author: Mr. Justice Jett

text:
    Rodger Miller, Appellee, v. Kenneth Burch, Appellant.
    Gen. No. 8,009.

      Opinion filed September 24, 1929.
    Welsh & Welsh, for appellant.
    Hall & Dusher, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

On March 26,1926, about one o ’clock in the morning, appellant, hereinafter called defendant, driving north on Court Street, in the City of Rockford, brought his automobile to a stop on the west, or left-hand side of the center of the street, facing north, at a point between 25 and 40 feet south of the south line of Jefferson Street, which runs east and west, and with his left wheels 10 or 12 feet east of the west curb, the pavement on Court Street being about 40 feet wide. Another car, facing south, was between his car and the curb. Whether any of his lights were on is a disputed question.

While he was in that position, appellee Miller, hereinafter called plaintiff, in a Ford sedan, driving south, on the west side of the street, at a speed of 15 to 25 miles per hour, collided with defendant’s car. The lights on plaintiff’s car were on dim, and, according to his own testimony, did not illuminate the road more than about 3 feet in front of the car and were of no assistance to him in distinguishing objects more than that distance.

The impact was between the right front wheels or corners of the two cars and plaintiff’s car was thrown onto its left side and damaged.

Plaintiff brought suit in a justice court and on appeal the plaintiff recovered a judgment in the circuit court of Winnebago county for $164.68 damages to his car.

Defendant brings the case here for review. His contentions are: First. That plaintiff was guilty of contributory negligence as a matter of law, and that the trial court should have directed a verdict in his favor. Second. The court erred in giving four designated instructions asked for by the plaintiff. Third. The court erred in refusing the first instruction asked for by the defendant.

The first question is: Should the Court have di- . rected a verdict for the defendant.”

In contested suits to recover damages resulting from negligence, four questions naturally arise:

First. Did the conduct of the defendant amount to negligence ?

Second. If yes, did the thing which caused the injury result from such negligence as a natural and usual consequence?

Third. Was plaintiff in the exercise of due care; that is, did his conduct amount to negligence ?

Fourth. If plaintiff was negligent, did his negligence cause, or proximately assist in causing, the thing from which the injury resulted?

It is conceded the defendant was negligent in parking his car where he did, and it must be conceded that his negligence was aggravated if, as claimed by the plaintiff, he stood there without displaying any lights.

If we understand the defendant’s position, it is that he is not liable, regardless of his own negligence, not because it is not actionable negligence, but because the plaintiff was guilty of negligence, and his negligence proximately contributed to the collision which caused his damage.

The defendant stresses the fact that plaintiff was running with lights that did not aid him in distinguishing objects more than 3 feet ahead of the car. He also asserts that the Motor Vehicle Law required plaintiff to have much stronger lights. From these facts he concludes that plaintiff was guilty of negligence as a matter of law, and avers that such negligence contributed proximately to the collision from which his damages resulted.

It is quite true that plaintiff’s lights, as he used them, would only serve as a warning to persons fronting him to get out of his way, but could be of no service to him in seeing persons or objects in front of him in time to avoid striking them. So far as being any assistance to plaintiff in that respect, they might as well have been turned entirely off. They were not out, however, for defendant says: “He (meaning plaintiff) had his headlights on. I noticed him at the intersection.”

This brings us to a consideration of whether defendant’s conclusion that plaintiff was guilty of negligence as a matter of law is a correct one, basing his conclusion, as he does, on the single fact that plaintiff was running with his lights on dim.

Whatever the rule in other States may be, the rule supported by the weight of authority in Illinois is that the violation of an ordinance or a statute by acts, either of commission or omission, is only prima facie evidence of negligence. Culver v. Harris, 211 Ill. App. 474; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Chicago & J. E. Ry. Co. v. Freeman, 125 Ill. App. 318; Grayhek v. Stern, 154 Ill. App. 385.

We are aware that in a number of cases in Illinois, and among them the case of Johnson v. Gustafson, 233 Ill. App. 216, cited and relied on by defendant, the statement will be found that .the violation of a statute or ordinance is negligence as a matter of law.

In most of the cases examined, the decision was not based on the statement that plaintiff was guilty of negligence as a matter of law, nor was it necessary to the decision.

In the Gustafson case, supra, the third syllabus reads: “One who was driving a horse and cutter without a lighted lamp thereon as required by the village ordinance was negligent as matter of law.”

The statement in the syllabus is not accurate.

The language of the court is: “Violation of an ordinance or of a statute is usually evidence of negligence, and in this case both parties were negligent as a matter of fact and as a matter of law.”

The court in the case of Moyer v. Vaughan’s Feed Store, 242 Ill. App. 308, on page 312, says: “Of course there may be situations where it may be negligence as a matter of law, for one to drive an automobile along a public highway in the nighttime at such speed that it cannot be stopped within the distance that objects can be seen ahead of it. The test in such cases is, would all reasonable minds reach the conclusion that the conduct of the driver of the automobile was violative of rational standards of conduct applicable to persons in similar situations,” citing Kelly v. Chicago City Ry. Co., 283 Ill. 640, in which case, on page 644, •the court says: “It is also true that the question as to whether or not a person, as a matter of law, is guilty of such negligence in a given case as will bar him of his right of action, depends upon the particular facts and circumstances of each case.”

The expressions running through the cases, when the court is considering the effect of the violation of a statute by a plaintiff in a suit for damages alleged to be caused by negligence of defendant, are that such violation is “Prima facie evidence of negligence” or that such violation is “usually evidence of negligence.”

The conclusion follows that the violation of a statute or ordinance is only one of the facts and circumstances to be considered in order to determine whether the plaintiff is guilty of negligence. Other things that might be considered in this case, along with the violation of the statute, are: (1) whether plaintiff should have apprehended, the danger.

“If a person has no reason to suspect danger, he is not required to look for it. ’ ’ Mellish v. Thorne, 150 Ill. App. 237.

“It is a sound rule of law that it is-not contributory negligence not to look out for danger when there is no reason to apprehend any,” . . . the rule being that “every one has a right to presume that others owing a special duty to guard against danger will perform that duty. ”... It may be that if there was evidence tending to show appellee (plaintiff) had reason to apprehend such danger, the question of fact might properly be submitted to a jury.”

The above quotation, from opinion in Chicago Tel. Co. v. Commercial Union Assur. Co., Ltd., 131 Ill. App. 248-255-256.

In this connection the language of the court in the Moyer case, 242 Ill. App., at pages 312-313, is signif- • icant. ‘ ‘ The night was dark and misty. The plaintiff was driving along a country road where standing vehicles were not to be expected. There is evidence to the effect that there was no rear light on the truck; that the color of the truck and its load blended with the coloring of the surface of the road. These, and many other circumstances which might be alluded to, show that all reasonable minds would not reach the conclusion that the driver of plaintiff’s automobile was acting as no rational person would act under like circumstances, and therefore, the question to be determined was one of fact and not law. ’ ’

Applying the above to the instant case, plaintiff was driving along a street at an hour and at a place where standing vehicles were not to be expected, on the path he was supposed to be, and in which he was driving. There is evidence that there were no lights on defendant’s car. There was a light at the intersection, but the street was dark near defendant’s car. These, and other circumstances heretofore mentioned, and that might be mentioned, persuade us that all reasonable minds would not agree that the conduct of plaintiff constituted negligence. So the question of negligence should be treated as one of fact for the jury.

(2) Whether the place where plaintiff was driving, and had a right to drive, was a safe place to drive with such dim lights, but for the negligence of the defendant in being where he had no right to be.

(3) In short, whether under all the conditions and circumstances surrounding plaintiff as he proceeded south on Court Street, his conduct was “So violative of all rational standards of conduct applicable to persons in a like situation” that all reasonable minds would conclude that he was negligent. If it was not, then, although he may have been negligent as a matter of fact, he could not properly be said to be negligent as a matter of law. Hence the jury was properly permitted to pass on that question of fact, and if the jury had a basis in the evidence for finding that the conduct of the plaintiff did not constitute negligence then, in such case, no one would contend there could be such a thing as negligent contribution to the cause of the injury, negligence of plaintiff having been eliminated.

On the other hand, should the jury find the conduct of plaintiff did amount to negligence, it would still have to find whether that negligence proximately contributed tosthe collision which caused the damages.

In Johnson v. Gustafson, supra; after finding plaintiff was guilty of negligence as a matter of fact and as a matter of law, the court at page 224 says: “Whether his negligence proximately contributed to the accident, was a question of fact for the jury,” supporting that statement by citing Lerette v. Director General of Railroads, 306 Ill. 348, and Heiting v. Chicago, R. I. & P. Ry. Co., 252 Ill. 466, and quoting from the Lerette case, page 352: “Violation of a law .at the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact that plaintiff was violating the law at the time he was injured ought not to bar his right to recover any more than the fact that the defendant was violating a law at the time plaintiff was injured, ought to conclusively establish plaintiff’s right to recover.”

In the Eeiting case the defendant had failed to fence its track as required by ordinance. A boy went upon its property and was injured by a passing train. It was held that “whether the failure to build the fence was the proximate cause of the injury was a question of fact for the jury.”

The defendant says: “Where the facts are undisputed ’and all reasonable minds would reach the same conclusion from them, the question of what is the proximate cause of the injury is one of law for the court to determine.” He cites a number of cases in support thereof.

Under the facts in each case cited, with one exception, it was held the question of proximate cause was for the jury. In the other case it is quite evident the rule was not applied.

The following cases furnish further support for the position that the violation of a statute or ordinance will not defeat a recovery unless the violation, considered in connection with all the other facts and circumstances surrounding the case, establishes, first, that plaintiff was negligent, and second, that such negligence proximately contributed to the injury. They also furnish illustrations of when each of these questions are for the jury. We refer to the cases of: Star Brewery Co. v. Hauck, 222 Ill. 348; Kenyon v. Chicago City Ry. Co., 235 Ill. 406; Graham v. Hagmann, 270 Ill. 252; Jeneary v. Chicago & I. Traction Co., 306 Ill. 392; Moyer v. Shaw Livery Co., 205 Ill. App. 273; Foglesong v. Peoria R. T. Co., 203 Ill. App. 546; Marx v. Chicago Daily News Co., 194 Ill. App. 322; Johnson v. Gustafson, 233 Ill. App. 216.

In the case at bar we hold it was proper for the court to submit to the jury, as it did, the question of plaintiff’s negligence, as well as the question of proximate cause.

The next contention of the defendant that the court erred in giving the third, fourth, fifth, and sixth instructions offered by plaintiff, we hold to be without merit.

These instructions state correct principles of law and the court did not err in giving them. The last contention argued by defendant is that the court erred in refusing his first instruction.

This instruction consists of three parts, each part . containing a separate proposition, as follows

“(1) The statute of Illinois, requiring motor vehicles to be equipped with headlights, visible at least 200 feet in the direction in which said vehicle is proceeding, is intended to provide for a light for the guidance and benefit of the person driving the automobile, as well as for the protection of others who use the highway.”

That proposition finds support in the Gustafson case, 233 Ill. App. 216. There the court, after reviewing a number of cases from other States, reaches this conclusion :

“In the instant case we are of the opinion that the statute requiring white lights visible at least 200 feet in the direction in which an automobile is proceeding is for the benefit not only of those who are using the highway ahead of the car, but, also, to enable those in driving the car to avoid accidents.”

The first part of the instruction is almost án exact copy of the court’s language in that case. It will be noted that no prior Illinois case is cited as supporting the opinion expressed, and a careful search discloses but one subsequent case, Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99, in which it is held that: “The provisions of the statute are for the benefit not only of those who are using the highway ahead of the car, but also to enable those in driving the car to avoid accidents,” citing Johnson v. Gustafson, 233 Ill. App. 216, and we think it can be safely said that no Illinois case has gone any further in construing this statute.

(2) The second part of the instruction is: “If you believe from the evidence that plaintiff’s car was being driven by the plaintiff with the dimmer lights on, so that he could see less than two hundred feet in the direction in which he was driving,.then he is guilty of negligence.”

We do not think our courts have, in any case, construed our statute as meaning the lights shall so illuminate the road that the driver “could see at least two hundred feet in the direction in which he was driving,” nor do we think they have ever held that the failure to have such lights or to so use them, if he has them, of itself alone, constitutes negligence, so that the proof of that fact alone is sufficient to establish negligence.

The statute requires a driver to dim or extinguish his lights when within not less than 250 feet of a car approaching the opposite direction. We think the instruction was wrong in assuming negligence from the facts stated.

(3) The third part of the instruction is: “And if you further believe from the evidence that this act of negligence by the plaintiff contributed in any way to cause his damage, then' he is barred from recovery in this case. ’ ’

This is wrong. Negligence which contributes to cause the damage complained of must proximately contribute in order to bar recovery. The instruction was properly refused.

For the foregoing reasons we do not feel justified in disturbing the judgment of the circuit court, and it is accordingly affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Douglas Pattison and Ray T. Luney, Trading as Pattison & Luney, Defendants in Error, v. Chicago & Northwestern Railway Company, Plaintiff in Error.
    Gen. No. 8,033.

      Opinion filed September 24, 1929.
    R. R. Tiffany, Nelson J. Wilcox and Nelson Trottman, for plaintiff in error.
    Douglas Pattison and Ray T. Luney, for defendants in error.
   Mr. Justice Jett

delivered the opinion of the court.

This is a suit brought by Douglas Pattison and Ray T. Luney, partners doing business under the firm name and style of Pattison & Luney, defendants in error, and will be hereinafter referred to as plaintiffs, against Chicago & Northwestern Railway Company, plaintiff in error, and hereinafter called defendant, to recover for legal services rendered by said plaintiffs in a case pending in the circuit court of Stephenson county, in which the defendant had instituted suit against H. A. Hillmer & Company, for undercharges on a certain shipment of coal.

This cause was heard by the court without a jury with a finding and judgment in favor of the plaintiffs and against defendant in the sum of $362. The defendant prosecutes this writ of error.

The declaration consists of two counts. The first is for money due plaintiffs for work, care, diligence, and attendance of the plaintiffs, by them performed and bestowed as attorneys and solicitors of the. defendant at its request and for fees due them in respect thereto, and for materials and necessary things by them provided in and about said work. The second count is the usual form of the common counts.

To the declaration the defendant pleaded the general issue and gave notice of special matters relied on for a defense.

It appears that on February 24,1919, while the lines of the defendant’s railway company were operated by the Federal Railway Administration, defendant’s general solicitor addressed a letter to Douglas Pattison, in which he offered him an appointment as local attorney to represent the Chicago & Northwestern Railway Company in Stephenson county, during the period of government control. In this letter, after a brief outline of the nature of the services required, the following appears: “As to compensation, we would expect your charges to be reasonable and subject to the approval of the General Solicitor. It is our uniform practice to require bills to be made out at least quarterly so that unsettled charges "of long standing will not accrue. ’ ’

Pattison replied on" February 25, 1919, accepting the appointment, and in his reply, among other things said:

“I will be glad to act for you out here, and as regards compensation, your statement that you would expect my charges to be reasonable and subject to approval of the General Solicitor is absolutely satisfactory to me.”

The suit brought by the Chicago & Northwestern Railway Company, the defendant herein, against H. A. Hillmer & Company, had been pending and at issue since November, 1917, and up to the time of the making of the contract with Pattison, had been handled by other attorneys; that after the making of said contract with Pattison, some correspondence was had between Pattison and the general solicitor of the defendant Railway Company relative to said Hillmer case; that the amount involved in said Hillmer suit, exclusive of interest and cost, was $82.91, and that it was brought to collect an undercharge for transportation; that on or about March 1, 1920, the United States Railroad Administration ceased to operate defendant’s railway and that defendant continued Pattison as local attorney at Freeport and as such, in charge of said Hillmer case on the terms and conditions provided in the contract of employment; that thereafter, under repeated and many urgings from defendant, Pattison did, on December 23, 1924, bring the said Hillmer case on for trial before the court without a jury on a stipulation of facts, and that thereafter a judgment was rendered in favor of Chicago & Northwestern Bailway Company, who was the plaintiff in that cause, and the defendant in this proceeding for the said principal sum, together with interest and costs aggregating $97.98.

The bill submitted by Pattison & Luney, plaintiffs, against the Chicago, & Northwestern Bailway Company, defendant, for the services rendered in connection therewith, was itemized and totaled the sum of $362.

The officers of the defendants stated to the plaintiffs that $24.50, was a reasonable and usual compensation for such services but that they were willing to pay $50. Plaintiffs refused such tender,.and this suit followed.

The question herein involved is, as to whether that part of the provision of the contract with reference to the compensation to be paid to the plaintiffs shall be subject to the approval of the general solicitor is to be given effect.

Plaintiffs insist the question for determination is, as to whether or not the compensation charged by them, and for which they recovered judgment, is the usual reasonable and customary fee charged and paid in the county of Stephenson for like services.

The record is quite voluminous and is largely made up of testimony of Pattison and Luney tending to show that they performed certain acts in connection of the Hillmer suit; that the acts performed took certain amounts of time for which charges were made and for which the reasonable charge would be at the rate of about $5 per hour.

Under the contract the charges were to be “reasonable and subject to the approval of the General Solicitor.” Plaintiffs in effect insist that if the charges are in accordance with the usual per diem rate in Stephenson county, which is stated by various witnesses to be approximately $5 per hour, then such charges are reasonable whether or not the work was necessary; and that if reasonable when tested by this criterion, the general solicitor had no power under the contract to reduce them.

The plain meaning of the language in the contract is, that the charge must be reasonable, and, if reasonable, must be subject to the approval of the general solicitor. If the general solicitor could not reduce the charges under the contract to a point which met with his approval, then these words were superfluous, and regardless of the contract, the defendant would, in every case, be liable upon a quantum, meruit for a reasonable value of the services performed and the very purpose of the contract would be defeated. If the contention of the plaintiffs is correct, there would be no object in having these words in the contract.

The correspondence offered in evidence not only discloses that the plaintiffs approved the provision in the contract, providing that the charges should be reasonable and be subject to the approval of the general solicitor at the time of their employment, but it also shows that after the bill had been submitted they acquiesced in said' provision.

It is said by the plaintiffs: “If the contention of defendant were the correct construction to place upon this contract, then the provision that the charges shall be reasonable could be rendered of no force by the arbitrary action of the General Solicitor refusing to approve a reasonable charge.”

Conceding that the general solicitor did not have the power to exercise in bad faith this right to revise plaintiffs’ bills, no such question is presented by the record herein. The record fails to disclose that any question of bad faith is raised by the plaintiffs, or suggested by them, either in the pleading or in- the testimony.

Howe v. Kenyon, 4 Wash. 677, 30 Pac. 1058, was a case in which an attorney sued on a quantum meruit for the value of services alleged to be of the reasonable value of $700. The attorney admitted the payment of $100, and sought to recover $600; the defendant admitted the services had been performed, but relied upon a contract under which the attorney agreed to render professional services, “for a reasonable attorney’s fee, such as Mr. Kenyon is able to pay and thinks reasonable.” The defendant said that $300 was reasonable compensation and that after crediting $100 he had offered $200, which the attorney refused to accept. On the trial of the cause, the court charged the jury that under the contract the plaintiff had a right to receive a reasonable attorney’s fee, and that the contract did not make the client the sole arbiter of what he should pay, unless it was a reasonable fee. The Supreme Court of the State of Washington held this charge to be error and in its opinion the court among other things said: “We think the Court was wrong in this charge. This was a peculiar sort of contract, by which the respondent bound himself to do certain work, and accept therefor the compensation which the appellant should deem just, he acting in good faith and according to his ability. It was a contract which he had the power to make. He was perfectly free to refuse to perform any services for the appellant, excepting upon payment of a reasonable fee, and, having made this contract, he must abide by it, unless he can show that the appellant, through some fraudulent or other bad motive, has arbitrarily refused to name or pay what is clearly a reasonable fee. Counsel and client are liable to differ very materially in their estimation of what services of this kind are worth. Either has the right to maintain himself independent of the other, or he may, if he sees fit, contract to put himself, as he would consider, somewhat within the power of the other. The only attempt to avoid the effect of the appellant’s decision in this case was to prove, by other attorneys, that their judgment was different as to the proper amount of compensation from that of the appellant. The appellant’s ability was not touched upon. On the other hand, we think the appellant has shown his good faith in the matter by at all times offering to pay what is certainly not, even under the testimony of the respondent’s witnesses, an insignificant sum. The judgment should therefore be reduced to $200, and affirmed, at respondent’s costs.”

In Tennant v. Fawcett, 94 Tex. 111, 58 S. W. 824, it appears that an attorney sued to recover the reasonable value of certain services, and the defendant insisted that the services for which he sought to recover were rendered under a special contract in which it was agreed that the client should be liable only for such sum as he, himself, should fix for compensation for the services and that he had fixed the amount of this compensation and paid the same. On the trial of the cause the court instructed the jury that they should allow the plaintiffs such sum or sums as the services were reasonably worth.

An appeal was prosecuted to the Supreme Court of the State of Texas, and in its decision the court said: “Should one agree to render a service for another gratuitously, it would seem that he could not recover for the service, for the reason that there is no promise, express or implied, to pay for it. The law would not impute a promise to pay where there was a distinct understanding that nothing should be paid. So one might be desirous of having a service performed, but be unwilling, under the circumstances to pay its reasonable value, or to stipulate in advance for the payment of any definite sum, and might agree with another not to pay either a stipulated sum or the reasonable value of the work, but to pay merely such sum as he might see proper to pay. It would be unjust in such a case to hold him bound absolutely to pay the reasonable value of the services. We think the authorities hold that, in such a case, should he fix the compensation in good faith, no more can be recovered than the amount so fixed. In Butler v. Mill Co., 28 Minn. 205, 9 N. W. 697, the court say: ‘We think the judgment as rendered is correct. The contract was clear and unambiguous. The stipulation that the amount of the compensation should depend upon the judgment and decision of the employer may have been an undesirable one for the plaintiff to consent to, but he nevertheless chose to accept the employment on those terms. The contract was an entirety, and of obligation in all its parts, and the law cannot, after it has been executed, relieve the plaintiff from the consequences of one of its stipulations which proves to be disadvantageous to him. That would, in effect, be making a new contract for the parties. -It was the duty of the defendant to determine and fix the amount of the compensation honestly and in good faiths and if did so fix it, the obligation of the contract was fulfilled, so far as that matter is concerned.’ So, in Lee’s Appeal, 52 Conn. 363, 2 Atl. 758, the principle is thus announced: ‘If A renders service for B under the agreement which leaves to B the right to determine the amount of compensation A shall receive after the service shall have been rendered, and how it shall be paid, and B, acting in good faith, so determines the compensation and mode of payment, A is as much bound by the determination as he would be if there had been an express agreement between the parties that he should receive that compensation, and in that mode, before the service was rendered; and if payment should be in fact made to that amount and in that mode A’s claim would be extinguished.’ ”

The judgment was reversed and the cause remanded. Other cases are cited by the defendant in support of its contention, but owing to the conclusion we have reached we will not cite further authority nor quote from other opinions bearing upon the contention of the defendant.

The plaintiffs insisted that the rule contended for by the defendant is contrary to the doctrine as announced in Van, Arman v. Byington, 38 Ill. 443.

In the Van Arman case it appears that the plaintiffs had employed the defendant as an attorney 'at law to defend a suit in the final settlement of which Van Arman, the defendant, received some $27,000 of the plaintiffs, all of which he paid over to them except the sum of $5,000, which he retained for his services. The plaintiffs brought suit to recover so much of the $5,000 thus retained by the defendant as might remain after deducting therefrom what his services were reasonably worth. The defendant insisted, as one of his grounds of defense, that the plaintiffs were estopped from alleging against the correctness of his charge for services because he was employed upon an agreement that he was to receive whatever amount he might see proper to charge and that his determination of what that amount should be was conclusive, unless he acted unfairly or oppressively.

It will be observed that they employed the attorney to perform services and they promised to pay him whatever he might see proper to charge. The court held that under such circumstances the attorney was bound to make his charge in good faith and that he could recover only the reasonable value of his services; this was on the theory that an attorney has no right under such circumstances to take advantage of his client by making an arbitrary charge considerably in excess of the reasonable value of his services. It will be observed that the Van Arman case was one where the compensation was fixed by the attorney and the decision of the cause turned upon the form of the action. The suit was in assumpsit and the court in its opinion pointed out that the action could only lie on an express or implied promise. The court said there was no pretense that there was an express promise to pay any definite sum. The question was then, what was the implied agreement of the parties! Under the agreement in that case there was no implied promise that the client should pay more than a reasonable sum. The instant case is one in assumpsit. There was no express agreement to pay the sum demanded by plaintiffs. The contract and the construction given to it by the parties as shown in the correspondence negatives any suggestion that there was implied in the contract any agreement on the part of the defendant to pay more than the amount fixed by the general solicitor as being reasonable.

We are not prepared to say that there is anything in the opinion of the Voai Arman case or other authorities relied upon by plaintiffs that is contrary to the contention of the defendants in this cause.

We are not unmindful of the fact that it is insisted by the plaintiffs that notwithstanding the terms of the contract, there is nothing to show that the general solicitor ever acted on the bill in question. While there may be no direct proof in the evidence, the record discloses that the plaintiffs were corresponding with Nelson J. Wilcox, who was then in the general solicitor’s office and who was addressed by the plaintiffs as assistant general solicitor.

In view of the state of the record we are of the opinion that this point is not well taken by the plaintiffs. We are also of the opinion that it was the duty of the plaintiffs to report from time to time as to the work it was doing for the defendant and the compensation it was claiming.

It appears that a bill for $362 for the collection of a claim of $82.91 would, on its face, seem to be out of all proportion to the amount involved. Among the items presented by the plaintiffs in their statement of their account against the defendant is one of $40 for investigating the law; one of $65 for preparation for trial, and $25 for preparing brief of the authorities. Under the law there was an undoubted right of the railroad to recover and there was certainly no necessity, for a very extensive briefing of the case. There is no claim that the law in reference to the railway company recovering for an undercharge for freight was at all in an uncertain state.

The amount involved in the case was small. The judgment recovered, including interest and cost, was $97.98. There was nothing about this undercharge case that in any way made it different from any other ordinary undercharge case. A bill was rendered; the general solicitor fixed the compensation at $50; the defendant was entitled to have this done by the general solicitor by the express terms of its contract. The contract was one which the parties had the power to make. No question of bad faith in fixing the value of the services is raised.

We conclude, therefore, that the judgment of the circuit court of Stephenson county should be reversed and the cause remanded unless the plaintiffs shall, within 30 days after the filing of this opinion, enter a remittitur reducing the amount of the judgment to the sum of $50 and cost.

Reversed and remanded, unless a remittitur is entered, reducing the judgment to $50 and cost.


text:
    Leonie Van Tieghem et al. (Peoples Savings Bank and Trust Company), Appellant, v. John Sushenka et al. (Alfanas Orloff), Appellee.
    Gen. No. 8,058.
    Opinion filed September 24, 1929.
    J. J. Neiger, for appellant.

      Chalmers K. Seymour, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an appeal prosecuted by Peoples Savings Bank and Trust Company, a corporation, appellant, from an order of the circuit court of Bock Island county, in the case of Leonie Van Tieghem et al. v. John Sushenka et al., requiring complainants to pay to James F. Murphy, master in chancery of Bock Island county, his costs and charges accrued in said above entitled cause to the amount of $580.60, within 20 days from the date on which the order was entered, and on failure so to do that the bill of complainants be dismissed.

The record discloses that prior1 to the time of the entering of the order directing the complainants to pay to the master in chancery his costs and charges, Alfanas Orloff, appellee, filed a motion in said cause, setting forth the different proceedings that had been had therein, and that the master in chancery had taken the evidence, and the testimony taken by the complainants amounted to the sum of $344.80, and the testimony taken by appellee amounted to $235.80, making a total of $580.60; that the master in chancery had made a finding in favor of appellee on December 17,1928; that objections to said report had been filed and overruled on December 29, 1928, and that said master was withholding his report until his fees and charges should be paid; that said case was pending and in which the motion was entered, was “in the nature of a creditor’s bill and is a lien on the property of appellee which prevents its sale or transfer to his prejudice and final loss, and that a speedy hearing should be granted” to appellee as a matter of right; praying that upon due notice to complainants, an order might be entered requiring them to procure the filing of the report of the master iii said court, and to proceed with'the trial of said cause within a reasonable time to be fixed by the court, “and that upon failure to comply therewith, the suit be dismissed for want of prosecution.”

To said motion, complainants filed an answer, setting up among other things that: “It is not their duty, under the law, to advance or prepay the fees of the said master before the filing of the report herein; that it is not in their power to file the report, because the said master is withholding the same until his fees are paid; that a just and equitable disposition of the question of costs would be that each party pay his own costs respectively incurred before the master in the hearing, and taking of the testimony before such master.”

A hearing was had on said motion. On the hearing of the motion the only evidence heard by the court was with reference to the amount of the master’s fees, and bearing upon the amount of the work in connection with the taking of the testimony. The master testified that he had his report ready to file but was withholding it until his fees and charges had been paid. Alfanas Orloff, appellee, testified in his own behalf that he did not own any real estate, except the two pieces of property involved in said cause; that he had no money in the bank; that his household property is worth about $75; that he had no other property, and was sick all winter and had been unable to work.

The record shows the evidence on the part of appellee was heard subject to objection. Complainants entered a motion for an order requiring the master to file his report. Said motion was overruled, thereupon counsel for complainants stated: “I would like, on behalf of the complainants, to move that the master file his report in this court, each party paying the costs incurred by each of them respectively before the master.” Counsel further stated: “That complainants are prepared, ready and willing to pay. their part of the costs, or give a bond for security for the payment of all costs that may be eventually charged against them. ’ ’ This motion was overruled.

The question for our determination is, as to whether or not the court had jurisdiction to enter the order appealed from herein, and, if it did, then as to whether or not in so entering the order in this particular case, he abused that power of discretion.

The motion involves the construction of section 20, ÍÍ 38, ch. 53, Smith-Hurd St., Cahill’s St. ch. 53, ft 34. It reads as follows: “Upon reference of any matter to the master in chancery the court may, in its discretion, at the time of such reference or any subsequent time, order any party seeking to offer evidence before the master to deposit with the clerk of the court such sum or sums as may be fixed by the court to secure the payment of any part or all of the costs of such reference ; and the court may, in its discretion, before the master shall be required to make a report in any cause, order the payment of all costs incurred before the master, the same to be taxed equitably in such manner as directed by the court.”

The position of the appellant is that, in view of the state of the record, the entering of the order by the chancellor was an abuse of his discretion, if it was a discretionary matter at all. .Appellant takes the further position, that the order of the chancellor requiring it to pay the master’s costs at an intermediate stage of the proceeding is a final and irrevocable order.

In chancery cases the question of costs rests very largely in the discretion of the chancellor, and the courts will interfere only in case of abuse in the exercise of such discretion. Merle v. Beifeld, 275 Ill. 59A-628.

In chancery cases the taxing of costs is ordinarily in the discretion of the court and if no abuse of discretion is shown the action of the court will stand on appeal. Carroll v. Tomlinson, 192 Ill. 398.

Courts of equity have a large discretion in the matter of costs and frequently give costs in intermediate stages of the case without waiting for a final decree. Colehour v. Bass, 143 Ill. App. 530-538; 11 Cyc. 98; Avery v. Wilson, 20 Fed. 856.

Ordinarily the payment of costs is not enforced until final judgment is rendered and the costs had been taxed and inserted therein. In this State, it has been held, a fee bill could be entered against one of the parties without regard to the result of the suit. German American Sav., Loan & Bldg. Ass’n v. Trainor, 293 Ill. 483-489.

The statute provides that upon the complainant dismissing his bill in equity or the defendant dismissing the same' for want of prosecution, the defendant shall recover against the complainant full costs; and in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not; and the payment of costs, when awarded, may be compelled by execution. Cahill’s St. ch. 33, ff 18; section 18, ch. 33, Smith-Hurd Rev. • St.

It is further provided by the Costs Act (Cahill’s St. ch. 33, TT18) that on the dismissal of a bill, the defendant shall recover costs, but in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not, and that discretion will not be reviewed, except for abuse. Jentink v. County of Latee, 244 Ill. App. 370-378.

An order of the court fixing the master’s fees and providing that the complainant should only pay one-half of the said costs is subject to and changed by the further order of the court, dismissing the bill at the complainant’s costs. German American Sav., Loan & Bldg. Ass’n v. Trainor, 293 Ill. 483-488.

In a suit in equity the court may, on motion and notice to the complainant for cause shown, make an order according to the state of the suit to speed the cause within a reasonable time, to be fixed in such order, and, on failure to comply therewith, may dismiss the suit for want of prosecution. Cahill’s St. ch. 110, if 21; section 21, ch. 110, Smith-Hurd Rev. St.

The. court may dismiss a cause for noncompliance with a rule entered against a plaintiff to file a pleading or take some other step in the cause, where no sufficient excuse is given. McClay v. Williamson, 247 Ill. App. 141-147.

The trial court may dismiss a suit for failure of complainant to prosecute with due diligence, where no sufficient cause is presented, and this power exists independently of any statute. Epley v. Epley, 328 Ill. 582-585.

It will be observed that the appellant takes the position that the order of the trial court, requiring it to pay the master’s costs at an intermediate stage of the proceedings, is a final and irrevocable order. By inspection of the order it will be found that the court did not tax the costs against appellant but only required the payment of said costs, by the appellant within 20 days. This .order is subject to the final order of the court taxing costs. German-American Sav., Loan & Bldg. Ass’n v. Trainor, supra.

The propriety of the trial court in entering an order sua sponte requiring the master to report his charges and costs is questioned by the appellant. Such power is vested in the trial court. Metropolitan Trust & Sav. Bank v. Perry, 194 Ill. App. 277-287; Kellner v. Schmidt, 237 Ill. App. 428-440.

In view of the state of the record and of section 20, jf 38, ch. 53, Smith-Hurd Rev. St., Cahill’s St. ch. 53, jj 34, we are of the opinion that the court had jurisdiction to enter the character of order as was entered herein; that the court was authorized by reason of said statute to make the order directing the appellant to pay the costs, and that the court in making such order, the same was subject to the final order of the court in taxing costs.

There is nothing in the record to show an abuse of the power conferred upon the court nor of the discretion lodged in the court, and, in the absence thereof, it will be presumed that the court was warranted in entering the order of which appellant complains.

We are therefore of the opinion that the order of the circuit court of Rock Island county should be affirmed, which is accordingly done.

Affirmed.


text:
    National Malted Food Corporation, Appellee, v. William J. Crawford and Donald L. Beezley, Trading as Fey Hotel Operating Company, Appellants.
    Gen. No. 8,074.

      Opinion filed September 24, 1929.
    Herbert T. Landauer and Edward P. Allen, for appellants.
    Ira J. Covey, E. L. Covey and Chas. Wesner, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

National Malted Food Corporation, appellee, instituted a suit in replevin in the county court of Peoria county, against William J. Crawford and Donald L. Beezley, partners doing business as Fey Hotel Operating Company, appellants, to recover possession of a quantity of malted products. Appellee filed its declaration against the appellants, which declaration contained the usual averments in replevin and also a count in trover, charging conversion of the property mentioned in the declaration, and praying a judgment against appellants for the value of the property.

It appears that one L. E. Boulware was traveling-salesman for appellee, National Malted Food Corporation of Chicago, and took to appellants’ hotel in Peoria samples of various kinds of malted milk which he was selling for appellee. He registered at the Fey Hotel, which is operated'by appellants. He brought with him the products in question and on, or about, November 11, 1927, he left the hotel owing $61.65, for board and accommodations. Appellants detained his goods, claiming a lien thereon, and afterwards gave notice and sold them to satisfy such lien. These facts are set up by appropriate, counts of the declaration and other pleadings. The amended replications filed by appellee,' denying ownership of the property by Boulware, averred ownership in itself, and that appellants had. knowledge of such ownership at the time the products were brought to the hotel.

Appellants interposed a demurrer to the amended replications, which was overruled, whereupon appellants elected to stand by their demurrer, and judgment was entered against them for $200, and this appeal followed.

There is but one question involved in this proceeding, and that is, whether or not an innkeeper is entitled to a lien upon luggage and property brought into the hotel by a guest, without regard to the question of ownership. A great number of authorities have been cited by counsel for the respective parties, and there seems to be but little, if any, chance to reconcile them.

Section 2 of chapter 71, Smith-Hurd Rev. St., Cahill’s St. ch. 71, If 2, being an act for the protection of innkeepers, provides: “Every hotel proprietor shall have a lien upon all the baggage and effects brought into said hotel by his guests, for any and all proper charges due him from such guests for hotel accommodations, and said hotel proprietor shall have the right to detain such baggage and effects until the amount of such charges shall have been fully paid, and unless such charges shall have been paid within sixty days from the time when the same accrued, said hotel proprietor shall have the right to sell such baggage and effects at public auction, after giving ten days’ notice, of the time and place of such sale.”

Paragraph 57 of chapter 82 of Smith-Hurd Rev. St., the Lien Act rights, Cahill’s St. ch, 82, If 41, reads as follows: “Hotel, inn and boarding-house keepers shall have a lien upon the baggage and other valuables of their guests or boarders brought into such hotel, inn or boarding-house by such guests or boarders, for the proper charges due from such guests or boarders for their accommodations, board and lodgings, and such extras as are furnished at their request,”

It will be noted that by section 57 of the Lien Act, a lien is given only on the “baggage and other valuables of their guests” while section 2 of the Innkeeper’s Act, the lien is on “all the baggage and effects brought into said hotel by his guests.” It is very evident from section 2 of the Innkeeper’s Act, that the legislature intended to give a lien on all the property brought by the guests into the hotel, even though the innkeeper has notice that such property belongs to another.

Under the common-law rule the authorities universally hold that the lien of the innkeeper is coextensive with his liability.

In the first and second special pleas to appellee’s declaration, it is averred that L. E. Boulware, the guest, brought certain mentioned property and effects into the said Hotel Fey “and then and there, the said Boulware, as such guest, requested the appellants, as such innkeepers, to place the property in a safe place and to care for the same.” Under these conditions, appellants, as such innkeepers, became liable, as insurers, under the common-law rule for the safety- of the property intrusted to the innkeeper.

The common-law rule in England and its ancient origin is stated in Robins v. Gray (1895), L. R. 2 Q. B. Div. 501, as follows: “I have no doubt about this case. I protest against being asked, upon some new discovery as to the law of innkeeper’s lien, to disturb a well-known and very large business carried on in this country for centuries. The duties, liabilities and rights of innkeepers with respect to- goods brought to inns by guests are founded, not upon bailment, or pledge, or contract, but upon the custom of the realm with regard to innkeepers. Their rights and liabilities are dependent upon that, and that alone; they do not come under any other head of law. What is the liability of an innkeeper in this respect? If a traveler comes to an inn with goods which are his luggage — I do not say his personal luggage, but his luggage — the innkeeper by the law of the land is bound to take him. and his luggage in. The innkeeper cannot discriminate and say that he will take in the traveler but not his luggage. If the traveler brought something exceptional which is not luggage — such as a tiger or a package of dynamite —the innkeeper might refuse to take it in; but the custom of the realm is that unless there is some reason to the contrary in the exceptional character of the things brought, he must take in the traveler and his goods. He has not to inquire whether the goods are the property of the person who brings them or some other person. If he does so inquire, the traveler may refuse to tell him, and may say, ‘What business is that of yours? I bring the goods here as my luggage and I insist upon your taking them in,’ or he may say: ‘They are not my property, but I bring them here as my luggage and I insist upon your taking them in.’ . . . Then the innkeeper’s liability is not that of a bailee or pledgee of goods; he is bound to keep them safely. It signifies not, so far as that obligation is concerned, if they are stolen by burglars, or by servants of the inn, or by another guest, he is liable for not keeping them safely unless they are lost by the fault of the traveler himself. That is a tremendous liability; it is a liability fixed upon the innkeeper by the fact that he has taken the goods in, and by law he has a hen upon them for the expense of keeping them as well as for the cost of the food and entertainment of the traveler. By law that lien can be enforced, not only as against the person who has brought the goods into the inn, but against the real and true owner of them. That has been the law for two or three hundred years, but to-day some expressions used by judges, and some questions (immaterial, as it seems to me) which have been left to juries, are relied on to establish that if the innkeeper knows that the goods are not the goods of the person who brings them to the inn, he may refuse to take them in; or, if he does take them in, he has no lien upon them. . . . Now, is there any decided case in which it has been held that, although goods have been brought to an inn as the luggage of the traveler and received as such by the innkeeper, he has no lien upon them if he knows that they are not the goods of the traveler? There is not one such case to be found in the books. . . . If we were to accede to the argument for the appellants, we should be making a new law, and our decision would produce in very many cases great confusion and hardship. I am of opinion that an innkeeper is bound to take in goods with which a person who conies to the inn is traveling as his goods, unless they are of an exceptional character; that the innkeeper’s lien attaches, and that the question of whose property the goods are, or of the innkeeper’s knowledge as to whose property they are, is immaterial.”

The writers in encyclopedias and textbooks with singular unanimity have asserted that an innkeeper has a lien at common law upon all goods in the rightful possession of his guests for the value of the guests’ entertainment. The American and English Encyclopedia of Law (2nd Ed., vol. 16, p. 548) says: “Corresponding to the extraordinary liabilities which the law imposes on innkeepers is the extraordinary privilege of a lien on the effects of guests for the amount of the reasonable charges for the guests’ entertainment. . . . It is essential to the existence of the lien that the goods, on which it is claimed, should have been brought to the inn by a person coming in the character of a guest, but it is not essential that the guest should, in all cases, be the owner of the goods.”

The Encyclopedia of Law and Procedure (vol. 22,' p. 1090) says: “Where a guest brings to an inn, goods ostensibly his, the lien of the innkeeper attaches to the goods, although they were, in fact, the goods of a third person.”

In Wait’s Law and Practice (5th Ed., vol. 1, p. 655) it is said: “The law gives to any innkeeper a, lien, whether the goods are the property of the traveler or the property of third parties from whom it has been hired, or even fraudulently taken or stolen, if the innkeeper has no notice of the wrong, and acts honestly.”

In Parsons on Contracts (7th Ed., vol. 2, p. 156) it is said: “An innkeeper has a lien on the property of the guest (not on his person) for the price of his entertainment even if he be an infant and he has this lien on goods, brought to him by a guest, although they belong to another person.”

In Overton on the Law of Liens (sec. 123, p. 150) it is said: “If property, goods, horses or the like, are brought by a guest to an inn at which he obtains accommodations and leaves the property in custody of the innkeeper, it seems the lien will attach thereto, whether it belonged to a guest or to a third person for whom the guest is bailee, or indeed even if it had been stolen by the guest. For the innkeeper is but to receive and entertain the guest, and when unaccompanied by any suspicions, would not be justified in inquiring into the title to the property delivered by the guest to his possession. Possession is prima facie evidence of ownership. ’ ’

In Edwards on the Law of Bailments (3rd Ed., sec. 474, p. 363) it is said: “The relation of innkeeper and guest being established, the lien covers the goods, baggage and property of the guest and all such things as the guest brings with him; it extends to whatever the guest brings and the innkeeper receives; it is not limited to property of the guest or to things of material or intrinsic value. . . . The innkeeper is bound to receive the guest and cannot stop to investigate his title to the property he brings with him, and it may be added, he is also liable for the safe keeping of the goods, though they may be the property of a third person.”

In Jones on Liens (2nd Ed., sec. 499, p. 303, vol. 1) it is said: 1 ‘Thus it has become the settled law with reference to this lien, that there is no distinction between the goods of a guest, and those of a third person brought by a guest, and in good faith received by the innkeeper as the property of the guest. The innkeeper cannot investigate the title of property brought by his guest, and is bound, unless there is something to excite suspicion, to receive, not only his guest, but his horse' or other property brought by him as belonging to him, because it is in his possession.”

-And in section 501, p. 304, it is further said: “It is now settled, however, that the lien is not limited to such things as a guest'ordinarily takes with him. An innkeeper who receives a piano in his character as innkeeper, believing it to be the property of his guest, is entitled to a lien upon it for his guest’s board and lodging, although in fact, the piano is the property of another person who had consigned it to the guest to sell on commission.”

In Schouler on Bailments and Carriers (3rd Ed., sec. 326, p. 327) it is said: “The law grants him (the innkeeper) as security for unpaid charges a lien upon all movable property which the guest may have brought with him to the house and placed in the regular custody of the innkeeper as bailee. Even where the thing belonged to a third person and the guest himself had only a bailee’s right therein, or was an agent for the owner, the innkeeper’s lien will attach, provided only he received the property on the faith of the innkeeping relation. And the innkeeper’s knowledge that the guest did not own the goods does not affect the case unless he knew that the possession was wrongful. . .’ . An innkeeper’s rightful lien ought fairly to be co-extensive with- his liability for all such property of other persons.”

In Story on Bailments (9th Ed., sec. 476, p. 446) it is said: “It has been said that the horse of a guest can be detained only for his own meals and not for the meals and expenses of the guest. The reason is said to be, that chattels are in the custody of the law for the debt which arises from the thing itself, and not for any other debt due from the same party, for the law is open to all such debts and doth not admit private persons to make reprisal. This may be correct as to all debts than the debts contracted by the party as a guest, but there seems reason to doubt, whether the lien of the innkeeper does not extend to all the goods which a guest has at an inn for all his expenses there. The general rule seems in favor of such a lien, whether any expense has been incurred on the particular goods or not. The cases cited to support the opposite doctrine do not seem to justify it.”

In Wharton’s Law of Innkeepers (page 118) it is said: “The innkeeper has, therefore, a lien upon all goods brought by a guest. . . . He is not bound to inquire whether his guest is the owner of goods he brings with him to the inn, but only whether he comes as a guest, but he is bound to receive the goods, whatever .their nature, provided he has sufficient accommodations, and has, therefore, a lien upon such goods which cannot be defeated even by the true owner.”

In Waters & Co. v. Gerard, 189 N. Y. 302, the court in discussing the extent of innkeeper’s lien among other things said: “Unless the innkeeper’s lien extends to all luggage and goods which the guest brings to the inn, and for which the innkeeper becomes responsible as an insurer, an opportunity is afforded by which great fraud may.be perpetrated upon the innkeeper, through a relative or other person claiming the ownership of the luggage and goods in the possession of the guest. So long as public policy requires that an innkeeper be held to the extraordinary and. severe responsibility prescribed by the common law, the same considerations of public policy require that the rule of common law be retained in its entirety and that the innkeeper have a lien upon the luggage and goods in the possession of the guest for payment of his reasonable charges. All property is held subject to such general regulations as are necessary to the common good and the public welfare. ’ ’

In Eden v. Drey, 75 Ill. App. 102-105-106, the court announces the following rule in relation to the liability of an innkeeper: “The loss of the goods of a guest, while at an inn, is presumptive evidence of negligence on the part of the innkeeper. . . . And in case of such loss ‘the innkeeper can alone absolve himself from liability by showing that the loss ... occurred without any fault whatever on his part, or by the fault of the guest. ’ ”

The responsibility of an innkeeper is not necessarily limited to such baggage as is carried for the convenience of travel, but extends as well, to merchandise carried by a guest when received by the innkeeper. Eden v. Drey, supra.

In Baldwin Co. v. Keeley, 198 Ill. App. 287, the court construed the Innkeeper’s Act (Cahill’s St. ch. 71, 2; section 2, ch. 71, Smith-Hurd St.) providing for a lien upon all “baggage” and “other valuables” and “effects” brought into a hotel by a guest to include a player piano.

In Baldwin Piano Co. v. Congress Hotel, 243 Ill. App. 118, the court sustained a lien of an innkeeper by virtue pf (Cahill’s St. ch. 71, fí2; section 2, ch. 71, Smith-Hurd St.) holding a lien, where the relation of innkeeper and guest existed, to' be superior to the rights of the company from whom the piano was bought, holding an unrecorded and unacknowledged mortgage upon it.

Brown Shoe Co. v. Hunt, 103 Iowa 586, 39 L. E. A. 291-292, was an action in replevin, which the Brown Shoe Company, a Missouri corporation, instituted against Frank Hunt of Sioux City, Iowa, who was the proprietor of the New Oxford Hotel in said city. It appears that a man by the name of Sheehan was a traveling salesman for the Biown Shoe Company, and applied for, and was furnished, accommodations in said hotel, such accommodations being at the value of $68.60, which remained due and unpaid at the time the said Sheehan left the hotel. The goods and chattels that he brought there as a guest remained at the hotel and were taken under the writ of replevin, sued out by Brown Shoe Company. The goods and chattels claimed under a lien were at all times the property of the Brown Shoe Company and were the property of the Brown Shoe Company at the time the manager of the hotel took possession of them. The plaintiff’s ownership of the goods, upon which defendant claimed a lien, was well known to the defendant, the proprietor of the hotel, to be in the plaintiff.

The cause was tried and judgment entered in favor of the proprietor of the hotel for the amount due for accommodations furnished Sheehan.

The Iowa statute provides: “All hotel, inn or eating-house keepers shall have a lien upon, and may take and retain possession of, all baggage and other property belonging to, or under the control of, their guests, which may be in such hotel, inn, or eating-house, for the value of their accommodations and keep, and for all money paid for, or advanced to, and for such extras and other things as shall be furnished such guests, and such property so retained shall not be exempt from attachment or execution to the amount of the pr.oper and reasonable charges of such hotel, inn, or eatings house keeper, against such guests, and costs of enforcing the lien thereon.”

In its decision, the court among other things said: “It appears from the statement of facts that defendant knew that the goods upon which he claims a lien did not belong to his guest, but were the property of the plaintiff. It is therefore contended that his innkeeper’s lien did not attach to them. Counsel cite several cases in support of such contention. . . ' .

Under out1 statute, the innkeeper may ‘take and retain possession of all baggage and other property belonging to, or under the control of, their guests, which may be in such hotel or inn.’

“Clearly, the legislature intended by the words used to give a lien, not only upon the property in fact belonging to the guest and which was in the hotel or inn, but likewise a lien upon property placed therein which was under the guest’s control. The guest in this instance was a traveling man, selling goods by sample, and the lien is claimed upon these sample goods and the receptacles in which they were contained. These goods were used in the prosecution of his business as a salesman. The nature and character of his occupation were such that plaintiff must be held to know he would be compelled to stop at hotels or inns, and that, in the proper prosecution of his avocation, he would need his sample goods in such hotels or inns. The statute clearly covers such goods- as they were, under the control of the guest. ’ ’

We are not unmindful of the holdings of the different courts of the country upon the question here involved. It will be found, however, that the holdings as contended for by appellee are based upon the wording of the statute involved in the particular case. We are inclined to commit ourselves to the doctrine, that an innkeeper has a lien on the property brought in by a guest, whether the guest is the owner of it or not. This holding seems to be consistent with good reasoning, common honesty and fair dealing. The greater class of hotel guests are traveling salesmen. Most of them go into a hotel with grips and trunks which the hotel keeper must know, from experience, belonged to the salesman’s employer. He has little with him of his Own personal property, except, possibly, wearing apparel.

It is commonly known and understood that samples do not belong to the salesman but belong to the house which he represents. It is therefore necessary, in the very conduct of his master’s business, that he patronize hotels. Then is it reasonable to say, that the lien extends only to the few personal effects which the salesman owns, and not to the trunks and samples which his employer has committed to his possession and care. If his samples are not subject to the lien then the salesman might stay a considerable length of time at a hotel, incur a substantial bill, and then walk out without fear of having his baggage molested. He would be in a position to say to the innkeeper “you have furnished me accommodations but my baggage belongs to my master. ’ ’ Any other rule than the one we have announced opens the gate to one who is so constituted to practice fraud upon an innkeeper.

It is suggested by appellee that to put the construction upon the Innkeeper’s Act as contended for by appellants would deprive appellee of its property without due process of law.

The samples furnished Boulware, as a salesman, were placed in his hands, and the possession thereof delivered to him, for the purpose of selling the goods and wares of the appellee. The salesman was the agent and representative of appellee. Appellee knew from the very nature and character of the business in which its salesman was engaged, that it would be necessary for him to stop at hotels and obtain lodging and take his samples with him. The innkeeper, to whom he applied for accommodations, became in effect an insurer of his luggage against all° loss and damage not occasioned by the act of Grod, the public enemy, or neglect of the guest himself. It is only reasonable to say that the lien of the innkeeper should be coextensive with his liability.

Section 2 of chapter 71 of said Innkeeper’s Act, Ca-hill’s St. ch. 71, H 2, was evidently enacted with the view of covering just such a case as arises out of the fact in this proceeding. The conclusion reached doe's not do violence to the statute in question.

Furthermore, a statute purporting to give innkeepers a lien on the goods of their guests cannot be held unconstitutional when such statute does not extend beyond the rule established by the common law nor beyond the requirements of public policy. Waters & Co. v. Gerard, 189 N. Y. 302, 121 Am. St. Rep. 886.

We conclude, therefore, that the action of the court in overruling the demurrer to the amended replications was erroneous and' that the judgment of the county court of Peoria county should be reversed and the cause remanded, which is accordingly done.

Reversed and remanded.


text:
    Samuel Abrams, Appellee, v. M. A. Love et al., Appellants.
    Gen. No. 7,979.

      Opinion filed October 1, 1929.
    North, Linscott, Gibboney & North, Clarence Darrow and William H. Holly, for appellants.
    Hall & Dusher, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

In 1925, Samuel Abrams, appellee, filed a bill in the circuit court of Winnebago county, against M. A. Love, Frank 0. Howe, Henry P. Lewis, M. F. Ambrosious, N. E. Simonsen, John E. Stephens and C. F. Buman, alleging that one M. F. Ambrosious sold to him twenty-five shares of the capital stock of the Winnebago Production Company, or corporation, for $250; that thereafter he sold to appellee fifteen shares of the capital stock of the Bock Biver Development Corporation for $150; that said corporations were organized for the purpose of producing oil and that the stock of said corporations came within class “D” of Illinois Securities Law, Cahill’s St. ch. 32, tf 254 et seq.; that said corporations did not comply with said law, that M. A. Love and N. E. Simonsen, the appellants herein, were officers and directors of the American Engineering and Development Company, a corporation organized for the purpose of selling stock and drilling for oil and the producing and selling of oil and that said corporation and its officers caused and assisted in the organization of the said Winnebago Production Company and said Rock River Development Corporation and that said last mentioned corporations were organized in behalf of the officers of said American Engineering and Development Company and as subsidiary corporations, with the knowledge and consent of Love and Simonsen, appellants, and with the consent of others who did not join in the appeal of this cause for the - purpose of selling the stock of said Winnebago Production Company and óf the Rock. River Development Corporation and turning over the money received from such sales to said American Engineering and Development Company; that a large proportion of the money received from the sales of the stock of said Winnebago Production Company and the said Rock River Development Corporations was turned over to the said American Engineering and Development Company; that appellants, Love and Simonsen, and others who did not enter into this appeal, assisted in selling the stock of said corporations to appellee and that the same was sold to appellee with their knowledge and consent and for the benefit of said American Engineering and Development Company.

. Separate answers were filed by M. A. Love and N. ,E. Simonsen, appellants, in which they neither admitted nor denied the allegations to the effect that the shares of stock sold to appellee came within class “D” of the Illinois Securities Law, Cahill’s St. ch. 32, 254 et seq. Said appellants each denied that they had anything to do with the selling of said above mentioned stock to appellee or that the American Engineering and Development Company received the proceeds of the sale of shares of stock of the Winnebago Production Company and the Rock River Development Corporation, but charged, whatever funds they received from said last mentioned corporations they received the same in payment for services rendered by the American Engineering and Development Company for said Winnebago and Bock Biver Corporations and for oil leases sold by said American Engineering and Development Company to said Winnebago Production Company and of the'Bock Biver Development Corporations.

A trial was had with the finding and decree in favor of appellee in which decree the court found among other things, that appellants, Love and Simonsen, with others, knew of the organization of the Winnebago Production Company and Bock Biver Development Corporation and that said corporations were organized to further the business of the American Engineering and Development Company, and that each of said appellants are jointly and severally liable for the amount paid by appellee- on said stock and for the amount of solicitor’s fees.

The record discloses, it was agreed that if appellee was entitled to solicitor’s fees that $200 was a reasonable fee.

The court also found from the evidence that the American Engineering and Development Company was a corporation organized for the purpose of developing and promoting oil lands and leases in the State of Kentucky and that appellants, Love and Simonsen were each directors of said corporation and became such prior to the first purchase of stock by appellee and remained such directors during all the time that he was purchasing and paying for said stock; that appellant Love was president of said corporation at the time of the purchasing of said stock and remained so during all the time appellee was paying for the samé; and that appellant Simonsen was vice president of said corporation at the time appellee purchased his stock and so remained during all the time appellee was paying for the same; that Winnebago Production Company was a corporation organized for, and on behalf of, and used by American Engineering and Development Company as a subsidiary company; that Rock River Development Corporation was also organized and used "by American Engineering and Development Company as a subsidiary corporation; that there was an understanding between such corporations that Winnebago Production Company and Rock River Development Corporation would cause their stock to be sold and send the money therefor to the American Engineering and Development Company and in the sales of the stock, appellants knew that sales were being made of stock and that the same were being made for,- and on behalf of, American Engineering and Development Company.

It is urged by appellants that the stock in question did not come under class “D” of the Illinois Securities Law, Cahill’s St. ch. 32, 254 et seq. Appellants further contend that the burden was on appellee to prove the facts which would bring said'stock under class “D.”

Section 3 of the' Securities Act, Cahill’s St. ch. 32, If 256, classifies securities into four general divisions, and are as follows:

“(1) Securities, the inherent quality of which assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘A’;
“(2) Securities, the inherent qualities of which, or in the nature of one or both parties to the sale thereof, assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘B ’;
“ (3) Securities based on established income, which shall be known as securities in Class ‘O’;
‘ ‘ (4) Securities based on prospective income, which shall be known as securities in Class ‘D’.”
All securities other than those falling within classes “A,” “B” and “C” respectively, shall be known as securities in class “D.” The only way therefore, to determine that a stock is in class “D” is to eliminate classes “A,” “B” and “C.”

The charter of the Rock River Development Corporation was offered in evidence. It bears date November 8,1920. It shows that the corporation had been organized for less than a year at the time of the sale of the stock in question; it was fraudulently organized in that the incorporators swore in their statement that they had paid in large sums of money in cash, when in fact, according to the evidence in the case, they had not paid anything.

The corporation pretended to execute a contract with American Engineering and Development Company at a time when appellants, Love and Simonsen, were stockholders and took an active part. The- said contract provided for the payment of a large sum of money for something of which none of the directors of the purchasing corporation knew anything; they had not seen it; they did not even know what it was; the directors themselves even denied having made the contract; that is, they had no recollection of the making of the contract. Notwithstanding, it involved over $40,000 — by a corporation into whose treasury nothing had been paid.

It is quite apparent that the stock of a corporation, such as the Rock River Development Corporation was nothing but a speculation stock. The evidence fails to disclose that said stock has a single element that entitled it to be considered in the class of securities known as “A”, “B” and “C”.

The testimony further shows that the Winnebago Production Corporation was a like kind and had for its object like purposes, and according to the testimony, was organized for the purpose of selling its stock, turning the money into the American Engineering and Development Company for the latter’s use and in fact, that was what was done with the money.

From an examination of the evidence we find that neither the Winnebago Production Company nor the Bock River Development Corporation were qualified to sell stock under the laws of the State of Illinois and particularly under the Illinois Securities Law, Cahill’s St. ch. 32, if 254 et seq., and that neither of said corporations have complied with the law relating to the sale of securities; that the stock of Rock River Development Corporation and the stock of the Winnebago Production Company were each stocks that came within the provisions of the Illinois Securities Law, Cahill’s St. ch. 32, Ü 254 et seq., and belong to class “D.”

It also appears that the American Engineering and Development Company was a corporation organized for the purpose of developing and promoting oil lands and leases in the State of Kentucky; that the Winnebago Production Company was a corporation organized for and on behalf of and used by the American Engineering and Development Company as a subsidiary company; that the Rock River Development Corporation was also organized and used by the American Engineering and Development Company as a subsidiary corporation.

The appellants by their answer neither admitted nor denied that the securities came within class “D.”

It is quite evident that had they fallen within any classes other than “D,” it would have appeared in their answer. The decree recites that the court found that the appellants admitted in open court that the stocks were within class “D.”

Since there is nothing to show that the securities belong to either class “A”, “B” or “C”, there is no other place for them to lodge, except as class “D” securities.

Furthermore, nothing is offered on the part of appellants that' tends to show that they belong to any other class than class “D.”

It is argued by the appellants that there is no evidence that the stock did not appear in the list of securities dealt in on the New York, Chicago, Boston, Baltimore, Philadelphia, Pittsburg, Cleveland or Detroit Stock Exchange, or did not appear in Moody’s or Poor’s Manual.

In Abkau v. Grassie, 262 Ill. 636, at page 638, the court said: “The general rule is that the burden of proof rests upon the one who substantially asserts the affirmative of the issue, — that is, upon the party who would be defeated if no evidence at all were offered. (Stephens v. St. Louis Union Trust Co., 260 Ill. 364; 1 Greenleaf on Evidence, 16th Ed., sec. 74). The burden of proof does not depend upon the form of the proposition. The weight of authority is, that whoever asserts a claim or defense which depends upon a negative must establish the truth of the allegation (Jones on Evidence, 2d Ed., sec. 179), for that particular fact is essential to his case.”

In Trakas v. Cokins, 224 Ill. App. 327-330, the court said: “We readily assent to the principles announced in the above quotation. The purpose of the legislature in enacting the statutes in question appears to have been to prevent fraud in the sale and disposition of certain kinds of stocks, bonds, or other securities, and to effectuate this purpose the legislature saw fit to provide a remedy to one injured by infractions of the act. The evident intent of the legislature was to protect purchasers of corporation securities by providing in the act for the doing of certain things by sellers of or dealers in such stocks or securities. The act provides that a purchaser of such stock or securities may have a remedy where it is shown that the sales were made without a license, as provided by the act, of stocks or securities not exempted thereunder.

“Proof of the negative facts that the securities were not listed in a standard manual approved by the Secretary of the State, or that the current price of the stock sold had not been published in the market reports of a daily newspaper or had not been listed upon any organized stock exchange in the United States were facts which in their nature could not have been shown by the plaintiff. These facts rested peculiarly within the knowledge of the defendant and the law in such circumstances very wisely, and as an exception to the general rule, placed the burden of proving them upon the defendant.”

In Anderson v. Irwin, 101 Ill. 411, the Supreme Court said: “The law is intended to be practical in its application to the varied transactions and circumstances which go to make up the affairs of life, and which are constantly giving rise to legal controversies that have to be settled in courts of justice. Indeed, most of the rules of evidence have been established with direct reference to this principle. ’ ’

In the case of Prentice v. Crane, 234 Ill. 302, 310, the Supreme Court held: “The rule of the common law as laid down by Gfreenleaf and approved by numerous decisions of this court is, that where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. This rule is applied to both civil and criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done' by any persons except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, or the like. Here the party, if licensed, can immediately show it without the least inconvenience, whereas if proof of the negative were required the inconvenience would be very great. (1 Greenleaf on Evidence, sec. 79; Harbaugh v. City of Monmouth, 74 Ill. 367; Weber v. Christen, 121 Ill. 91.).”

To place the burden upon the plaintiff of proving that the stock in question was not exempted under the act would have the efféct of destroying the beneficial purpose intended by the legislature when it enacted the statute.

Furthermore, the offense lies in selling “Class D” securities without full compliance with the securities law. If there has not been a compliance with the law, appellants in error are guilty of violating the law. People v. Love, 310 Ill. 558-567.

Clause (1) of section 37 of the Securities Act, Ca-hill’s St. ch. 32, 290, provides: “Every sale and contract of sale made in violation of any of the provisions of this Act shall be void at the election of the purchaser, and the seller of the securities so sold, the officers and directors of the seller, and each and every solicitor, agent or broker of or for such seller, who shall have knowingly performed any act or in any way furthered such sale, shall be jointly and severally liable, in an action at law or in equity, upon tender to the seller or in court, of the securities sold, to the purchaser for the amount paid, the consideration given or the value thereof, together with his reasonable attorney’s fees in any action brought for such recovery.”

Clause (2) reads as follows: “In any action civil or criminal where the seller or issuer, relies for his defense upon any of the exemptions provided for in this Act, the burden of proof to establish such exemption shall be upon such issuer or seller.”

Clause (4) of said section 37 of the Securities Act, Cahill’s St. ch. 32, ft290, also reads as follows: “For the purposes of this Act all persons, solicitors, agents, brokers, officers and directors of the seller, who shall sell or offer for sale, securities in violation of the provisions of this Act, or who shall in any manner authorize, aid or assist in any unlawful sale or offering for sale, shall be deemed equally guilty, and may be tried and punished in the county in which said unlawful sale or offering for sale was made, or in the county in which the securities so sold or offered for sale, were delivered or proposed to be delivered to the purchaser thereof.”

It is insisted that the record fails to show that the appellants are brought within the terms of "section 37 of Illinois Securities Law, Cahill’s St. ch. 32, H 290.

The appellants fail to distinguish between the “issuer” of stock and one who may be the seller of that same stock. It is not necessary that the “seller” be the “issuer” or that the “issuer” be the “seller.”

In view of the state of the record, we have reached the conclusion (1) that the American Engineering and Development Company sponsored the organization of the Bock River Development Corporation and the Winnebago Production Corporation; (2) that the American Engineering and Development Corporation Was developing for the Rock River Development Corporation and the Winnebago Production Corporation and knew they could pay for such developing only out of money derived from the sale of their stock; (3) that in order to facilitate the sale of stock of the Rock River Development Corporation and Winnebago Production Company, the American Engineering and Development Company paid to soliciting agents 20 per cent commissions for selling the securities or stock.

This relation sustained by the American Engineering and Development Company to the Rock River Development Corporation and the Winnebago Production Corporation constituted the American Engineering and Development Company a seller of the Rock River and Winnebago stock within the meaning of that word as used in the statute.

It also appears from the evidence (1) that Love was president and Simonsen was vice president of the American Engineering and Development Company while the stock in the Rock River and Winnebago Companies was being sold and at the time appellee purchased his stock therein; (2) that they each did and said things calculated to induce prospective buyers to purchase the Rock River and Winnebago stocks and to encourage and assist the solicitors in making sales thereof. It follows, appellants thus constituted themselves agents of or for the seller and brought themselves within the class of persons designated in the statute as liable to the purchaser.

To agree with the contention of appellants that because it does not appear that either Love or Simon-sen took part in making the particular sales involved in this, suit and because they both denied they had any knowledge of the sales to appellee, they cannot be held liable to the purchaser, is in effect, to hold that they might be liable criminally for knowingly performing-some act or in some way furthering sales generally but could escape civil liability as to any resulting sale they did not specifically further or know about. A rather anomalous result. It would seem more consonant with reason to hold that when one knowingly performs acts and in some way furthers sales generally, he shall be liable to any purchaser the same as if what he did to further sales generally had been directed to the consummation of each sale that results whether he had knowledge of the effort of a solicitor to make that particular sale or not.

As we view this record there is no merit in the contention of the appellants. They are liable to the appellee for the sum he paid for the stock purchased as charged in the bill of complaint, together with solicitor’s fees in the circuit court which it was stipulated if he is entitled to fees at all, $200 would be a reasonable fee. -

We conclude therefore, that the judgment of the circuit court of Winnebago county should be affirmed which is accordingly done.

The record discloses that a motion has been made and is now pending in the circuit court to fix the fees for solicitors for appellee for the trial of the cause in this court. We make no order in this court relative to the question of fees to which appellant may be entitled for representing appellee in this court.

Judgment affirmed.


text:
    H. F. Saltsman for use of R. W. Gough, Defendant in Error, v. Springfield Life Insurance Company, Plaintiff in Error.
    Gen. No. 7,995.
    Opinion filed June 29, 1929.
    Rehearing denied October 16, 1929,
    H. E. Fullenwider and Orman Ridgely, for plaintiff in error.
    Horace H. Baker and Kennedy & Kennedy, for defendant in error; Thomas Kennedy, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

This is a garnishment proceeding in which H. F. Saltsman, for the use of R. W. Gough, defendant in error, attempts to reach the proceeds of a $2,000 benefit certificate, issued on the life of Anna 0. Saltsman in favor of H. F. Saltsman, by the Court of Honor, a fraternal benefit association.

On November 11, 1902, the Court of Honor, a fraternal benefit association, issued its benefit certificate to Anna C. Saltsman, in which H. F. Saltsman was named as beneficiary. On September 27, 1924, the Springfield Life Insurance Company, plaintiff in error, a mutual legal, reserve life insurance company, with the approval of the department of trade and commerce, entered into a contract with the said Court of Honor, in which the Springfield Life Insurance Company agreed to reinsure the members holding certificates in said Court of Honor and to said certificate was attached a rider evidencing said reinsurance, which said rider among other things provides that plaintiff in error “hereby assumes all liability which may have accrued or which shall hereafter accrue under the certificate above designated, while in force, in accordance with the terms of said certificate, and the provisions of the constitution and laws of the Court of Honor Life Association governing the same as in force at the time said re-insurance contract became effective.”

The facts were stipulated, and among other things disclosed that the assured died on April 1, 1927, and was, at the time, in good standing.

Plaintiff in error, said garnishee, answered that it had $2,000 in its possession belonging to H. F. Salts-man, against whom R. W. Gough had obtained a judgment for $868.70. Said garnishee, in its answer, pleaded that by reason of the laws of the State of Illinois, the proceeds of a fraternal benefit certificate were exempt from attachment, garnishment or other process and that said court was without jurisdiction to enter a final judgment against said Springfield Life Insurance Company, plaintiff in error, as such garnishee. A jury Was waived and a trial had by the court without the intervention of a jury, and on a hearing thereof the court entered judgment against said garnishee. To reverse said judgment this writ of error is prosecuted.

It is insisted by the defendant in error that the court cannot consider the errors assigned herein for the reason that the bill of exceptions does not show that it contained all of the evidence. The stipulation of facts, to which reference was made, contained the following statement: “It is further stipulated and agreed by and between the parties that trial by jury is waived, and that this cause may be tried by the court without a jury, upon the above stipulation of facts.” The stipulation referred to certain documentary evidence which accompanied the same and was made a part thereof. The court, in its order, says that “having considered said stipulation and said exhibits, and being advised in the premises, orders and adjudges that the conditional judgment heretofore entered herein against the defendant garnishee, be made final.”

We are of the opinion that the contention that the. court cannot consider the errors assigned herein is not well taken, as the record shows the evidence which the court considered on said hearing.

It is next urged by the defendant in error that the plaintiff in error is not in a position to question the finding and judgment of the trial court, and relies on the rule announced in Madison & Kedzie State Bank v. Garfield Park Storage Co., 324 Ill. 222.

It appears that the holding in that case was based upon a record which had gone up from the Appellate Court. In common-law cases the Supreme Court does not pass upon questions of fact, except to determine whether or not on a motion to direct a verdict, as a matter of law, the evidence was sufficient to require the submission of the case to a jury. On an appeal or writ of error, however, to the Appellate Court, that rule does not obtain. Babbitt v. Grand Trunk Western Ry. Co., 285 Ill. 267-270; Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162.

In the latter case the court at page 163 said: “The Appellate Court entered an order affirming the judgment of the trial court, declining to review that judgment on its merits on the ground that no propositions of law had been submitted to the trial court by either side. It bases its conclusion on the reasoning of this court in Babbitt v. Grand Trunk Western Railway Co., 285 Ill. 267, where it was said (p. 270): ‘Where there is no controversy as to the facts and the only question is what judgment shall be entered on the facts in the record, such question is one of law and may be raised and preserved for review here in one of three ways: by demurrer to the evidence, by propositions to be held as law, or by a motion to find for the party.’ . . .

“It is to be noted, however, that all the cases cited by appellee are either appeals from or writs of error to the Appellate Courts. In cases that come to this court through the Appellate Courts the judgments of the Appellate Courts are, under the statute, final and conclusive as to all matters of facts in controversy ; and where the trial is upon the issues of fact, then, unless the record shows that some question of law is raised by exceptions, by instructions, by propositions submitted to the court, or otherwise, it is manifest there is no question involved which this court is permitted to review.”

In Bione v. Bell, 221 Ill. App. 434, the court at page 436 said: “Where no propositions of law are submitted to the court trying a case without a jury, the only questions to be determined on assignment of errors are whether the court erred in its rulings on admission or refusal of evidence, and whether the competent evidence in the record sustains the findings and judgment. ’ ’ To the same effect is Bisencon v. Walters, 203 Ill. App. 28, and Miller v. Mayberry, 203 Ill. App. 58.

Since, in the instant case, there was a stipulation of facts, there can be no question of the court’s ruling on the evidence, so that the only question remaining for this court to determine is whether or not the facts, as stipulated, sustain the judgment of the trial court?

The rule announced in Bione v. Bell, supra, finds support in Schiowitz v. Sleph, 194 Ill. App. 579; Central Funding Co. v. Gibson, 206 Ill. App. 236; Smith v. American Corset Co., 187 Ill. App. 1.

On the facts as stipulated, we are of the opinion that the undertaking by plaintiff in error to reinsure the holders of certificates in the Court of Honor did not have the effect of changing the character of the insurance, nor the terms of the contract as evidenced by the certificate.

Paragraph 504, chapter 73, Cahill’s Revised Statutes, which has to do with fraternal societies, reads as follows: “The money or other benefit, charity, relief or aid to be paid, provided or rendered by any society authorized to do business under this Act, shall not be liable to attachment by trustee, garnishee • or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of a certificate holder or of any beneficiary named in a certificate, or of any person who may have any right thereunder.” '

By reason of the facts as shown by the stipulation, the court should have held the fund involved exempt, and should not have entered final judgment against plaintiff in error as garnishee. We. conclude, therefore, that the order and judgment of the circuit court of Woodford county should be reversed, which is accordingly done,

Reversed,