by his long delay in following his levy by a sale, or by directions to return the writ unsatisfied, or by any other course of action, indicates that his employment of the writ is not to coerce the prompt payment of his debt, then the levy is abandoned.”

All persons dealing with the property after the date of the record of the deed by Mary F. Flood to Emmett M. Flood are presumed to be free from the charge of notice concerning any subsequent conveyances or judgments against Mary F. Flood. Chapter 30, ¶ 31, Cahill’s St. 1923. Milmine v. Burnham, 76 Ill. 362; 23 R. C. L. 210. Our decision is that the mesne conveyances, made after May 29, 1918, when the suit was dismissed, that is by Russell Gr. Flood to Burton on June 4,1918, by Burton to the Madigans on June 25, 1918, and by the Madigans to the Potzels on July 14, 1919, all after the order of dismissal and before the order of reinstatement on July 17, 1919, resulted in title to the property, subject to the trust deeds, vesting in the Potzels free and clear of any lien of the judgment in question. The judgment was not rendered against Mary F. Flood until June 27, 1916, whereas she conveyed the property to Emmett M. Flood on April 8, 1912, and the latter conveyed it to Bussell Gr. Flood on February 10, 1916; and so the judgment was not a lien on the property. In Davidson v. Burke, 143 Ill. 139, the court said:

“And in Rappleye v. International Bank, 93 Ill. 396, it was also held by this court that a judgment is no lien on lands fraudulently conveyed by the debtor before the judgment was recovered, and that the debtor in such case has no equitable or legal title upon which a lien can attach.”

(4) It is claimed that the Potzels had no right to intervene. But the evidence shows that they had bought the property in question and had paid a valuable consideration for it, and so. were particularly interested in maintaining their title free from any proceedings under the judgment. When, therefore, they petitioned to be made parties they had substantial rights which it was equitable for the court, in that suit, to entertain and consider. Intervention is a matter within the sound discretion of the court. Here the question involved was the ownership of a specific res; each made claims in conflict with each other concerning the same property. Their relations were much the same as the defendants to a bill of inter-pleader. 21 C. J., sec. 338. As quoted in Gunderson v. Illinois Trust & Savings Bank, 100 Ill. App. 461, from Foster v. Mansfield, C. & L. M. R. Co., 146 U. S. 88: “The application of the petitioner is addressed to the sound discretion of the court.” Inasmuch as the cause was still pending and no final decree had yet been entered, and the Potzels alleged they had valuable rights which would be involved and endangered if they were not allowed to take part in the litigation, we are of the opinion that the chancellor did not err in allowing them to intervene.

(5) As to the motion of October 15, 1924, to re-docket the case and enter an order nimc pro tu/nc as of February 14, 1921, the court had no authority at that time to grant such a motion. People v. Rosenwald, 266 Ill. 548. Further, the motion and the proposed decree were not made or presented to the chancellor until after the appeal bond had been filed and approved, and at tha,t time the court had lost jurisdiction.

Certain contentions are made concerning the ruling of the trial judge on matters of evidence, but upon examining them, we find that they are untenable.

After carefully examining the record and considering all the matters involved, we are of the opinion that the chancellor was right in dismissing the bill for want of equity.

The decree, therefore, will be affirmed.

Affirmed.

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


text:
    Sam Orner, trading as Sam Orner & Company, Appellee, v. J. H. Liner, Appellant.
    Gen. No. 29,820.
    1. Negotiable instruments — holder of check expected to bank it in reasonable time. The holder of a check is expected to bank it within a reasonable time.
    2. Escrows — holder of check without cause of action against drawer. Where contract of sale of land was entered into and purchaser gave agent check to be held by him as escrowee for the mutual benefit of vendor, purchaser and agent, and purchaser stopped payment on the check, the agent was not entitled to recover in an action against the purchaser where he was not entitled to any commission until a consummation of the sale, no sale having been consummated.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Reversed and remanded.
    Opinion filed October 28, 1925.
    Morton A. Mergentheim: and David Olshan, for appellant; Morton A. Mergentheim, of counsel.
    Morris & Mills, for appellee; M. A. Mills, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment in the municipal court in the sum of $1,000, in favor of the plaintiff and against the defendant.

The statement of claim of the plaintiff alleges that on April 16, 1924, the defendant issued a check on that date, drawn on the Continental and Commercial National Bank of Chicago, payable to the order of the plaintiff, in the sum of $1,000, which was signed by the defendant, J. H. Liner, and indorsed on the back, “S. Orner & Co. — Sam Orner.” It further alleges that the check was duly presented by the plaintiff to the bank for payment, but that payment was refused on the ground that the defendant had instructed the bank not to pay the check when presented for payment. It further alleges that the check was issued for a valuable consideration, and that the plaintiff was the legal holder thereof.

On June 6, 1924, the defendant filed a second amended affidavit of merits. That apparently supplanted the original affidavit of merits, which was filed May 22, 1924, although the record does not show any order concerning the original affidavit of merits.

The second amended affidavit of merits, the one here in question, admits that the defendant, on April 16, 1924, executed a check, as set forth in plaintiff’s statement of claim, but the defendant alleged in that pleading that “it was understood and agreed by and between him and plaintiff that said check was not to be deposited by plaintiff until Abraham Shayne and Sylvia Shayne, his wife, had performed their part of a certain real estate contract,” which was attached to the plaintiff’s earlier affidavit of merits, “that plaintiff had and has no interest in said check until the consummation of said contract, and that under the terms of said contract whatever moneys he was to receive as earnest moneys were to be held by him as escrowee, for the mutual benefit of said Shaynes and this defendant; that under the law plaintiff is not the party entitled to bring suit upon said check, if any party is so entitled; that the said Shaynes have failed to perform their part of the contract above referred to, and that the check is not a binding obligation upon the defendant until performance or tender of performance of the contract by the Shaynes.”

On July 18,1924, on motion of the plaintiff, the trial judge struck the above-mentioned amended affidavit of merits from the files. The order entered at that time shows that the defendant elected to stand upon his amended affidavit of merits. It also shows that the defendant being in default for want of an affidavit of merits of defense, on motion of the plaintiff, a default was entered against the defendant for want of an affidavit of merits, and that judgment was entered against the defendant in the sum of $1,000, together with interest.

It is urged for the defendant that the facts alleged in the amended affidavit of merits show that the plaintiff was neither the legal nor the beneficial owner of the check, and, therefore, had no legal right to bring suit; that as it was alleged in the affidavit of merits that it was understood and agreed between the defendant and the plaintiff that the check was not to be deposited by the plaintiff until Shayne and his wife had performed their part of the real estate contract, the plaintiff had no right to institute this suit.

In considering' the defense set up in the amended affidavit of merits, the question arises, it being admitted that the plaintiff was entitled to possession of the check, which was given by the defendant, did that possession entitle the plaintiff, immediately after the check was refused payment by the bank at the instigation of the defendant, to begin suit on the check against the maker, the defendant?

In Geliebter v. First Nat. Bank of Chicago, 194 Ill. App. 339, this court considered some of the principles applicable in the instant case. In that case a real estate agent sued a bank for the amount of two checks which had been deposited by a purchaser of a piece of real estate with the real estate agent as earnest money. The purchaser filed a bill to enjoin the prosecution of that suit, and obtained a temporary injunction. There was then a trial of the chancery case, and it was held that the purchaser had failed to perform his obligations under the contract, and that, accordingly, the earnest money was forfeited as liquidated damages. Doppelt v. Geliebter, 173 Ill. App. 634. On the ground that the decree in the latter case was res adjudicata, this court held in considering an appeal from a judgment in the suit at law in the municipal court for the amount of the two checks which were deposited with the agent as earnest money, that (1) the defendant was not entitled to set up as a defense a conditional delivery of the checks, and (2) that “as it is the duty of an escrow holder to collect the money due upon a check deposited with him as money, and hold the proceeds instead of the check, it would have been a fraud upon Rusnak (the seller) to carry out any such agreement.”

Here, although we said in the Geliebter case — 194 Ill. App. 339 — that it was the duty of an escrow holder to collect the money due upon a check deposited with him as money, and hold the proceeds instead of the check, it does not follow that the plaintiff in this case, after the defendant had directed the bank to stop payment on the check, had a cause of action against the defendant for the amount of the check.

If an agent held such a check pending protracted negotiations which might occur, and meanwhile the depositary or bank on which the check was drawn failed, it would probably be urged for the drawer that the agent had been guilty of negligence and, so, liable for damages. Of course a check is not currency or money; and without anything further, the holder of the check is expected to bank it within a reasonable time.

In determining, however, the plaintiff’s alleged cause of action, it is necessary to consider the relationship of the plaintiff with the defendant Liner, the purchaser of the real estate, and with Shayne, the seller. The contract, which was set up in the affidavit of merits, was between the buyer and the seller, and it provided that if certain _ things were not done by the seller within sixty days, the contract might, at the purchaser’s option, become void, and that the earnest money should be returned. It also provided that if the purchaser failed to perform his part of the contract, the earnest money, at the option of the vendor, should be retained by him as liquidated damages. It also provided that the earnest money should be held by the agent for the mutual benefit of the parties, and that after the consummation of the sale, it should be applied by him, first, in payment of certain expenses, and second, to the payment to him as the vendor’s broker of a commission of $1,000, for his services in procuring the contract. The contract was, therefore, tripartite, and each of the three, the buyer, seller and agent, became interested in the outcome. As far as the agent is concerned, the plaintiff herein, the written contract contained the promise on the part of both buyer and seller that he should have, out of the earnest money, the balance of $1,000, after certain vendor’s expenses had been paid, that is, after the consummation of the sale. It would seem, however, that until after the consummation of the sale, the plaintiff had no right of action against the defendant, the purchaser of the property. We assume that it was his duty to present the check for payment at the bank within a reasonable time, as we stated in the OelieMer case, as a matter of commercial diligence, and in order that he might not be charged with negligence; and when he presented it for payment, there is no doubt but that he had done his full duty. But, having done that, and the bank having refused payment at the direction of the defendant, it does not follow that a cause of action arose in his favor against the defendant. He gave the defendant no consideration for the check. There merely existed at that time, as to him, the promises on the part of the buyer and seller, as contained in the written contract, that he should receive a certain commission out of the earnest money “after the consummation'of the sale.” We do not here pass upon the relations between the purchaser and seller growing out of the purchaser’s directions to the bank to stop payment of the check, but we are bound to conclude that the facts set up in the amended affidavit of merits disclose a good defense to the plaintiff’s claim. It follows, therefore, that the trial judge erred in striking the amended affidavit of merits.

The judgment will be reversed and the cause remanded.

Reversed and remanded.

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


text:
    Herman Orschel et al., Appellees, v. Sigmund K. Rothschild, Appellant.
    Gen. No. 29,829.
    1. Limitations of actions — causes of action arising out of state. Where contract of indemnity was made in another State and was mailed to indemnitee in State, the obligation of the indemnitor was to pay to indemnitee what was due, and the money being due in the State the cause of action arose within the State upon default and nonpayment, and did not arise out of the State within the meaning of Cahill’s St. ch. 83, If 21.
    2. Limitations of actions — application of statute as to causes of action accruing in other States. Cahill’s St. ch. 83, If 21, relating to time for bringing actions on causes of action arising out of the State only, applies to causes where both debtor and creditor are nonresidents of the State when the cause of action accrues, in view of paragraph 17.
    3. Interest — error in pleading as estopping from recovery. The fact that statement of claim erroneously stated law applicable to interest did not estop plaintiff from recovering interest.
    4. Former adjudiction — nonsuit is not estoppel in subsequent suit. A proceeding wherein plaintiff suffers a nonsuit is not an estoppel to a subsequent suit.
    5. Appeal and error — improper admission of evidence held immaterial. Where case was tried by the court without a jury and on the theory that merits of case involved statute of limitations, objections on appeal to admission of improper evidence are not tenable.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding. Heard in the third division of the court for the first district at the October term, 1924.

      Affirmed.
    Opinion, filed October 28, 1925.
    Rehearing denied November 10, 1925.
    Altheimer & Mayer, for appellant; Morton A. Mergentheim, of Counsel.
    Moses, Kennedy, Stein & Bachrach, for appellees; Robert Bachrach and Walter H. Moses, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

On November 11,1920, Herman Orschel, individually and as surviving partner of Herman Orschel and Isaac Orschel, doing business as I. Orschel and Brother, and Belle Orschel, executrix under the will of Isaac Orschel, deceased, plaintiffs brought suit in the municipal court, on a contract of indemnity against Sigmund K. Rothschild, the defendant. The name of the plaintiff was subsequently changed to read as follows: Herman Orschel, as surviving partner of the partnership composed of himself and I. Orschel, doing business as I. Orschel & Brother, plaintiff, for use of Herman Orschel and Belle Orschel, also known as Mrs. Belle Orschel Weil.

There was a trial before the court without a jury, and on February 18, 1924, a judgment in favor of the plaintiff in the sum of $12,900. This appeal is from that judgment.

The theory of the plaintiff is that on October 31, 1910, the defendant, Sigmund K. Rothschild, signed and sealed and became bound by a written contract of indemnity, indemnifying the partnership of I. Orschel & Brother in case the latter suffered loss by indorsing commercial paper of Rothschild & Brother, and that subsequent to the making of the indemnity contract the partnership lost by indorsement of such paper of Rothschild & Brother the sum of $8,600 and certain interest.

The theory of the defendant is that as the last payment made by the plaintiff, by which he suffered a loss under the contract of indemnity, was on February 9,1914, and this suit was not begun until November 11, 1920, more than six years thereafter, and the contract of indemnity was made in Detroit, Michigan, where the defendant resided, and the law of Michigan provides a six-year limitation for suits on written contracts, and as the Illinois law provides that when a cause of action has arisen in a state or territory out of this state, and by the laws of the foreign state an action cannot be maintained there by reason of the lapse of time, no such action may be maintained in this state and the defendant’s plea of the statute of limitations is a bar to this suit.

There is practically no dispute about the material facts. The suit is based on a contract of indemnity dated October 31, 1910, at Detroit, Michigan, and signed by the defendant and certain other persons, which provides substantially that the signers, including Rothschild & Brother, a Michigan corporation, and four members of the Rothschild family, including the defendant, together with Moses Schott, “jointly and severally agreed to hold the said Isaac Orschel and Herman Orschel and the firm of I. Orschel & Brother harmless from all loss or damage which they or either of them may sustain * * * resulting either directly or indirectly from the endorsement or guarantee by the said Isaac Orschel or the said Herman Orschel or the firm of I. Orschel & Brother of either the commercial paper or indebtedness of said Rothschild & Brother at any time hereafter.”

The indemnity contract was sent by mail from Detroit, Michigan, on October 31, 1910, and received at Chicago by the plaintiff on November 1, 1910. Immediately after the execution of the indemnity agreement, I. Orschel & Brother indorsed certain commercial paper for Rothschild & Brother. That paper was renewed from time to time, and certain payments made by I. Orschel & Brother, on account of its indorsements thereon, until, on February 9, 1914, when the last payment was made, there was due to I. Orschel & Brother, on account of its indorsement of the com- . mercial paper of Rothschild & Brother, a balance of $8,600 which has never been paid. That, together with interest, is the account for which this suit was brought.

The evidence shows that the defendant, Sigmund K. Rothschild, and all the other indemnitors were residents of Detroit, Michigan, during the entire period between February, 1914, and February, 1920, except one Moses Schott, who died in 1919; and that Herman and Isaac Orschel at the time the contract of indemnity was made, and ever since, were residents of the State of Hlinois.

The statute of limitations of the State of Michigan in regard to written instruments provides that: “All actions in any of the courts of this State shall be commenced within six years next after the causes of action shall accrue, and not afterward,” with certain exceptions which are here immaterial. (Section 12323, Compiled Laws of Michigan 1915.)

The law in Illinois in regard to written instruments, which includes a contract of indemnity, such as the one in question here, provides that action “shall be commenced * * * -within ten years next after the cause of action accrued.” (Chapter 83, j[ 17, Cahill’s St. 1925.)

It is claimed for the defendant that the Michigan limitation of six years and not the Illinois limitation of ten years is applicable in this suit, in this State, as the result of applying section 20 of chapter 83 of the Illinois statute (Cahill’s St. ch. 83, f 21). That section provides as follows:

“When a cause of action has arisen in a State or Territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.”

■ It has been held, however, in a number of cases in this State that such an action as this can be maintained within the Illinois limitation of ten years, where the plaintiff is at the time the cause of action accrued, and has been ever since, a resident of the State of Illinois, even though meanwhile the time provided by the law of the foreign State ha.s expired.

The action here accrued on February 9, 1914. At that time, and when and since the contract was made, the plaintiff was and has been a resident of Illinois, and the defendant a resident of Michigan.

The contention for the plaintiff is that the uniform construction of section 20 has been that it applies only to a case in which both parties, creditor and debtor, resided outside of the State of Illinois, when the cause of action accrued. The following cases are cited in support of that claim: Story v. Thompson, 36 Ill. App. 370; Berry v. Krone, 46 Ill. App. 82; Emerson v. North American Transportation & Trading Co., 303 Ill. 282; Hibernian Banking Ass’n v. Commercial Nat. Bank, 157 Ill. 524; Chicago Mill & Lumber Co. v. Townsend, 203 Ill. App. 457; Delta Bag Co. v. Frederick Leyland & Co., Ltd., 173 Ill. App. 38; McGuigan v. Rolfe, 80 Ill. App. 256.

In order to interpret properly section 20, it is necessary to have in mind the provisions of section 18 of the same statute. That section is as follows: “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the times herein limited, after his coming into or return to the State; and if, after the cause of action accrues he departs from and resides out of the State, the time of his absence is no part of the time limited for the commencement of the action. But the foregoing provisions of this section shall not apply to any case, when, at the time the cause of action accrued or shall accrue, neither the party against nor in favor of whom the same accrued or shall accrue, were or are residents of this State.”

There seem to be two reasons why section 20 does not apply to the facts in this case. First. Here the cause of action arose on February 9, 1914, when the last payment was made by the plaintiff on account of its indorsements. From that time on, the defendant was in default. The balance unpaid was then due the plaintiff in Chicago. It is the obligation of the defendant under the indemnity contract to pay to the plaintiff what was due, and not the obligation of the latter to seek the former. The money was due in Chicago to the plaintiff, and it follows that the cause of action arose here immediately upon default and nonpayment. Putting that construction on the facts, section 20, which covers only cases where “a cause of action has arisen out of this State,” is inapplicable.

Second. The action here accrued on February 9, 1914. At that time, and when and since the contract ■ was made, the plaintiff was and remained a resident of Illinois, and the defendant was all that time a resident of Michigan. In such a case, that is of diverse residence, it has been held that section 20 does not apply, and that section 20 only applies to cases where both debtor and creditor are nonresidents of this State when the cause of action accrues. The interrelationship of sections 18 and 20 are well set forth by Mr. Justice Wall in the Berry case, Supra. He there says:

“It will be seen that by the second paragraph of section 18, it is provided that the preceding provisions are not to apply to any case where neither debtor nor creditor resides in the State when the cause of action accrues. Section 20 then applies to the cases not covered by section 18; that is, to cases where both debtor and creditor are nonresidents when the cause of action accrues. It cannot be supposed that the legislature intended by section 20 to nullify and sweep away the provision contained in section 18, and yet this is what has been done unless section 20 is construed to apply only to those cases which are, by the latter clause of section 18, carved out and excepted from its operation.” Citing the Story case, supra.

Counsel for the defendant have cited Hyman v. Bayne, 83 Ill. 256. In that case the court held that as the cause of action was barred by the Maryland statute of limitations, it followed that, under section 20 of the Limitation Act of Illinois, the plaintiff could not recover; but in that case the facts were not as here; there both parties were foreign residents. That is obvious from the following language of the court: “The question is whether under our limitation laws in force prior to the act of 1872, when both parties have at all times resided continuously beyond the limits of this State for the statutory period, a bar to a recovery is created.” In the Delta Bag Co. case, supra, the court said: “Section 20, in our opinion, is not applicable. It applies only where both parties reside out of the State at the time the action accrues and continue to be nonresidents until the limitation laws of the foreign State have run. This view is supported by Davis v. Munie, 235 Ill. 620, in which the case of Hyman v. Bayne, 83 Ill. 256, cited by the plaintiff, is distinguished.” In the Chicago Mill & Lumber Co. case, supra, the court said: “It is well settled, however, that the Arkansas statute of limitations does not apply unless the parties were nonresidents of Illinois at the time the cause of action accrued. This is the construction placed upon section 20 of the Illinois Act by the courts of review in this State.” In the McGuigan case, supra, the court went so far as to hold that section 20 must be limited and confined to the causes where not only both parties resided out of this State when the action accrued, but where both parties continued to reside out of this State, and “so remained until an action was barred in and by the laws of the foreign State where the domicile existed.” The cases cited for the defendant, such as First Nat. Bank of Boulder v. Hurlbut, 224 Ill. App. 297; Collins v. Manville, 170 Ill. 615; O’Donnell v. Lewis, 104 Ill. App. 198; Great Western Tel. Co. v. Stubbs, 55 Ill. App. 210, in no way tend to show that any other interpretation has been made of section 20 than that above mentioned. There are some further cases, such as Osgood v. Artt, 10 Fed. 365, and Pond Creek Mill & Elevator Co, v. Clark, 270 Fed. 482, which are contra, but we feel bound to follow the decisions of our own State courts.

A number of cases have been called to our attention by counsel for the defendant as tending to show that section 20 is applicable here. We have examined them, however, and do not find that any of them support that position.

It is urged for the defendant that the plaintiff in its amended statement of claim claimed interest according to a Michigan statute, and if the law of Michigan is not applicable, then there is no claim for interest and no interest should be allowed. In the first paragraph of the statement of claim appear the words, “Plaintiffs allege that their claim herein is for $8,712.50 and interest accruing thereon at five per centum per annum; as more fully hereinafter appears.” At the end of the statement it is alleged that at the time the contract of indemnity was executed there was in force a certain Michigan statute which provided for interest at not exceeding seven per cent per annum. We think that the state of the pleadings should not prevent the plaintiff from recovering interest according to the law of this State. The statement of claim informed the defendant that interest would be claimed, and that was sufficient. The fact that the amended statement of claim erroneously stated the law applicable does not estop him from recovering what he was justly entitled to.

The evidence shows that the plaintiff at one time began suit on the same claim in Detroit, Michigan; it also shows that the plaintiff suffered a nonsuit. That, of course, prevents that proceeding from being in any way an estoppel to this suit. A number of objections are made on the ground that improper evidence was allowed to be introduced; but considering that the case was tried by the court without a jury, and that it Was tried on the theory that the merits of the case involved the statute of limitations, we do not find any of them tenable.

Inasmuch, therefore, as the plaintiff had ten years from February 9, 1914, in which to institute suit and the suit was begun before that ten-year period expired, it was in apt time and was not barred by the statute of limitations.

The judgment, therefore, will be affirmed.

Affirmed.

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


author: Mr. Justice Taylor Mr. Presiding Justice Thomson

text:
    Walter E. Heller & Company, Inc., for use of Edward T. Kennedy, Appellee, v. International Indemnity Company, Appellant.
    Gen. No. 29,881.
    1. Insurance — finding of injury to automobile by collision sustained by evidence. In action on indemnity policy for damages to automobile, evidence held to justify finding that automobile was damaged by violent striking or colliding with bank of ditch.
    2. Insurance — bank of ditch “object” in automobile accident policy. Bank of ditch at roadside was “object” within policy insuring against damages to automobile caused “by being in accidental collision during the period insured with any other automobile, vehicle or object.”
    3. Insurance — negligence of driver no defense in action on indemnity policy. In action on policy for damages to automobile caused by accidental collision with bank of ditch at roadside, that driver was careless or negligent, or excited and confused, was no defense.
    Thomson, P. J., dissenting.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.

      Oertiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 28, 1925.
    Rehearing denied November 10, 1925.

      Jay Fred Reeve, for appellant.
    Earl J. Walker, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Walter E. Heller & Company, Inc., for the use of Edward T. Kennedy, took out a policy of insurance executed by the defendant, International Indemnity Company, which insured the plaintiff for damages to a Lincoln sedan automobile caused “by being in accidental collision during the period insured with any other automobile, vehicle or object.” On February 4, 1922, the automobile was damaged, so that it cost $2,996.32 to have it repaired. Claiming that the damages were caused by accidental collision, the plaintiff brought this suit.

Two trials have been had. In the first, which was by the court with a jury, there was a verdict and judgment for the defendant. In the second, which followed the granting of a motion for a new trial, and which was tried before the court without a jury, and upon the evidence as contained in a stenographic report of the testimony taken at the first trial, there was a judgment for $2,996.32 in favor of the plaintiff. This appeal is therefrom.

The chief question in the case pertains to the meaning of the words, collision with an object, as applied to the facts in the case.

The testimony of Kennedy is, in substance, as follows: He was a practicing physician, and on the morning in question, after making a professional call, he started to drive back, having one Officer Kuhn as a passenger, southeast on Lincoln avenue. The day was clear. The accident occurred on that avenue, several blocks south of Touhy avenue, which crosses Lincoln avenue at right angles. The locus in quo was open country. Lincoln avenue was either concrete or asphalt, and at the place in question the paved part was from 18 to 20 feet wide, and on each side of it there was a shoulder about 4 feet wide, which sloped slightly down to a ditch 4 or 5 feet deep. As he drove south, he saw an automobile, also going south, about a quarter of a mile ahead of him, and when he had driven within two or three hundred feet of it, behind, he sounded his horn. The road was straight and the automobile ahead was in the middle of the road. When he sounded the horn, the automobile ahead of him turned to the right, and he, Kennedy, undertook to drive past, but just as he got up with the other automobile, on its left-hand side, it swerved over east into his path, and he had to drive out east to avoid a collision. In doing so, he drove over on the shoulder of the road about 2 feet. At the time, he was going about 28 to 30 miles an hour. He drove along the shoulder about 50 or 60 feet and then endeavored to get back on the road, and, as he pulled over, the front wheels of his automobile struck some bricks that were lying on the road, which caused his automobile to swerve to the right. He was then going about 30 miles an hour. He did all he could to right it, but he was unable to straighten it out, and after striking the brick, and going about 50 or 60 feet, the automobile went into the ditch on the west side of the road and the front part struck the embankment on the west side of the ditch and the automobile immediately turned over. The ditch at that point was from 4 to 6 feet deep. As the result of the accident, the plaintiff was thrown under the car and seriously injured. On cross-examination he testified that at the time he tried to right his automobile he may have put his foot on the accelerator; also, that there were at least 5 or 6 bricks on the road. There was offered in evidence a written statement which he had made shortly after the accident. In that he stated that “as there were a number of loose bricks on the pavement, I may have struck one of them.” The passenger, Officer Kuhn, who was riding in the front seat with Kennedy, substantially corroborates the latter, save that Kuhn testified that when the automobile in front swerved to the left the right front fender of Kennedy’s automobile struck the left front fender of the other automobile; that he saw it and heard it; that it threw the doctor off the road. As to the bricks, he testified that there were 5 or 6 of them scattered on the roadway, and that they were about 3 or 4 inches thick and about 10 inches long. He further testified that the front wheels of the automobile were “wiggling” after the automobile collided with the bricks; that there were three collisions, one with the other car and two with the bricks; after it struck the bricks, it turned to the right-hand side and went into the ditch and struck the wall of the ditch.

According to the testimony of an employee of the defendant, who measured the ditch, it was 5 feet deep; and the near side had a slope of about 40 degrees, and the other side, much less.

One Suckon, who visited the place immediately after the accident, testified that he saw no bricks in the roadway. One Schnur, testified that he was driving a bus on the road in question when a yellow cab passed him going about 25 or 30 miles an hour, and then the plaintiff in his automobile passed him going about 35 miles an hour; that when they were about 500 feet ahead of him he saw the plaintiff’s automobile swing to the left side, then to the right, and then turn over; that he did not see them collide; that the plaintiff’s automobile skidded towards the ditch on its side. On cross-examination he testified that when the plaintiff’s automobile went back on to the concrete, and its course was straightened out, it turned over and the rear end skidded around into the ditch. He further testified that it seemed to be tipping over as soon as it passed the yellow cab.

According to the lexicographers the word “collision” comes from the Latin word “collisio,” and means to clash together. “The act of striking violently together, the state of being dashed together or struck violently.” Encyclopaedic Dictionary.

In our judgment, the evidence justifies the conclusion, as a matter of fact, that the automobile was damaged by violently striking or colliding with the west side of the ditch which was, according to Parrish, who measured it, 12 feet off the roadway. The evidence of Kennedy and Kuhn both support that conclusion. It is true that Schnur, who, however, was a long distance away at the time of the accident, suggests that the automobile began skidding and tipping over before it went into the ditch, but that by no means overcomes the evidence of Kennedy and Kuhn. Also, it makes no difference whether the two automobiles touched each other or whether the bricks interfered with the control of the automobile; inasmuch as it was damaged, as a preponderance of the evidence shows, by colliding with the side or bottom of the ditch, that was such a collision as was covered by the words of the policy. The sides and bottom of the ditch were objects, as much so as an automobile or any other physical thing. T. C. Power Motor Car Co. v. United States Fire Ins. Co., 69 Mont, 563, 223 Pac. 112.

The case of Garford Motor Truck Co. v. Miller’s Nat. Ins. Co., 230 Ill. App. 622, involved a very different set of facts. There it was a question whether there was a collision within the meaning of the word as used in the policy, where a front wheel of a truck struck the forward side of a ten-inch hole in the roadway; and this court held that the meaning of the word, as used, was too limited to cover such an impact. But it does not follow that the limitation of the connotation of the word in that case means that even where the collision takes place off the roadway, as here, the words of the policy are inapplicable. The Garford case means that continuity of contact of the wheels of a motor vehicle with the roadway cannot in and of itself, constitute a collision, within the meaning of the usual words of accident policies.

The instant case is somewhat similar to Bromberg v. Fort Dearborn Casualty Underwriters, 231 Ill. App. 323. In that case, where the driver in turning around on a slippery pavement, backed the rear wheels over the edge of the road, so that the automobile finally struck a water main off the roadway and was thrown into a deep hole, the court held that it was damaged as the result of a collision with a stationary object. In the instant case, as we have said, the damage was caused by the plaintiff’s automobile striking the side or bottom of the ditch, which was, of course, not part of the roadbed.

It must be observed that the words of the policy place no limitation on the cause of the accidental collision. The defendant promises to pay for the damages no matter what occurred, by way of cause, prior to the actual impact. That the driver was careless or negligent or excited and confused, as the plaintiff may have been, is no defense. Fidelity & Casualty Co. of New York v. Morrison, 129 Ill. App. 360; the Bromberg case, supra.

At the close of the evidence, on motion of the defendant, the trial judge found that the damages, “were not proximately caused by its being in accidental collision at the time and place in question with another vehicle or with any brick or bricks on the roadway, or with the embankment on the far side of the ditch on the west side of Lincoln roadway, or with any object other than the highway itself. The damages were proximately caused by its being accidentally tipped over on or near the highway without having. collided with any vehicle or object but the highway itself.”

It will be seen upon analysis that that finding means that the damage was not caused by accidental collision with the other automobile, or with bricks on the roadway, or with the ditch embankment or with any other object than the highway. As may be inferred from what we have already said, with that we do not agree. As the evidence before the trial judge, however, was all given by deposition, we are in just as good a position as he was in determining the facts.

Although, therefore, we do not agree with the reasoning of the trial judge, we agree with the final judgment.

The judgment will be affirmed.

Affirmed.

O’Connor, J., concurs.

Mr. Presiding Justice Thomson

dissenting: I am unable to concur in the foregoing decision of this case. All the evidence was submitted first to a jury and later, after a new trial had been awarded, to a judge without a jury, that judge not having been the trial judge in the first trial. When the issues were submitted to the jury, the verdict was in favor of the defendant and the jury returned four special findings of fact, to the effect that the damages to the car in question had not been caused by its coming into accidental collision with any other vehicle, with any brick or bricks on the roadway or with the embankment on the far side of the ditch on the right side of the roadway, but that they had been caused by the car “being accidentally tipped over on or near the road without having collided with any vehicle or object.” When the issues were later submitted to the court without a jury, the evidence on this occasion being read to the court from the transcript of the evidence taken in the first trial, the court took the same view of the facts which the jury had taken at the former hearing, as indicated by the finding of fact shown in the record. The trial court in this second hearing was apparently of the opinion, as a matter of law, that although the facts were as so found, nevertheless, the accident came within the provisions ■ of the policy, which the insurance company had issued, in which the company insured the plaintiff against damages to the car in question, caused “by being in accidental collision * * * with any other automobile, vehicle or object.” In my opinion, this court is riot in a position to say that the finding made by the trial court, on the facts, is against the manifest weight of the evidence. I am further of the opinion that on such a state of facts, the trial court erred in holding the defendant was liable under the terms of its policy.

If the finding of fact that the trial court made was justified by the evidence, and, in my opinion, it was, the defendant was not liable. Garford Motor Truck Co. v. Miller’s Nat. Ins. Co., 230 Ill. App. 622. The facts involved in the case cited presented a situation which is analogous to the one presented in the case at bar. Where the driver of a car, in passing around another car, gets off the hard roadway, and either strikes a rut in the softer ground outside of the roadway or his wheels sink into the softer ground and he thus loses control of his car, and, before he regains it, he overturns and skids into the ditch along the roadside, I am of the opinion that a policy which has insured him against damage to his car caused “by being in accidental collision * * * with any other automobile, vehicle or object,” has no application, for it may not reasonably be said that his car has been in such a collision.